Chauvel Charles: Subordinate Legislation (Confirmation and Validation) Bill (No 3) — First Reading 
Chauvel Charles: Subordinate Legislation (Confirmation and Validation) Bill (No 3) — First Reading 
[Volume:674;Page:19970] 
CHARLES CHAUVEL (Labour) 
: 
 For people listening to the House on the radio watching on television watching on demand or sitting in the gallery the Subordinate Legislation (Confirmation and Validation) Bill (No 3) might seem to be a strange thing to appear on the Order Paper and it might be worth saying a few words about it. The Minister said in her first reading speech that these annual subordinate legislation (confirmation and validation) bills tend to deal with matters that are uncontroversial. The Opposition is consulted about the bill in advance of its introduction to ensure that there are no matters of controversy. As the Minister pointed out these bills exist because on occasion Parliament makes laws that allow delegated legislation that has a sunset clause to be made because the executive is conscious of the need to bring the subject matter of the order back to the House for consideration as to whether the powers taken under the principal legislation remain necessary for the administration of the particular regime that was set up by the relevant legislation. 
Although it is true that this is a non-controversial bill it is worth considering the sorts of matters that the legislation brings to the House. There is delegated legislation that prohibits trout from being imported into New Zealand. There is delegated legislation that prohibits the export of live cattle for slaughter. That is very topical particularly in Australia at the moment where there are huge concerns around the animal welfare issues that live exports to Indonesia for example are now causing. There is delegated legislation that allows for the automatic increase in tobacco excise; ditto alcohol excise. There are orders referred to in the bill that relate to the export of so-called dual use material which is scientific material that could be used in the manufacture of weapons such as nuclear weapons. 
Then of course there is a reference to the Tariff (New Zealand - Hong Kong China Closer Economic Partnership Agreement) Amendment Order. There is very similar legislation in Australia that is also very topical at the moment. That is the same kind of treaty under which a tobacco company seeks to sue the Australian Government in an international legal forum to prevent it from proceeding with its proposal to plain package tobacco products on the domestic market in Australia. There are very very similar provisions in the treaty between Australia and Hong Kong as there are between New Zealand and Hong Kong. It is worth not minimising the issues that Subordinate Legislation (Confirmation and Validation) bills bring to the House. 
I think it is worth though raising a question about whether this is a good way to legislate. Is it a good use of the scarce time that the House has to allow for up to a 2-hour debate on a matter such as this every year when we all know that other urgent matters that could be dealt with are just languishing on the Order Paper? By my calculations we have 17 more sitting days until we run into the 16 valedictory speeches which have already been scheduled in this term of Parliament by the Business Committee. So I ask whether it a good idea from the point of view of parliamentary procedure to force on to the Order Paper every year this sort of bill for a debate of this nature. Could we do better? 
The Minister made a kind reference to the Regulations Review Committee which I have had the good fortune to chair in this term. She said she was sure that the committee would give the bill careful scrutiny and we will do our best but let me tell members a little bit about the scrutiny that we can in practice give this sort of measure—because we have done it twice already in this Parliament. We write to the relevant departments responsible for the administration of each measure in the validation legislation. We ask whether they still need these powers and invariably they write back and say: “Yes we do. We would like to keep them thank you.” We acknowledge that and then report the bill back to the House. We say that the departments responsible for the legislation would like to keep the powers they already have and that it appears to us that that seems unobjectionable and therefore we recommend to the House that the bill be passed. That is the level of scrutiny that we can effectively give to these sorts of measures because the committee has no other way of knowing whether there is any ongoing utility for the powers. 
We could I suppose in theory apply to the Clerk for an independent adviser to go through each aspect of the legislation and come to an independent view as to whether these powers are still required but we have never considered doing that. It seems to us that if we were to request that sort of resource we would be better advised to reserve it for some issue where there was actually some controversy. 
In reality there is no systematic method of review available to the House despite the form that these bills take for measures contained in them. That is why I raise the question of whether there is a better way to do this sort of thing. Under the current Standing Orders the only way that I can think of that there could be a systematic review of the ongoing need for delegated legislation independent of the empowering legislation requiring that there be a sunset clause or on the making of the order or regulation the imposition by the relevant Minister of a sunset clause is if the Regulations Review Committee were to undertake an inquiry as it did in the last Parliament on the effect of spent legislation. That is certainly a course that is open to the committee but it is not usually done. The question arises of whether there will be the time for that given that an ongoing scrutiny job is required in respect of all existing new delegated legislation. Then there is the complaints jurisdiction which the committee exercises under the Standing Orders when it receives a concern from a member of the public about the operation of an existing regulation. 
Maybe it is time to look at what I understand is the practice in the Commonwealth Parliament in Australia where all delegated legislation is now given a sunset date. My understanding is that the practice is that there should be regulations in force for 10 years and then it is a matter for the responsible Minister or the department to have to come back and make the case for the carrying on in force of the delegated legislation so that there is a justification advanced in every case for every regulation to continue in force. Maybe that is a good way to clean up the red books that sit outside in the lobbies because they do tend to fill up given our executive’s propensity whoever is in power to rely on the regulation-making power. 
I made some similar points when Mr Foss made his maiden speech as a Minister on the dog control legislation because that involved the invocation of what is known as the affirmative resolution procedure. That procedure is invoked not only with dog control legislation but with epidemic preparedness legislation. It was contemplated for the Canterbury earthquake orders but that notion was dropped in favour of the ordinary scrutiny that the Regulations Review Committee can provide. I said on that occasion that maybe the idea of having to come to the House to get specific pieces of delegated legislation confirmed under that procedure was not a great use of the House’s time either and that we had a perfectly good scrutiny committee that could perform this sort of scrutiny without using the time and resources of the House and report as required. I would have to say that similar logic applies to these annual Subordinate Legislation (Confirmation and Validation) bills. They are not a good use of the House’s time and resource. We could be debating much more important substantive legislation but because this is an annual requirement we cannot do so. I do think that when we have legislation such as the Legislation Bill which would reform some of these procedures simply languishing on the Order Paper it is timely to think about how we could do a better job here.