Subordinate Legislation (Confirmation and Validation) Bill (No 3)

Hon KATE WILKINSON (Minister of Conservation) Link to this

Leader of the House: I move, That the Subordinate Legislation (Confirmation and Validation) Bill (No 3) be now read a first time. At the appropriate time I intend to move that the Subordinate Legislation (Confirmation and Validation) Bill (No 3) be referred to the Regulations Review Committee for consideration, that the committee report finally to the House on or before 12 September 2011, and that the committee have authority to meet at any time while the House is sitting except during oral questions, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).

This bill is required each year because it contains various orders and regulations that must be validated or confirmed by the Parliament. If the House chooses not to validate or confirm any items of delegated legislation, they will lapse. This is a small but important bill that traditionally receives the support of all members of the House on the basis that the orders and regulations tend to be routine and technical in character. This is certainly the case again this year. The bill validates or confirms orders and regulations under a range of legislation, including the Commodity Levies Act 1990, the Customs and Excise Act 1996, the Land Transport Act 1998, the New Zealand Superannuation and Retirement Income Act 2001 and the Social Security Act 1964, the Tariff Act 1988, the War Pensions Act 1954, and the Wine Act 2003. The bill will go to the Regulations Review Committee and, as it does each year, the committee will, I am sure, give the bill a careful and thorough examination on behalf of the House. I commend this bill to the House.

CHARLES CHAUVEL (Labour) Link to this

For people listening to the House on the radio, watching on television, watching on demand, or sitting in the gallery, the Subordinate Legislation (Confirmation and Validation) Bill (No 3) might seem to be a strange thing to appear on the Order Paper, and it might be worth saying a few words about it. The Minister said in her first reading speech that these annual subordinate legislation (confirmation and validation) bills tend to deal with matters that are uncontroversial. The Opposition is consulted about the bill in advance of its introduction to ensure that there are no matters of controversy. As the Minister pointed out, these bills exist because on occasion Parliament makes laws that allow delegated legislation that has a sunset clause to be made because the executive is conscious of the need to bring the subject matter of the order back to the House for consideration as to whether the powers taken under the principal legislation remain necessary for the administration of the particular regime that was set up by the relevant legislation.

Although it is true that this is a non-controversial bill, it is worth considering the sorts of matters that the legislation brings to the House. There is delegated legislation that prohibits trout from being imported into New Zealand. There is delegated legislation that prohibits the export of live cattle for slaughter. That is very topical, particularly in Australia at the moment, where there are huge concerns around the animal welfare issues that live exports to Indonesia, for example, are now causing. There is delegated legislation that allows for the automatic increase in tobacco excise; ditto alcohol excise. There are orders referred to in the bill that relate to the export of so-called dual use material, which is scientific material that could be used in the manufacture of weapons such as nuclear weapons.

Then, of course, there is a reference to the Tariff (New Zealand - Hong Kong, China Closer Economic Partnership Agreement) Amendment Order. There is very similar legislation in Australia that is also very topical at the moment. That is the same kind of treaty under which a tobacco company seeks to sue the Australian Government in an international legal forum to prevent it from proceeding with its proposal to plain package tobacco products on the domestic market in Australia. There are very, very similar provisions in the treaty between Australia and Hong Kong, as there are between New Zealand and Hong Kong. It is worth not minimising the issues that Subordinate Legislation (Confirmation and Validation) bills bring to the House.

I think it is worth, though, raising a question about whether this is a good way to legislate. Is it a good use of the scarce time that the House has to allow for up to a 2-hour debate on a matter such as this every year, when we all know that other urgent matters that could be dealt with are just languishing on the Order Paper? By my calculations, we have 17 more sitting days until we run into the 16 valedictory speeches, which have already been scheduled in this term of Parliament by the Business Committee. So I ask whether it a good idea, from the point of view of parliamentary procedure, to force on to the Order Paper every year this sort of bill for a debate of this nature. Could we do better?

