76
But what emerges from the 2004 report of the Regulations Review Committee is
the increasing use of notices, codes of practice and orders that escape the
jurisdiction of the Regulations Review Committee. The definition of regulation
in the Regulations (Disallowance) Act 1989 and the Interpretation Act 1999
should be amended in line with the definition of legislative instrument set out in
the Australian Legislative Instruments Act 2003. There should be an amendment
to the 1989 Act in New Zealand to include provisions that relate to the
establishment of a register of legislative instruments as set out in the Australian
Legislative Instruments Act 2003.
77
What all this material suggests is that New Zealand needs to take account of the
trend to find ways of avoiding its legislative processes becoming overwhelmed.
78 It is clear that the quantity of primary and secondary legislation has increased
markedly in New Zealand in recent years.35 Much of this is inevitable. The
complexity of issues with which Governments must now deal has altered
enormously over a period of 30 years.
79
New Zealand has an unfortunate history in relation to delegated legislation
witness the number of examples of regulations that were made under the
Economic Stabilisation Act 1948, where it was found that constitutional practice
and theory diverged alarmingly. Those excesses led to the passage of the
Regulations (Disallowance) 1989 Act itself.
80
With the development of deemed regulations, affirmative resolution procedures
and increasing use of notices, codes of practice and orders, New Zealand could be
considered to be travelling back towards the place from which it came.
81
A former Chair of the Regulations Review Committee, the Honourable Doug
Kidd, discussing the Committees constitutional watchdog activities, said its work
shows:
36
35
George Tanner Access to Justice: Rhetoric or Reality (paper presented to Australasian
Law Reform Agencies Conference, Wellington 136 April 2004).
36
Hon Doug Kidd Executive v Legislature: The Struggle Continues observations on the
work of the Regulations Review Committee (Occasional Paper No 3, New Zealand Centre
for Public Law, Victoria University of Wellington, 18 May 2001).
25