11 Dec 2018

Keeping it supreme: signing off on subordinate legislation

From The House, 6:55 pm on 11 December 2018

If you visit Parliament in Wellington you will notice it is built on a hill.

It's the hill that entrepreneurial emigre bounder, and founder of Pākehā Wellington, Henry Gibbon Wakefield, reserved for his own 'town acre'. It must have been a lovely spot, with a bucolic view down to the beach (which was closer then), and north to the extensive vegetable gardens at Pipitea Pā.

The Wakefield house, as far as I can tell, was where the Beehive sits now, at the southern end of the rise, above the Waipiro Stream that once meandered down what is now Bowen street.

'Parliament Buildings' by Sean Chen

'Parliament Buildings' by Sean Chen Photo: Parliamentary Service

The Beehive is not at the top of the hill though.

Both literally and figuratively the Beehive sits below Parliament House. Taller yes, but not superior.

The Beehive is the seat of Government in New Zealand. It is where the cabinet meets, where senior ministers have their offices and where Governors General come to sign on the dotted line. It represents the Executive.

But for all that Government sounds very impressive it is not superior to the Parliament that meets in the squat grey Edwardian neoclassical pile just uphill from the Beehive.

Everything that the Government wants or does has to be approved by Parliament. All the spending, all the laws. Even the regulations.

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Photo: VNP / Daniela Maoate-Cox

Approving this last one - regulations - is particularly important. In some countries when the Executive (Government) can't get the Legislature (Parliament) to agree to something they simply sidestep them by making a regulation or a decree instead with almost the same force.

In New Zealand these regulations are called subsidiary legislation. That's laws that are enabled to come into existence by other laws. Because many laws allow ministers (or their representatives) to make and adjust rules as they go; it's a useful way of making sure that a whole new law isn't required to keep adjusting to changing circumstances. 

But these regulations are not self-sufficient and wither and die unless they are approved by Parliament.

Chris Hipkins, is Leader of the House, the minister responsible for shepherding the executive's legislative agenda through Parliament. And in our weekly catch of what is in store for the week he outlined the purpose of a bill coming before the House called the Subordinate Legislation Confirmation Bill (No 2).

Chris Hipkins 9 august 2018

Leader of the House, Chris Hipkins in the House. Photo: VNP / Phil Smith

The reason the Bill exists is because regulations are time limited, and need a power-up.

"They run out," Chris Hipkins says. "So every year there is a subordinate legislation bill that confirms the rules that have been made by the Government under delegated legislation."

But before Parliament signs off on their continued existence they are examined by one of Parliament's lesser known select committees - The Regulations Review Committee, currently chaired by a senior opposition figure - National Party MP and Shadow Leader of the House, Gerry Brownlee. 

National MP Gerry Brownlee chairing the Regulations Review Select Committee

National MP Gerry Brownlee chairing the Regulations Review Select Committee. On this occasion overseeing an appeal against the interpretation of regulations surrounding benefit entitlements. Photo: VNP / Phil Smith

"The regulations review committee checks all of those. And there is the potential for them to be disallowed if the committee so chooses," says Chris Hipkins. "It is a safeguard to ensure the Executive don't abuse their delegated responsibilities under law."

"We've got a lot of safeguards in our system to stop the executive saying, 'okay, well if the Parliament won't do this, we'll just do it by regulation'. There's all sorts of ways to stop that. And the Parliament still ultimately retains the supreme right to determine the law of the land."