The Minister made a kind reference to the Regulations Review Committee, which I have had the good fortune to chair in this term. She said she was sure that the committee would give the bill careful scrutiny, and we will do our best, but let me tell members a little bit about the scrutiny that we can, in practice, give this sort of measure—because we have done it twice already in this Parliament. We write to the relevant departments responsible for the administration of each measure in the validation legislation. We ask whether they still need these powers, and invariably they write back and say: “Yes, we do. We would like to keep them, thank you.” We acknowledge that and then report the bill back to the House. We say that the departments responsible for the legislation would like to keep the powers they already have and that it appears to us that that seems unobjectionable, and therefore we recommend to the House that the bill be passed. That is the level of scrutiny that we can effectively give to these sorts of measures, because the committee has no other way of knowing whether there is any ongoing utility for the powers.

We could, I suppose, in theory, apply to the Clerk for an independent adviser to go through each aspect of the legislation and come to an independent view as to whether these powers are still required, but we have never considered doing that. It seems to us that if we were to request that sort of resource, we would be better advised to reserve it for some issue where there was actually some controversy.

In reality, there is no systematic method of review available to the House, despite the form that these bills take, for measures contained in them. That is why I raise the question of whether there is a better way to do this sort of thing. Under the current Standing Orders, the only way that I can think of that there could be a systematic review of the ongoing need for delegated legislation, independent of the empowering legislation requiring that there be a sunset clause, or, on the making of the order or regulation, the imposition by the relevant Minister of a sunset clause, is if the Regulations Review Committee were to undertake an inquiry, as it did in the last Parliament, on the effect of spent legislation. That is certainly a course that is open to the committee, but it is not usually done. The question arises of whether there will be the time for that, given that an ongoing scrutiny job is required in respect of all existing new delegated legislation. Then there is the complaints jurisdiction, which the committee exercises under the Standing Orders when it receives a concern from a member of the public about the operation of an existing regulation.

Maybe it is time to look at what I understand is the practice in the Commonwealth Parliament in Australia, where all delegated legislation is now given a sunset date. My understanding is that the practice is that there should be regulations in force for 10 years, and then it is a matter for the responsible Minister or the department to have to come back and make the case for the carrying on in force of the delegated legislation, so that there is a justification advanced in every case for every regulation to continue in force. Maybe that is a good way to clean up the red books that sit outside in the lobbies, because they do tend to fill up, given our executive’s propensity, whoever is in power, to rely on the regulation-making power.

I made some similar points when Mr Foss made his maiden speech as a Minister on the dog control legislation, because that involved the invocation of what is known as the affirmative resolution procedure. That procedure is invoked not only with dog control legislation but with epidemic preparedness legislation. It was contemplated for the Canterbury earthquake orders, but that notion was dropped in favour of the ordinary scrutiny that the Regulations Review Committee can provide. I said on that occasion that maybe the idea of having to come to the House to get specific pieces of delegated legislation confirmed under that procedure was not a great use of the House’s time either, and that we had a perfectly good scrutiny committee that could perform this sort of scrutiny without using the time and resources of the House, and report as required. I would have to say that similar logic applies to these annual Subordinate Legislation (Confirmation and Validation) bills. They are not a good use of the House’s time and resource. We could be debating much more important substantive legislation, but because this is an annual requirement, we cannot do so. I do think that when we have legislation such as the Legislation Bill, which would reform some of these procedures, simply languishing on the Order Paper, it is timely to think about how we could do a better job here.

TIM MACINDOE (National—Hamilton West) Link to this

It is fairly rare for members of this House to have an opportunity to consider in close detail work similar in nature to that undertaken each week by the Regulations Review Committee, and I imagine that this debate may make our colleagues very glad of that fact. I doubt whether many New Zealanders will remain glued to their radios or TVs to hear the first reading of the Subordinate Legislation (Confirmation and Validation) Bill (No 3) through to its conclusion. My long-suffering and incredibly loyal mother may prove to be one exception to that statement, but even she, I imagine, will find herself switching channels back to Television One after the dinner adjournment, as her devotion to Coronation Street overcomes the questionable allure of this bill. But as the deputy chair of the Regulations Review Committee, I am pleased to have this opportunity to reinforce the comments of the Minister the Hon Kate Wilkinson and the Regulations Review Committee chair, Charles Chauvel, who have preceded me, and to say this is an important measure, and the consequences of not giving it due consideration and seeing it enacted could be far-reaching and damaging for several affected industries.

