‘Govt by regulation’ worries former judge

Press, 12 July 1979, Page 10

‘Govt by regulation’ worries former judge

PA Wellington A growing tendency towards government by regulation should be deplored and resisted, according to a former president of the Court of Appeal. Sir Alexander Turner, in a lecture at Hamilton, said there were some fields in which there were signs that Parliament, in exercising its legislative powers, was becoming less concerned than it used to be with the pres'ervation of the people’s liberties. “Parliament has a duty to distinguish matters of detail from matters of principle or policy, and should be zealous in matters of this kind to retain its control,” said Sir Alexander.

He criticised a Budget announcement that legislation was intended authorising the regulation of rates of income tax by Order-in-Council. “True, it is intended that only regulation downwards should be so authorised, but will not this be the foot in the door?” Sir Alexander said. "There is always some good excuse for any inroad on the people's liberties — expense, efficiency, promptitude, or even the personal convenience of members of Parliament, and the inconvenience of calling them together if out of session,” he said.

“But the question must always be asked: Are such reasons really sufficient?

“The price of liberty is eternal vigilance.” Sir Alexander said he hoped there would be members on both sides of the House who would have the courage to resist the proposal, “and to insist, as Hampden insisted to Charles I, that taxation was not a matter for executive decree but one for the people’s representatives to decide.”

“This innovation carries many signs of danger,” he said. He also criticised "blanket” regulations which did not specify the kind of topics the regulations might cover. He cited section 11 of the Economic Stabilisation Act, 1948, which was still in force and frequently: used. Sir Alexander said that by this section the Gover-nor-General was empowered to make such regulations as appeared to him to be necessary or expedient for the general purposes of the act and for the due of the act.

“The general purposes of the act are defined, in the act, as being ‘to promote the economic stability of New Zealand.’ It may occur to you that there is virtually no limit to what the Governor-Gen-eral might prescribe as the law to be observed by you and me, under the powers given to him by this section,” said Sir Alexander.

Such a type of legislative authority should be firmly resisted by any Parliament professing democratic principles, he said. It was essential that members of Parliament declare at least the general limits within which regulations should be made.

But history Showed that a government impatient of democratic processes might be inclined to favour incorporation in statututes of a blanket authority authorising the Governor-General or a Minister to make regulations of almost any kind. This would remove from public debate legislative provisions whose debate might embarrass members. Sir Alexander said earlier that a parliament was

perfectly free to pass a law making an act a crime but it could not be enforced if a "substantial majority” did not believe it should be a crime. When Parliament was asked to legislate on a matter on which the public was still divided it was not enough to leave it to a conscience vote by members of Parliament. Juries would usually include persons who felt the law was unfair, unjust, or unrealistic and who would refuse to give a verdict of guilty. The difficulties created when Parliament passed the recent abortion law amendments would clearly be seen when the Government found itself compelled by a section of the public to prosecute for breaches of the law. “It will just prove impossible to get convictions,” said Sir Alexander. “How many juries do you think will in practice turn out to be without persons of strong views one way or the other on this question?” It was impossible to legislate effectively so as to increase the severty of the criminal law unless

with the support of a big majority of the people, he said. This was an example of a real limit to parliamentary power. Retrospective legislations also came under criticism from Sir Alexander. It seemed to be acquiring a dangerous degree of respectability, he said. “Members should think, pei. ..p.s more carefully, and perhaps more independently and courageously, than they have in some recent sessions seemed, to do; and governments should more carefully weigh the wisdom of threatening subsequent retrospective laws, when by calling Parliament together the same result could be reached without the constitutional objection to which retrospective legislation exposes them.” Sir Alexander’s lecture on the limits of Parliament’s power to legislate was the first in a series of five to be given by five speakers during the next two months. The lecture series, titled “Steering a ship of State — direction and control in government,” is sponsored by the University Centre for Continuing Education.