A View of the Legal Debate
6 Policy Quarterly Number 2, 33, 2010
4 Pages Posted: 28 Nov 2012 Last revised: 23 Feb 2015
Date Written: May 1, 2010
The proposed Regulatory Responsibility Bill amounts to a substantive constitutional change shifting power away from the executive branch of government towards the courts. It is a serious diminution in the range of ministerial responsibility, the prime instrument of accountability in our democratic framework.
The Bill’s justiciable character opens a new dimension of court cases not hitherto contemplated in New Zealand. Courts and judges have handled the provisions of the New Zealand Bill of Rights Act very well. Both criminal lawyers and judges are familiar with matters such as search and seizure, arrest, legal advice, detention and police powers. In contrast, neither judges nor the legal profession are proficient in policy analysis of the type that leads to regulatory legislative proposals. The Bill brings the courts into areas of law making not within their province and for which they lack institutional competence. It amounts to a very significant transfer of power and will redefine the relationship between the three branches of government.
History illustrates that the New Zealand Parliament is unwilling or unprepared to deal to the executive in the form of disallowing statutory regulations despite legislation intended to serve as a heavy check on executive power. Without the House of Representatives being prepared to exercise control over regulations in any meaningful way, it seems unlikely that ex ante legislative controls will rectify the situation.
Keywords: Regulatory Review Bill, constitutional law, regulations, executive power, ministerial responsibility
JEL Classification: K19, K39
Suggested Citation: Suggested Citation