As the explanatory note states, “This Bill’s purpose is to prevent the lapse”—either through expiry or deemed revocation—“of certain subordinate legislation that, by virtue of the Acts under which it is made, lapses at a stated time unless earlier confirmed or validated by Act of Parliament.” It is for that reason that Parliament is required to consider and pass this bill each year. Traditionally, Subordinate Legislation (Confirmation and Validation) bills receive the support of all members of this House, as they are uncontroversial in nature. In fact, that comment is equally true of the workings of the Regulations Review Committee as a whole. That is one reason, by convention, that the committee is chaired by a non-Government member of the House, and I acknowledge the considered and constructive approach currently demonstrated in that position by Charles Chauvel. As a committee we work in a cooperative fashion and rarely divide along party lines, reflecting the fact that our function is the scrutiny of parliamentary process rather than the consideration of policy matters.

In this instance 13 orders and regulations listed in the bill need to be confirmed, or confirmed and validated, and they are made under seven different Acts. These provisions were outlined by the Hon Kate Wilkinson and Charles Chauvel, so I will not repeat them. Although this is a routine and technical measure, it is an important one to ensure that the subordinate orders and regulations do not lapse, which will be their fate if these items are not confirmed or validated, because each of the empowering Acts provides that the subordinate legislation will be deemed to be revoked on specified dates unless confirmed or validated by Act of Parliament before those specified dates—in other words, the sunset clauses referred to a moment ago by Mr Chauvel. I can sense the excitement building right around this Chamber, particularly from my colleague the member for Hamilton East, and indeed right around the country, and I therefore say “Let’s bring it on.” I have great pleasure in commending this measure to the House.

RAYMOND HUO (Labour) Link to this

I rise to take a call on the first reading of this routine and annual bill. Although it is a routine and annual bill, there are a couple of important issues in relation to the Subordinate Legislation (Confirmation and Validation) Bill (No 3), not only in its content but also in its process. As the purpose clause confirms, subordinate legislation has to be confirmed to avoid the effect of provisions lapsing, or deemed to be revoked after the elapse of a certain time, unless confirmed or validated by Act of Parliament.

In terms of process, we are dealing with a sunset provision. Most laws do not have sunset provisions, and therefore remain in force indefinitely. Some laws do, and they provide that a law shall cease to have effect after a specific date, unless further legislative action is taken to extend the law. A recent example in New Zealand is the Electoral (Integrity) Amendment Bill, which was passed in 1999 to discourage waka jumping in an MMP parliamentary system. That amendment expired, as scheduled, in 2005.

We have been assured that this is a relatively administrative and procedural bill, but it touches on many facets of our society. Matters to do with social security benefits, New Zealanders’ superannuation, war pensions, or commodity levies are matters of importance, and they are significant to the ongoing operation, regulation, and maintenance of those industries.

Having said that, I point out that one particular order that is validated and confirmed in this bill is worth mentioning. The War Pensions (Rates of Pensions, Lump Sum Payments, and Allowances) Order 2011, which came into force on 1 April 2011, amends the War Pensions Act 1954 to increase the maximum levels of pensions and allowances in accordance with the “all groups” Consumers Price Index and to implement the Government’s commitments—or so-called commitments, should I say—in relation to the levels of veterans pensions.

I reiterate what the Hon Rick Barker said in his press release in May: “the veteran community is still awaiting the Government’s long-overdue announcement on overhauling and updating the War Pensions Act 1954… [The] Law Commission reported to the government on 1 June 2010 making a number of recommendations to modernise the veterans support scheme legislation.” The commission outlined two principles, but I want to bring the attention of the House to the second, which is, as stated by Rick Barker, that “veterans who have suffered as a result of being put in harm’s way as part of their service deserve to be recompensed over and above the entitlements of ordinary citizens. No New Zealander would disagree with that. The commission also noted that some ACC entitlements were more generous than the War Pension entitlements meaning that some veterans were treated less generously than ordinary citizens,”. Again, I reiterate what Rick Barker said: “This is unacceptable, unfair and needs to be fixed fast.”

The contents of this bill deals with areas of lawmaking where Parliament has decided that it would not give the executive carte blanche in making regulations—for example, levies imposed on primary producers under the Commodities Levies Act 1990, the Wine Act 2003, and so on and so forth.

