Chapter 12: Non-Compliance With Notification and Consultation Procedures: SO 327(2)(h)

I Introduction

Regulations can have a significant impact on the rights and liberties of individuals and organisations. Notification procedures allow those that may be affected by proposed regulations to be made aware of their existence. Consultation requirements are designed to give individuals and organisations the opportunity to offer their opinions on proposed regulations, and for those opinions to be considered by the body responsible for making the regulations. Consultation can also allow any problems or issues to be dealt with prior to the regulations coming into force.

For these reasons, a statute may specify that certain notification or consultation procedures must be undertaken as part of the regulation making process. Two issues may arise when the Committee considers Standing Order 327(2)(h); namely, what notification or consultation requirements did the empowering statute contain, and were those requirements met? Each issue will be examined separately.

II When Consultation is Required

An Act may contain an express requirement to follow certain notification or consultation procedures. The duty to consult may be framed in several ways. Consultation may be required with specified individuals or groups. Alternatively, the individual or body exercising the power may be given a discretion to consult with ‘appropriate persons’ or ‘those that may be affected by the regulations’. An Act may simply provide that ‘consultation must take place’, while others will set out in some detail the various steps that must be undertaken before a regulation can be made. Section 5 of the Marine Reserves Act 1971 provides an example of the latter. It sets out extensive notification and consultation requirements before an Order in Council can be made declaring an area to be a marine reserve. These include:

• the notification of an application for an Order in Council to be published in various newspapers;
• a requirement to notify adjacent property owners, local bodies, and harbour boards, the Secretary for Transport and the Ministry of Agriculture and Fisheries;
• the preparation of a plan available for inspection free of charge;
• a requirement that the applicant answer any objections to the plan; and
• a duty on the Minister of Conservation to consider all submissions and objections and to uphold an objection if he or she finds that declaring an area to be a marine reserve would have an undue impact on such matters as commercial fishing interests and the recreational use of the area.

Having established what the consultation requirements in the empowering Act are, the Committee will examine whether they have been complied with. In this case, the Committee found that all obligations as outlined above had in fact been fully discharged.³¹⁶ The complainant had argued that the Department of Conservation, as the applicant, had failed to undertake sufficient non-statutory consultation with local interests. Whilst the Committee did express concern as to the level of general consultation, it did not find this standing order to have been breached. This was because the Department was only required to undertake the formal procedures set out in section 5 of the Act.

An issue that has arisen is whether there can be an implicit requirement to undertake consultation notwithstanding that there is no express requirement to do so. The Committee has adopted different approaches.³¹⁷ On the one hand, the Committee has indicated consultation is required even when there is no express requirement to consult. The Whitebait Fishing (West Coast) Regulations 1994 changed the length and timing of the West Coast whitebaiting season. Part IIIA of the Act required extensive consultation procedures to be undertaken prior to the making of regulations. However, the regulations in question were made pursuant to a separate part of the Act that contained no such consultation requirements. This was despite the whitebaiting season being a matter that could have been dealt with under Part IIIA. The issue then became whether the consultation requirements in Part IIIA of the Act should have been adhered to when making the regulations notwithstanding that they were made pursuant to a different part of the Act. The Committee stated that this was ultimately a matter for a court to decide. Interestingly, however, it did make the following statement:³¹⁸

The Committee’s observation was based, in part, on the unique statutory framework in which these particular regulations were made. The Committee found that Parliament would have intended there to be consistency between the extensive consultation procedures set out in Part IIIA and the making of regulations under different parts of the Act that affect matters also dealt with under Part IIIA.

On the other hand, in its more recent interim report on a complaint relating to an increased marine safety levy imposed under section 191 of the Marine Transport Act 1994,³¹⁹ the Committee was not prepared to find an implicit consultation requirement in relation to the levying power. The Committee nonetheless expressed reservations about the consultation process actually undertaken by Maritime New Zealand. Its concerns included that the consultation was run over the Christmas period, that the consultation period was only extended for those who asked to meet Maritime New Zealand or for those who asked for an extension, and that Maritime New Zealand had advised that the increase would be phased in when in fact the initial increase was 96 percent of the total increase. Further, the Committee recommended that the Marine Transport Act be amended to provide for a statutory consultation process in relation to the levying power. The government response accepted this recommendation, and indicated that an amendment inserting a statutory consultation process would be included in the Maritime Transport Amendment Bill.³²⁰

III What Constitutes Consultation

The Committee has previously adopted the common law definition of consultation established in the High Court decision of Air New Zealand Limited v Wellington International Airport Ltd.³²¹ The Committee has summarised the relevant considerations to be as follows:

• The essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice.
• The effort made by those consulting should be genuine, not a formality; it should be a reality, not a charade.
• Sufficient time should be allowed to enable the tendering of helpful advice and for that advice to be considered. The time need not be ample, but must be at least enough to enable the relevant purpose to be fulfilled.
• It is implicit that the party consulted will be (or will be made) adequately informed to enable it to make an intelligent and useful response. The party obliged to consult, while quite entitled to have a working plan in mind, should listen, keep an open mind, and be willing to change and if necessary start the decision-making process afresh.
• The parties may have quite different expectations about the extent of consultation.

