accountability of the executive government, financial budgeting and authorisations in
addition to law-making. Yet there is resistance to the delegation of the legislative function on
the basis that it is not appropriate for matters of significant policy content.
In its law-making role the modern legislature must depend for efficiency upon agencies
internal and external of government in the identification of needs, research, consultation and
drafting. In each of these areas, it is the nature of government that matters having higher
public profile or pressure will have preference. Even well-researched, relatively non-
controversial proposals from our Law Commission can wait years before being taken into the
legislative programme.
I believe that the lack of room in legislative programmes increasingly is spawning attempts to
get satisfaction from the courts in areas many would say are more appropriate for decisions of
government.
The expressed anxiety towards judges making or changing the law has been matched by, and
may be linked to, the increasing frequency with which broad and open language is employed
in legislation. Perhaps this reflects time pressures on the government and Parliament.
Perhaps it reflects compromises in the political processes. In some cases it results from the
incorporation of international instruments, necessarily drafted in general terms to attract
acceptance. The courts must not only resolve major issues of interpretation but must also
determine the impact of the broadly stated rights and obligations on the common law and on
administrative decision-making.3
Perhaps the most graphic example in this country of open language legislation was s9 of the
State-Owned Enterprises Act 1986. As part of the corporatising of government departments
the Act established certain state-owned enterprises. Section 9 provided that nothing in the
Act should permit the Crown to act in a manner that was inconsistent with the principles of
the Treaty of Waitangi. That was the treaty signed between the British Crown and
representatives of Maori tribes in 1840 by which New Zealand became a British colony. The
Treaty had not hitherto been treated as part of the domestic law of New Zealand and nowhere
were its principles defined. The courts were required to determine whether the vesting by the
3
Tavita v Minister of Immigration [1994] 2 NZLR 257