The bill also validates certain subordinate legislation. This is a chance for Parliament to examine the legislation for conflict with delegated legislation principles or any other defect in the regulations or in the making of them that could lead to the regulations being regarded as invalid, or to cure any such potential defect by validating provisions. The regulations and provisions—for example, the levies, and so on—that are contained in this legislation need to be renewed, and they need to be applied after consideration by this House. At each turn, it means that these provisions will get renewed scrutiny.

This is a strict contrast to another bill introduced to this House last week. Echoing the concerns expressed by my learned colleague Charles Chauvel a moment ago in this House, but from a different angle, I tell members that all the practices of the bill we are considering are better than those of the Regulatory Standards Bill, sponsored by ACT’s Rodney Hide. Mr Hide’s bill introduces some new ideas that are relevant to some aspects of this bill. Mr Hide’s bill would be applied to new laws, but after existing for 10 years the bill could apply to existing regulations as well. That could empower the courts to reinterpret provisions in other laws to make them consistent with the so-called principles prescribed in his bill, thus changing the original intention of Parliament when the law was enacted. That is unconstitutional, and would fail to meet the test of responsible regulatory management.

To a large extent, Mr Hide’s bill is redundant. Further, by requiring certification by Ministers and chief executives, Mr Hide’s bill would virtually change the role of Parliament and the courts, and would put chief executives in a position to politicise themselves. I am trying to say that we have well-established practice and a good regulatory management system to make sure that laws are enacted appropriately and, where necessary, that subordinate legislation—namely, regulations and orders—is confirmed and/or validated. This is what responsible regulatory management is all about.

David McGee, in his must-read book Parliamentary Practice in New Zealand, describes the need for such bills as being purely and simply about confirming regulations that might otherwise lapse. These lapsed regulations are commonly brought together in a single piece of legislation, and that touches on the very issue of the speed of lawmaking. David McGee has evidence of a dramatic reduction in the number of minutes allocated to passing each single page of legislation. He identified that a total of 12.3 minutes per page, in the 2002-05 Parliament, was the lowest amount of time recorded over the previous 50 years. This tells us about the quality of legislation, business efficacy, and what the legislators and Government can deliver.

I conclude my contribution by mentioning another piece of subordinate legislation that is validated and confirmed in this bill. The Social Security (Rates of Benefits and Allowances) Order 2011, which came into force on 1 April 2011, amongst other things increased most benefits, pensions, and allowances. I particularly note that under this National-ACT Government there are more people on the benefit: 17,521 more people were receiving a main benefit in June 2011 than in the same period last year, which is an increase of 5.6 percent; 5,409 more people were receiving an unemployment benefit in June 2011 than in June 2009, which is an increase of 10.6 percent; and unemployment benefit and student hardship numbers were up 234 percent in June 2011.

This Thursday Labour will announce its economic package, which will show that we have a vision, we have a plan, and we have very, very good alternative policies. When National was voted in, in November 2008, it had a huge mandate to do many things, including bold ones, which may not be popular at the moment but would have benefited New Zealand in the long run. It is a pity that opportunities have been wasted. Thank you.

METIRIA TUREI (Co-Leader—Green) Link to this

Tēnā koe, Mr Assistant Speaker Robertson. Tēnā koutou katoa. I will make a very short call on the Subordinate Legislation (Confirmation and Validation) Bill (No 3) on behalf of my colleague Kennedy Graham, and of course on behalf of the Green Party and its position on this legislation. The bill will provide legal force for subordinate legislation, regulations, and the like, and in some cases will confirm orders that are already in effect but that will otherwise lapse unless this legislation is passed. The subordinate legislation that is covered by this bill includes levies imposed on primary producers under the Commodity Levies Act, regulations made under the Customs and Excise Act and the Land Transport Act, and rates of benefits, pensions, and allowances under the New Zealand Superannuation and Retirement Income Act, the Social Security Act, and the War Pensions Act. The Tariff Act and the Tariff (New Zealand - Hong Kong, China Closer Economic Partnership Agreement) Amendment Act 2010 Commencement Order will be validated and confirmed by this legislation.