Initially, whether a body convened for the purpose of consultation has been properly convened can be a basis for invalidating a regulation. This issue arose in the Committee’s report Investigation into the Canterbury Earthquake District Plan Order 2014. Section 72 of the Christchurch Earthquake Recovery Act required the Review Panel, who advised the Minister, to be composed of four members including at least one member with appropriate legal qualifications. The legal member of the Panel recused themselves for consideration of the 2014 Order, raising the question of whether quorum had been met. Some members felt that given the silence of the Act on the specific issue there was no requirement for each piece of advice to be given by all members of the Panel. Other members felt that the member’s recusal meant that for the duration of that recusal that the Panel had not been convened in accordance with s 72. This meant the Order was invalid. The Committee could not agree in this case whether the regulation in question was invalid, but the need to comply with such procedures is clear.

The reports of the Committee indicate some perennial problems regarding the conduct of consultations. The most common of these is consultation taking place within too short a time frame. If the time allocated for interested persons to consider and respond to the proposed regulations is too short, the entire consultation process may be of limited value. Sufficient time must be given to allow respondents to give proper consideration to the issues. It must also be sufficient to encourage the party administering the regulations to engage in a proper reflection of any advice or objections that have been made. Exactly what this time frame should be will vary in each case. In one instance only nine working days were allowed for organisations to consult on draft regulations and prepare submissions.³²² The Committee agreed that this did not allow sufficient time for all the relevant organisations to canvass opinion and provide effective analysis and feedback. In another instance, just five working days were allowed for submissions on proposed regulations.³²³ In these instances the Committee concluded that what occurred was a process of notification rather than consultation.³²⁴

The effectiveness of consultation may also be impeded by the quality of information provided. The Committee has stated that a party under a duty to consult must provide a reasonable amount of information, as those consulted must know what is proposed before they can be expected to give their views.³²⁵ The Committee has further stated that what constitutes ‘reasonable information’ in a particular case will be whatever is sufficient to enable the consulted party to tender its views.³²⁶ In this instance, the Ministry of Agriculture and Fisheries released a public discussion document that formed the basis of its consultation process. However, the document failed to make clear the exact nature of the obligations being imposed under the regulations. It also found that the Ministry had failed to address concerns that had been raised by several industry groups. The Committee concluded that the Ministry had failed to provide sufficient information to provide an effective consultation process.

Similar issues arose in the Committee’s investigation into the Whitebait Fishing (West Coast) Regulations 1994.³²⁷ As noted above, the regulations altered the start/finish date of the whitebait season, and in so doing reduced the length of the season. The Committee made a finding that the public discussion document released by the Department of Conservation did not make it clear that a change to the length of the season was a possibility. As a result, members of the public making submissions did not address this issue. The Committee held that when it subsequently became clear to the Department that the length of the season would be changed, the Department had a responsibility to notify all those who had made submissions that a change was being mooted and to invite comment on the matter. This was because “as a general principle there is a requirement that a decision-maker who creates an expectation in people by his or her actions or words must treat people fairly”.³²⁸

One part of the requirement to provide sufficient information is the requirement to provide information on specific proposals. In its examination of three notices issued under the Plumbers, Gasfitters and Drainlayers Act 2006, the Committee took the view that consultation on an options paper did not satisfy a requirement that the Board consult “about its proposal for the contents of the notice.”³²⁹ It suggested that, while an options paper might be good first step in a consultation process, the Board “was required to consult again about its specific recommendations for training requirements as a condition on licensing before going to the minister with them.”³³⁰

The effectiveness of the consultation may also be affected by the particular focus of the consultative process. For example, in its report on the Complaint Regarding Notice of Scopes of Practice and Related Qualifications Prescribed by the Nursing Council of New Zealand, the Committee took the view that the topic or focus of the consultation affected its meaningfulness.³³¹ The complainants were concerned about a change of the title of second- level nurses from “enrolled nurse” to “nurse assistant”, but the consultation restricted the topic of consultation to the titles of “nurse assistant” and “registered nurse assistant”. The Committee took the view the consultation would have been more meaningful had it also consulted on the title of “enrolled nurse”. Despite this concern, the Committee found that the Standing Order ground had not been made out as the notice and consultation prescribed by the Health Practitioners Competence Assurance Act 2003 had been complied with.

The issue of predetermination has arisen on several occasions. If the outcome of consultation is predetermined, then the consultation process may indeed become a ‘charade’. In the Committee’s investigation into the Biosecurity (Rabbit Calicivirus) Regulations 1997, possible evidence of predetermination came from a Cabinet Legislation Committee paper.³³² Prior to the closing date for submission on draft regulations, the paper detailed a proposal to introduce a bill into Parliament that would have had the effect of validating the proposed regulations. In response, the Committee stated that “it was clear to us that not only were the regulations going to be promulgated, but were going to be subsequently validated”. The Committee’s finding of predetermination was a major factor in its decision that the consultation process had been inadequate.

