Law misuse alleged

Press, Volume CXVI, Issue 34048, 12 January 1976, Page 7

Law misuse alleged

Press Association) AUCKLAND, i A group of Auckland lawyers has accused governments of abusing and misusing legislative: machinery in a way which might undermine Parliament, and ultimately the rule of the law. They accuse governments. of passing legislation which! is nothing more than window-! dressing, either unenforce-, able, or superfluous, and! which casts an excessively | wide net. leaving too much; discretion for enforcement to I w-him. wisdom or the lack of ft.

The charges have been made by the Auckland District Law Society public issues committee, which does not necessarily represent the views of other members of the society. The committee was formed to encourage its members to consider and comment on

, public issues, particularly i those with a legal element. ! It says in a paper that it sees as desirable the fact that I enforcement authorities have discretion not to proceed I with prosecutions when cirI cumstances warrant. • However, the committee Isays. unless discretionary ! powers are exercised accord- ! ing to generally recognised orinciples, there can be, all .too easily, arbitrariness, vicI timisation. or preferential i treatment. With the tendency of governments to “draft the legis.lative net more widely than ; necessary” to cover unforeseen contingencies, “the discretion required will be correspondingly greater.” “This increases both the appearance and the fact of i arbitrariness,” says the com--1 mittee. ; “It might well be asked why the citizen’s security against prosecution should be dependent on the wisdom or policy or whim of those charged with the administration of the legislation.” That such arbitrary deci-

sions are taken in a nonlegal context has serious implications for the rule of law, it adds.

The committee says there have been recent instances where legislation has been enacted to give the appearance that positive action was being taken, when adequate legal powers already existed. It gives as examples the enactment of the Harbour Pilotage Emergency Act, 1974 during an industrial dispute involving harbour pilots, and the Marine and Power Engineers’ Institute Industrial Disputes Act. “The danger is that the legislative process will be used as a means of avoiding difficult enforcement decisions. Procrastination can result, and ultimately, disrespect for legislation which is seen to be unenforceable.”

The passing of the Hospitals Amendment Act, 1975, to prevent abortions which were already illegal under existing law “is in the committee’s view a misuse of the legislative function,” says the committee.