Quite rightly, these are mostly technical regulations, which could easily be supported to go to the Regulations Review Committee. When specific groups are affected by these changes, then no doubt they will submit, or have the opportunity to submit, on areas where they may have concern. The Green Party certainly supports raising benefit levels, which is being done in part under this legislation, I understand. Of course, benefits are not being raised by enough, and the poverty that beneficiaries still suffer from will continue under this legislation until there is a serious review of the poverty trap that the welfare system is at the moment.

We do not have any particular concern at this time about the customs and export provisions, but no doubt we will have a look at them when the bill is at the select committee. The land transport provisions deal with registration and the licensing of motor vehicles. Those provisions are quite complicated and technical provisions. It is difficult to tell at this early stage whether there are any specific issues with them. We assume that issues will be dealt with at the select committee if they do arise, and, again, those affected will have an opportunity to submit.

I say, however, on behalf of the Green Party, that we do not support the Hong Kong free-trade agreement, and we are opposed to the legislation in so far as it validates and confirms the amendment order for the New Zealand - Hong Kong, China Closer Economic Partnership Agreement. On that basis, because we are so opposed to it and have such strong views about the economic injury that these kinds of free-trade deals do to the New Zealand economy, and therefore to families and New Zealand business, the Green Party will not be supporting this bill at its first reading. We always consider that we have to weigh up very carefully whether we will support or oppose legislation like this, where there is a range of different things, some of which we may agree with or not have concerns about, and other parts that we may disagree with. On balance, the Green Party has decided that our opposition, and concern for the New Zealand economy, are reflected in our concern about the Hong Kong free-trade agreement. Therefore, we will not be supporting this bill. Thank you.

AARON GILMORE (National) Link to this

This is a wonderful opportunity to stand and talk to the Subordinate Legislation (Confirmation and Validation) Bill (No 3). It is not often that members of the Regulations Review Committee stand to speak, so it is an honour and a privilege to have this opportunity. I will start by talking about one particular thing. This bill does a really important thing: it outlaws the export of military products, and in particular components of nuclear or biological weapons, or of chemical weapons. I think every New Zealander probably thought that was already outlawed. This bill does a number of things and brings in a number of regulations, but it shocked me when I realised that those exports were not currently banned in New Zealand.

I look forward to being a member of the select committee as it looks at many of these things. The Customs Export Prohibition Order 2011 has some very interesting things that I think the committee will look into in serious depth, as it will look at the other issues in the bill around tobacco duties and the recent increase in those duties, which I think is a very important step forward for the health of New Zealanders up and down the country. I look forward to the great deputy chairperson to my left, Mr Tim Macindoe from Hamilton West, admirably chairing the committee when and if required. Thank you.

Dr RAJEN PRASAD (Labour) Link to this

Namaste. This debate on the Subordinate Legislation (Confirmation and Validation) Bill (No 3) is the first time that I have participated in a debate of this nature. Of course, when I was a highly sought-after speaker on this bill and had to go into a ballot to make sure that I was the third speaker, I knew that this would be serious stuff, whereupon I thought it was really important that I understood what subordinate legislation is all about and the process by which it comes into the House. Of course, this completes my learning. I have also had the privilege of being a substitute member on the Regulations Review Committee.

The Regulations Review Committee is one of those committees that, if one is a substitute member on it for the first time, one goes to assuming one will make a contribution, but in the knowledge that there is absolutely no space at all to make any kind of contribution. There is an amount of paper that one has to read, which I bet most members of the committee do not read, about all the regulations before they are passed. But at least the members have the guarantee that there is legal counsel who has read everything, and who comes to the committee to offer proper advice. Of course, under the chairmanship of Mr Charles Chauvel and the deputy chairmanship of my good friend Tim Macindoe, I am sure it all goes very well. I was very keen to try to understand the procedure by which those Acts that have time-limited provisions have to be brought back to the House, for it to validate those provisions, change them, or confirm them. Of course, now I know that this is the procedure whereby it happens.

I was interested in the specific regulations that are being confirmed in the bill. It is a tremendous learning experience that there are these provisions. People who are watching the debate today on television will be very, very interested to know about the specific provisions in the bill, and that the bill will go to the Regulations Review Committee. I did not know that there is a levy on all chicken eggs produced in New Zealand for sale. Had I known that—

SANDRA GOUDIE (National—Coromandel) Link to this

I am delighted to be able to take a call on the Subordinate Legislation (Confirmation and Validation) Bill (No 3). This is a bill that traditionally has the support of all members of the House. There is no need to expand on it at any great length. It will be going to the Regulations Review Committee for that additional oversight. I commend the bill to the House.