In the Committee’s investigation into the Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992, the complainants alleged that the Accident Compensation Corporation had made no attempt to respond to any of the issues they had raised.³³³ It was further argued that the short time frame in which the consultation took place, together with the speed with which the regulations were promulgated, showed that the Corporation had demonstrated no real commitment to resolving the issues that had arisen from the draft regulations. In effect, the complainants argued that the result of the consultation was predetermined. Consistent with this argument, the Committee made a finding that the Corporation had undertaken a process of notification rather than consultation, and that this was largely due to the short timeframe under which consultation took place.

Finally, consultation with certain groups may be required as a result of the provisions of the empowering Act. For instance, section 4 of the Conservation Act 1987 requires the Department of Conservation to administer the Act so as to give effect to the principles of the Treaty of Waitangi. This may require extra consultation with Maori in order to give effect to those principles. The extent of this consultation will vary depending on the circumstances. The issue was addressed in the Committee’s investigation into the Whitebait Fishing (West Coast) Regulations 1994, and the conclusion reached that more could have been done by the Department of Conservation to inform local Maori of the proposed regulations.³³⁴

316 Regulations Review Committee “Complaint of Mrs Mary Bowers regarding the Marine Reserve (Whanganui (Cathedral Cove)) Order 1992” [1993] AJHR I16J.

317 Regulations Review Committee “Complaint Relating to the Whitebait Fishing (West Coast) Regulations 1994” [1994] AJHR I16A.

318 Regulations Review Committee “Complaint Relating to the Whitebait Fishing (West Coast) Regulations 1994” [1994] AJHR I16A at 13.

319 Regulations Review Committee “Interim Report on the Complaint Regarding SR 2008/319 Marine Safety Charges Amendment Regulations 2008”, above n 253.

320 “Government Response to Interim Report of the Regulations Review Committee: Complaint Regarding SR 2008/319 Marine Safety Charges Amendment Regulations 2008”, above n 255. The government’s progress in executing the Committee’s recommendations is set out in Regulations Review Committee “Complaint Regarding SR 2008/319 Marine Safety Charges Amendment Regulations 2008”, above n 255.

321 Air New Zealand Ltd v Wellington Airport Ltd HC Wellington, CP 403/91, 6 January 1992. See also Regulations Review Committee “Complaints Relating to the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation) Regulations 1992”, above n 287, at 12; Regulations Review Committee “Investigation into the Biosecurity (Rabbit Calicivirus) Regulations 1997”, above n 188, at 13; and Regulations Review Committee “Complaints Regarding Three Notices Issued by the Plumbers, Gasfitters and Drainlayers Board on March 2010 and the Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010” (15 February 2011) at 15.

322 Regulations Review Committee “Complaints Relating to the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation) Regulations 1992”, above n 287.

323 Regulations Review Committee “Investigation into the Biosecurity (Rabbit Calicivirus) Regulations 1997”, above n 188.

324 Regulations Review Committee “Complaint Relating to the Whitebait Fishing (West Coast) Regulations 1994”, above n 317. Other reports in which the timeframe for consultation was an issue include Regulations Review Committee “Complaint Relating to the Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992” [1994] AJHR I16B and Regulations Review Committee “Investigation into the Land Transport (Driver Licensing and Driver Testing Fees) Regulations 1999 and the Land Transport (Driver Licensing) Rule 1999” [1999] ADJHR I16T.

325 Regulations Review Committee “Investigation into the Biosecurity (Ruminant Protein) Regulations 1999”, above n 208, at 21.

326 Regulations Review Committee “Investigation into the Biosecurity (Ruminant Protein) Regulations 1999”, above n 208 at 21.

327 Regulations Review Committee “Complaint Relating to the Whitebait Fishing (West Coast) Regulations 1994”, above n 317. See also Regulations Review Committee “Investigation into the Land Transport (Driver Licensing and Driver Testing Fees) Regulations 1999 and the Land Transport (Driver Licensing) Rule 1999”, above n 324.

328 Regulations Review Committee “Complaint Relating to the Whitebait Fishing (West Coast) Regulations 1994”, above n 317, at 10.

329 Regulations Review Committee “Complaints Regarding Three Notices Issued by the Plumbers, Gasfitters and Drainlayers Board on March 2010 and the Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010” (15 February 2011).

330 Regulations Review Committee “Complaints Regarding Three Notices Issued by the Plumbers, Gasfitters and Drainlayers Board on March 2010 and the Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010” (15 February 2011) at 15.

331 Regulations Review Committee “Complaint Regarding Notice of Scopes of Practice and Related Qualifications Prescribed by the Nursing Council of New Zealand”, above n 302.

332 Regulations Review Committee “Investigation into the Biosecurity (Rabbit Calicivirus) Regulations 1997”, above n 188.

333 Regulations Review Committee “Complaint Relating to the Accident Rehabilitation and Compensation Insurance (Counselling Costs) Regulations 1992”, above n 324.

334 Regulations Review Committee “Complaint Relating to the Whitebait Fishing (West Coast) Regulations 1994”, above n 317, at 19.