STATUTE AND REGULATION

Te Awamutu Courier, Volume 53, Issue 3792, 7 August 1936, Page 3

STATUTE AND REGULATION

Arising out of the judgment of the Full Court/ in the appeal of O. F. Nelson against the sentence of eight months imprisonment and ten years’ exile imposed upon him. by the High Court of Western Samoa is the oftdiscussed question of the scope and authority of regulations made by a subordinate body under powers conferred by a statute. This aspect of administrative practice was criticised with special emphasis by Mr Justice Blair in reference to the Nelson case, and is especially important when considering the possibilities inherent in empowering legislation passed without due thought as to its implications. “ It has been said more than once,” said Mr Justice Blair, “ that there is a tendency in modem legislation to leave a great deal to be provided by regulation, but I have yet to see any statute wherein the Legislature was content to confer on a subordinate body untrammelled authority to frame laws touching such sacred subjects as life and liberty.” It is a fact, nevertheless, that bureaucratic authority, professing to act in terms conferred by empowering legislation, has not infrequently overstepped the mark, and, when challenged, been overruled in a court of law. Such incidents have evoked sharp criticism of what has been described as “ government by order-in-council.” The Lord Chief Justice of England, Lord Hewart, has condemned this system as an invasion of the authority of the courts, the accredited interpreters of the law. Parliament admittedly has the right to delegate its powers. If this right were not conceded the work, of the Legislature would be enormously increased, adding thereby to the dangers inherent in hasty and slipshod legislation to which young democracies especially are prone. But this concession is subject to the condition that regulations made under empowering legislation must not be in conflict with, or exceed, the authority contemplated in the statute, or its spirit and intention. Yet there have been instances in departmental regulations implementing an Act of Parliament of the use of the phrase “ notwithstanding anything to the contrary in the Act,” an obvious contradiction of the limits of bureaucratic authority as defined by Parliament, the supreme authority.

The moral of this is that Parliament, when delegating its authority, should be careful to see that its intentions are clearly stated, and the limits of the authority so delegated are expressly defined. Unless this principle of action is strictly observed there is always a danger of injustice being done to individuals through an excess of authority on the part of officials empowered to draft regulations which in operation have, theoretically at least, the full force of the law.