CAROL BEAUMONT (Labour) Link to this

It is my pleasure to follow the interesting contribution made earlier by my colleague Dr Rajen Prasad on the Subordinate Legislation (Confirmation and Validation) Bill (No 3). I also intend to look a bit more deeply into the bill than, perhaps, some of the other contributors have done so far. As has probably been mentioned, the purpose of this bill is “to prevent the lapse (expiry or deemed revocation) of certain subordinate legislation that, by virtue of the Acts under which it is made, lapses at a stated time unless earlier confirmed or validated by Act of Parliament.” This is the first time I have been able to speak on a Subordinate Legislation (Confirmation and Validation) bill, although I understand that this is at least an annual process in Parliament, and I thought I would find out a little bit more about the process. But first I say up front that Labour is supporting this bill to select committee, the Regulations Review Committee, which I am interested in finding out more about, because I think that scrutiny of regulation and delegated subordinated legislation is really important. From the little I know—and I am trying to learn more—this is a very important feature of trying to ensure the integrity of this Parliament and the transparency of our legislation.

Anyway, I decided I would try to look a little bit more, and I went to that source of a great deal of useful information, McGee, to find out what it stated about this sort of thing, because I thought I would like to know. McGee states: “Each year legislation is introduced to confirm regulations that would otherwise lapse.” It further states: “regulations made under different Acts will be confirmed in a single piece of legislation, often called”—as, indeed, this one is—“the Subordinate Legislation (Confirmation and Validation) Bill,”. Basically what McGee states is that “Confirmation is the House’s opportunity to consider the policy which lies behind the regulations to be confirmed. It is not an exercise confined to examining regulations for conflict with delegated legislation principles.”

Interestingly enough, McGee states that there is “no presumption that a confirmation bill will be referred to the Regulations Review Committee”, although certainly in this case we are referring it to the Regulations Review Committee. It continues: “A confirmation bill dealing with regulations solely relating to producer boards, for example, would be likely to be referred to the Primary Production Committee, where the committee could hear evidence from growers opposed to the policy underlying the regulation—”. However, it also states that a confirmation bill dealing with a miscellaneous range of regulations on a number of subjects is likely to go to the Regulations Review Committee, and in fact that is happening here, because in this bill a range of regulations are being looked at.

The regulations are governed by a number of different Acts, including the Commodity Levies Act 1990, the Customs and Excise Act 1996, the Land Transport Act 1998, the New Zealand Superannuation and Retirement Income Act 2001, the Social Security Act 1964, the Tariff Act 1988, the War Pensions Act 1954, and the Wine Act 2003. I see the point that McGee is making here: there is no commonality amongst all of those Acts. The regulations mentioned in this bill cover a wide range of issues, from commodity levies, through excise, a range of things on motor vehicle registration, social security rates and benefits, the New Zealand - Hong Kong, China Closer Economic Partnership Agreement, and the (Wine (Grape Wine) Levy Order 2010. That is quite a range of things, which would not go together in any of the subject select committees, so off goes this bill to the Regulations Review Committee, which I am sure will have a very interesting time looking at the various provisions in here.

I shall follow on from Dr Prasad in looking at some of the different provisions. I too was interested in the Commodity Levies (Eggs) Order 2010 provisions. This is a levy payable, as my colleague said, to the Egg Producers Federation of New Zealand, and it was expressed to expire 6 months after it came into force. This provision really is to see whether that will continue, and likewise the Commodity Levies (Tamarillos) Order 2010. The levy in that case goes to the New Zealand Tamarillo Growers Association, and—

Hon MAURICE WILLIAMSON (Minister for Building and Construction) Link to this

of the House: I move, That the Regulations Review Committeeconsider the Subordinate Legislation (Confirmation and Validation) Bill (No 3) , that the committee report finally to the House on or before 12 September 2011, and that the committee have authority to meet at any time while the House is sitting (except during oral questions), during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).