at this point that the New Zealand Parliament has developed a practice to fast-
track legislation by use of Order in Council. This is the affirmative resolution
procedure that has grown up in relatively recent times.31 The procedure delegates
to the Executive the power to amend certain statutes by Order in Council on
condition that the order is confirmed by resolution of the House of
Representatives. First introduced in 2000, it has been used for the changes to the
Misuse of Drugs Act and the Dog Control Act.
73
The Regulations Review Committee has published an interim report questioning
the procedure. The Select Committee pointed out that in a situation of real
emergency, the urgency procedure for primary legislation would be a better
solution than affirmative resolutions. It said secondly that confirmation Bills may
be a more suitable way of providing enhanced Parliamentary control of
regulations.32
74
The Governments response to this report was interesting. It was:
The Government does not want to see the proliferation of the affirmative resolution
procedure. At the same time, however, there are some limited and exceptional
circumstances where the affirmative resolution procedure is justifiable.33
75
The struggles that the Regulations Review Committee has had with deemed
regulations over many years now is a further example of the problems that
delegated legislation can cause.34 The difficulties with deemed regulations are
that they are not drafted by Parliamentary Counsel. They are not published in the
statutory regulations series. They are not approved by Cabinet. Often they
contain material incorporated by reference which gives rise to problems.
31
Rebecca Prebble The Trouble with Convenience: Problems Arising from the Use of the
Affirmative Resolution Procedure to Amend Legislation (LLM Research Paper, Victoria
University of Wellington, 2005).
32
Regulations Review Committee, Interim Report on the Inquiry into Affirmative
Resolution Procedure [2004] AJHR 1 I6F.
33
Interim Report on the Inquiry into Affirmative Resolution Procedure presented to the
House of Representatives in accordance with standing order 251A(5) (29 September 2004).
34
Regulations Review Committee Inquiry into instruments deemed to be regulations an
examination of delegated legislation: Report of the Regulations Review Committee
(Wellington, July 1999); Inquiry into principles determining whether delegated legislation
is giving the status of regulations (Wellington, June 2004).
24