Henry VIII Down Under

There are limits to what courts can do to thwart legislative enactments of Henry VIII clauses, which grant powers to the executive to modify legislation. Typically, Henry VIII clauses are included in legislation for limited periods of time, to facilitate the implementation of the statutory provisions.

Much of what governs modern life is not produced by legislators in the form of laws, but by the executive branch in the form of regulations, statutory instruments (and much more besides). Some oversight is exercised by the legislative branch, but the deluge of delegated legislation is such as to overwhelm the parliamentary committees responsible for monitoring it. Henry VIII clauses are especially problematic, because they can be used by the executive to defeat the intention of the legislature. Their purposes may be innocuous, but their use might not always be.

It is interesting, then, to see that New Zealand's Regulation Review Committee recently bared its teeth in recommending that Parliament disallow the Road User Charges (Transitional Matters) Regulations, 2012.

The Committee recalled its general remit to draw attention to unusual uses of delegated powers and matters more appropriate to legislative enactment. In this context, it took into account the purpose of the Henry VIII clause:

In considering this ground, it is important to bear in mind that the power delegated by section 90 is a power to make regulations for transitional purposes. Regulations made under section 90 may prescribe “transitional and savings provisions” concerning the commencement of the Act; may provide that specified provisions of the Act do not apply “during a specified transitional period”; and may provide for any other matters necessary for facilitating “an orderly transition” from the provisions of the 1977 Act to those of the 2012 Act. (my emphasis)

The Committee took issue with three aspects of the Regulations, which, in its view, should have been implemented by amending the primary legislation, the Road User Charges Act, 2012.

First, the Regulations sought to expand the definition of the term "exempt vehicle". In the Committee's view, this effected a reversal of policy requiring an amendment to the legislation.

Second, the Regulations amended the definition of the term "permit". Here, the ministry claimed that the original legislation contained an error. In the Committee's view, the use of the Regulations for this purpose was again a reversal of policy which was properly a matter for Parliament.

Third, the Regulations extended the period for commencement of certain provisions contained in the primary legislation. In the Committee's view, this would "subvert" the commencement date intended by Parliament and was thus inappropriate.

H/T Freezing Kiwi. And look out for the next edition of the Regulations Review Committee Digest.