Sunday, December 19, 2004

Regulations vs Orders In Council

MusiCal defends Orders In Council by pointing out that they are used for passing statutory regulations or subordinate legislation, which comprise a large body of New Zealand law. For example, the Civil Union Act 2004 allows the Governor-General, by Order In Council, to enact regulations for the following purposes:

(aa) prescribing types of overseas relationships that are recognised in New Zealand as civil unions

(a) prescribing fees [...]

(b) prescribing forms to be used for the purposes of this Act

(c) prescribing the matters that must be included in forms (other than prescribed forms) used in connection with civil unions

(d) providing for any other matter contemplated by this Act, necessary for its administration, or necessary for giving it full effect

Without this power all of these details would have to be present in the Act itself, and any changes would require new legislation to be passed - a process Cal calls

unnecessary, unwieldy and time-consuming. Our current government departments and parliament could not operate without regulations made by Order in Council.

But it's not this sort of Order In Council I object to. As Cal points out, these are explicitly authorised by Parliament and subject to oversight through the Regulations Review Committee. While not as open as formal legislation, they are subject to democratic oversight. Instead, it's the ability to pass an Order In Council without specific Parliamentary permission I object to. This power is a remanant of legislation by royal proclaimation, and has not yet been revoked. And it is a total blank cheque for the executive. Such power is simply incompatible with the idea of a democratic state in which all executive actions must ultimately be authorised by the legislature and subject to democratic oversight.

Update: The Holden Republic responds to Cal here.