“PRIVATE RIGHTS IN JEOPARDY”

Press, Volume CII, Issue 30312, 12 December 1963, Page 20

“PRIVATE RIGHTS IN JEOPARDY”

Judge Sees Dangers In Cabinet’s Powers (New Zealand Press Association) WELLINGTON, December 11. The concentration of executive power in the Cabinet was inherently dangerous, the Chie/ Justice (Sir Harold Barrowclough) told the New Zealand section of the International Commission of Jurists tonight. With the passing of the years and the gradual development of the British system of government, he said, the control of the legislative function of government, as well as of the executive function, had, in very large measure, passed to the Cabinet. As the legislative power was unrestricted in New Zealand, the Cabinet could, and did, bring about alterations to the law by acts of Parliament “pretty well just as it pleases,” he said.

“I make no undue complaint of the Cabinets wide powers in that respect,” said Sir Harold Bairrowclough. “They have arisen as a result of the necessity for the Legislature and the executive to act in harmony in the interest of efficiency, and, of course, those powers are not completely absolute for the Cabinet may lose the support of the House at any time. “But I do draw attention to the dangers—l think I might call them the inherent dangers—attendant upon the concentration of so much of the executive power in the Cabinet unless there are adequate and effective checks and safeguards.” Sir Harold Barrowclough said it must be accepted in a modern welfare state that Government intervention in so many new activities would bring about a state of affairs in which Government interests would conflict with private interests. This could come about through the exercise of legislative powers delegated to the Executive—by the making of regulations, or as the result of the decisions and acts of Ministers of the Crown, heads of Government departments and others in the Government service. These decisions and acts had to be made daily in the ordinary course of business, and many of them must necessarily be detrimental to some private individuals. Conflict Regulations frequently restricted the independence of action by private persons. There were innumerable

ways in which governmental acts and decisions must conflict with private interests. “Must it be accepted that private rights shall always yield to public interests merely because the latter are public?” Sir Harold Barrowclough asked. “The answer to that is obviously an emphatic ‘no.’ There are some human rights and interests which are inalienable and which can never yield to so-called public interest. “There are some which have always had to yieldon the principle that mankind should strive for the greatest good for the greatest number. “The moral soundness of

that philosophy may be open to question, and in any event it does not necessarily follow that what a Government department does is either good for or in the real interest of the greatest number.” No Judicial Review In view of the control which as exercised over the Legislature by the Cabinet and by the Executive, it might not be difficult for the sponsors of a regulation to have it removed altogether from judicial review. It might not be possible in the absence of a written constitution to deprive the Legislature of its right to declare that certain regulations should not be subject to judical review. But it was possible to be alert and to see that no bill containing words authorising the Governor-General-in-council to make regulations which were not reviewable should ever be presented to Parliament without a strong protest from bodies such as the New Zealand section of the International Commission of Jurists. “In my submissions, regulations, like by-laws, should always depend on their fairness and reasonableness or their validity, and I would not limit the meaning of either word in any unnecessary way,” he said. “I cannot conceive that that proposition can be seriously challenged. Deciding Authority “What Government department would not claim that regulations drafted and sponsored by it were always fair and reasonable? I think it would be conceded that, by and large, regulations are intended to be fair and reasonable. There might be some controversy, however, as to who should decide whether they really are. Should it be Parliament, or should it be the Judiciary? “Parliament, of course, has control of all regulations. It can legislatively declare that they shall be deemed to be valid or deemed to be invalid, but that does not necessarily mean that the courts should not have a power of review. “Parliament is concerned with a multitude of matters and it is not designed and organised, as are the ordinary courts of law, for deciding such a question. “It is in the regular courts of justice that we have the best tribunal for deciding what is fair and reasonable. That is their daily task and they are assisted in it by a trained and experienced corps of advocates. “The methods and procedures of the courts are the result of centuries of experience and, most important of all, their decisions are subject to appeal, often to two successive appeals.”