ORDERS-IN-COUNCIL

Nelson Evening Mail, Volume LXVI, 10 March 1933, Page 6

ORDERS-IN-COUNCIL

MISUSE OF SYSTEM ADDRESS BY PROFESSOR MOMW FLAGRANT EXAMPLES Tiie ease against the abuse of government bv Order-in-Council was ably presented by Professor R. M. Algie,- professor of law at Auckland University College, in an address to tlio Auckland Rotary Club (reports the “Herald”). “Let us hope that Air Forbes's words were only utterances in debate and in no sense expressions of intention,” said Pro--1 lessor Algie, in referring to the Prime Minister's recent statement in the House of Representatives that if subjected to continued "stonewall” tactics the Government might have to legislate more in future by means of Orders-in-Council. “It was satisfactory to see that the press in every part of the country at once called Air Forbes's remarks in question and pointed out their implications.” If the practice of legislating by Order-in-Council were carried further, continued the speaker, there could be only one result: legislative power would be transferred from Parliament, its rightful possessor, to Government departments. Such a change could not be universally a good one. INCREASED USE OF SYSTEAI It must be acknowledged that Orders-in-Council were necessary and that Parliament could not get on without them. In a single year in Britain, 2473 had been issued ana the annual total seldom fell below 1900. It was obvious that no Parliament could consider tiie j mass of detail which such numbers represented; there must be some delegation of authority. There was danger, however, from the abuse of the system, and Professor AJgie believed that a time had come when an independent observer would say without hesitation that it was being abused. In New Zealand in 1901 the number of Acts passed was 72, and in one-fifth of them there was provision for the making of regulations by Order-in-Counci!. In 1916 the proportion had risen to nearly one-third, and in 1931 every second new statute contained the provision. Sonic statutes were mere skeletons, containing little more than authority for the making of regulations. Of these the Immigration Act was a good example. Tiie chief objections to the current practice were three. In the first place, the power to delegate authority was used unnecessarily. In the second, it was used in order to enable imperfect schemes, faultily prepared and ill-digest-ed, to pass Parliament. In the third, many Orders-in-Council were so framed that they could not be challenged in the law courts.

EXPEDIENTS TO RETAIN POWER-

In Britain and New Zealand, indeed throughout the British Empire, every possible expedient had been used to oust the jurisdiction of the courts to peruse Orders-in-Council. When a statute authorised the making of regulations dealing with certain specified matters only, any regulation which went outside the order of reference could he upset by the courts. However, it was more usual to authorise the making of “regulations for the due administration of this Act.” These could not be impugned so long as they kept within the main purpose of the statute. In New Zealand various Government departments had gone even further in extravagant mal-use of the powep to legislate by Order-in-Council. An Education Amendment Act of 1915 contained the following provision; “The Governor-in-Council may make such regulations as he thinks necessary or expedient for avoiding any doubt or difficulty which may appear to him to arise in the administration of the principal Act. by reason of any omission or inconsistency therein, and all such regulations shall have the force of law, anything in the principal Act notwithstanding.”

NO COMPLETE REMEDY “Four years later, in a further amendment, the same department perpetrated another horror,” remarked Professor Algie. “It was in these terms: ‘No regulation under this section shall be invalid because it deals with any matter contained in the principal Act or is contrary to the provisions of that Act. This seems to me the transcendental limit to which the power of making regulations by Order-in-Council can be carried.” There appeared to be no complete remedy for such a state of affairs, although he knew of 18 that had been propounded. The only proposal that seemed likely to be at all effective was that there should be a standing committee of both Houses of Parliament, sitting permanently, with power to veto or rotor back to Parliament any regulations which it considered transcendental, no new regulations to be valid without the committee’s approval. “Democracy is not just liberty; it is responsibility,” said Professor Algie, in conclusion. “It will remain with us just so long as we have the genius to see that it does remain. If we do not mind the transfer of power from our hands to others, we have no right to blame ourselves for the consequences that inevitably must follow.”