THE OTAGO DAILY TIMES FRIDAY, November 8, 1940. LEGISLATION BY DECREE

Otago Daily Times, Issue 24450, 8 November 1940, Page 6

THE OTAGO DAILY TIMES FRIDAY, November 8, 1940. LEGISLATION BY DECREE

For their protest against the increasingly frequent practice of legislation by Qrder-in-Council, the Associated Chambers of Commerce have ancient and excellent precedents. The origin of this method of enjoining the people to some observance or enforcement can be traced to the earliest . days of parliamentary government, as enabling the king to issue commands which, in the words of Dr Edward Jenks, were "of a different character from the voluntary customs of the people." In this wise William the Conqueror issued his curfew ordinance. But Parliament was not a quarter century old before, so early as 1322, the first protest was solemnly recorded against the extension of the kingly prerogative to his Government, which issued ordinances having the effect of laws without submitting them to parliamentary approval. Yet the practice continued. It was, and still is, a convenient method of law-making when Parliament is not sitting, and of dealing with matters, of legislative detail. Further, it is quick, and haste is often required. As we know in New Zealand there is nothing to prevent Parliament, if it can be persuaded so to do, from passing a Bill through all its stages in a few hours, if it is of an urgent nature. Yet when the usefulness, even the occasional necessity, of the system of legislation by Order-in-Council is acknowledged, it is very desirable to recognise "the limits which tradition requires should be placed on this form of enactment. In the seventeenth century : Sir Edward Coke, the great ' parliamentary lawyer, defined these limits. While the King may, by his proclamations or Orders, enjoin his subjects to existing laws, and to this end make regulations applying existing laws, yet, Coke held, he cannot in that way change any part of the " common law" or create any new offences, without the authority of Parliament. This rule, observes Jenks, is still generally observed. Jenks was writing, obviously, without knowledge of the use which the present Government in New Zealand has made of its opportunity to legislate by Order and regulation. Laws having, all the validity—except, perhaps, the constitutional validity—of Statute are being imposed by Order and regulation almost daily. The figure of 286 regulations last year, and more in the current year, which was mentioned by a speaker at the Associated Chambers' conference provides an indication of the extent to which this easy method of law-making is being used—or abused. Combined with the practice of passing important legislation without affording the public sufficient opportunity to study it—another trend that was the subject of comment at the conference—this method of legislation is imposing upon the community- a multiplicity of laws the origin—and often the effect —of which makes them little different from the dicta-torial-form of decree. Emergencies must occur frequently in wartime, and the Government in office must have authority to deal with them expeditiously. There is no reason, however, and no excuse, for perverting the legitimate and recognised place of the Order-in-Council, as established by democratic precedent, into a means of imposing laws which are without the sanction of the people's sovereign will, as represented by Parliament. A check upon governmental exuberance in legislation by decree could, as the conference suggests, be easily enforced by the provision that all enactments automatically lapse unless they are confirmed within a specified time by both Houses of Parliament.