The ongoing tendency of all Governments to stray from the powers of
constitutional righteousness seduced by the sirens of power, efficiency and
convenience. We are here to educate, guide, persuade, correct, chastise and reform
Government a congenital sinner. Above all, we are here to protect and promote
the rule of law.
82
Legislation, like water, finds its own level. The difficulties reviewed here have
their origins in the difficulty of passing primary legislation. Consideration needs
to be given to whether it is possible for Parliament to find ways to control and
influence matters that are dealt with by delegated legislation in its many variants.
83
One source of assistance may lie in alterations to the legislative process. Among
possible solutions to the problem may be:
·
a wider Standing Order regarding Omnibus Bills;
·
a main Committee type procedure similar to that employed in Australia.
84
The Legislation Advisory Committee only this week invited the Regulations
Review Select Committee to look more closely at the issue of the dividing line
between primary and delegated legislation.37 The Digest prepared by Ryan
Malone of the Victoria University of Wellington Centre for Public Law is an
excellent resource.38 It is a great starting point for getting some useful principles
backed by specific examples of what is appropriate for delegated legislation, and
what is not. The Centre for Public Law Project is jointly sponsored by the
Parliamentary Counsel Office and the Office of the Clerk and funding is
committed to continuing for three years.
85
It is essential to find and define a dividing line between primary and delegated
legislation, so that Government, the Parliament and, in particular, public servants
know where that line lies. The intellectual effort by such an inquiry ought not to
be underestimated.
37
Legislation Advisory Committee Briefing for the Regulations Review Select Committee
from the Legislation Advisory Committee (Wellington, March 2006).
38
Ryan Malone Regulations Review Committee Digest (New Zealand Centre for Public Law,
Wellington)
<http://www.law.vuw.ac.nz/vuw/fca/law/files/RRC_Printer_Friendly_Digest.pdf>
(last
accessed 30 March 2006).
26