Chapter 7: Unusual or Unexpected Use of the Powers: SO 327(2)(c)

I Introduction

This Standing Order ground is intended to cover those regulations which, although authorised by a regulation-making power, do not represent a proper use of that power. In reality, this ground is very similar to Standing Order 327(2)(a). Central to both grounds is the policy or intention behind the empowering Act. Under Standing Order 327(2)(a), the issue is whether the regulation is broadly consistent with the objects and intentions of the empowering Act. Under Standing Order 327(2)(c), the issue is whether there has been an unusual or unexpected use of a regulation-making power given the intentions of the empowering Act. The Committee has also stressed that Standing Order 327(2)(c) does not give it a broad power to declare a use of a regulation making power ultra vires the empowering legislation.²²⁶ Both Standing Orders, however, effectively require the Committee to undertake the same inquiry, namely, does the regulation in question sit comfortably with the policy behind the principal legislation? If a regulation appears to make an unusual or unexpected use of a regulation-making power, it follows that the regulation is unlikely to be in line with the objects and intentions of the empowering Act. For this reason, when the Committee considers that a regulation breaches Standing Order 327(2)(a), it will often find that it also breaches Standing Order 327(2)(c).

II Purpose of the Act

Central to this ground is Parliament’s intentions as they relate to the empowering Act. When addressing this ground, the Committee will determine whether the regulation-making power has been used in a manner that can be considered unusual or unexpected in light of the policy or intention behind the Act. For example, under the Biosecurity (Ruminant Protein) Regulations 1999 all “operators” were subjected to the duties and obligations set out in the regulations. The Committee was of the view that the definition of operator was too broad, and that it captured more people than was necessary to achieve the purposes of the regulations. It concluded that it was unusual and unexpected for the regulations to define operator in such broad terms because Parliament never intended the regulation-making power to be applied in such a vague manner.

As is the case with Standing Order 327(2)(a), deciphering the intention of an Act may require a broad appreciation of its different goals. The Committee’s investigation into the Legal Services Board (Civil and Criminal Legal Aid Remuneration) Instructions 1998 raised this issue.²²⁷ Under the Legal Services Act 1991, the Board was responsible for setting guideline fees for remuneration of civil and criminal legal aid lawyers. Section 97(2) imposed a duty on the Board to assess “the amount that would constitute appropriate reimbursement by way of fees”. The complainants were concerned that in calculating the guideline fees, the Board had allocated insufficient time for certain types of proceedings. Given the Board’s duty under section 97(2), the complainants argued that it was an unusual and unexpected use of the Act to set fees that were realistic for some types of proceedings but not for others. The Committee responded by stating that the Board was required to balance different responsibilities under the Act. Section 95(1)(c) of the Act required the Board to ensure that the legal aid scheme was “as inexpensive, expeditious, and efficient as is consistent with the spirit of the Act”. Given these competing objectives within the Act, the Committee felt that there was nothing unusual or unexpected about the guideline fees as set down in the Instructions.

Provisions in regulations that contradict or undermine the provisions and intentions of their empowering Act may amount to an unusual or unexpected use of a regulation-making power. A straightforward example of this is the Committee’s report on the New Zealand Teachers’ Council (Conduct) Rules 2004.²²⁸ While the Education Act gives the Teachers’ Council a relatively “broad and unrestricted” power to set up a Disciplinary Tribunal, the Council’s imposition of rules providing that, unless the Tribunal ordered otherwise, the Tribunal’s hearings be held in private and information about the hearings not be published, would be inconsistent with offence provisions set out in the Education Act. This was because the offence provisions provide that, among other things, it is an offence not to comply with an order of the Tribunal providing for a hearing to be in private or imposing restrictions on publication. As the Committee noted, those offence provisions suggest that “Parliament intended that the Disciplinary Tribunal’s proceedings would be open, and information relating to the proceedings be generally publicly available. If Parliament had intended that proceedings should generally be closed, there would be no need for it to create an offence of breaching the [relevant] orders.”²²⁹ Even though the Council had a broad power to set rules, the Committee stated that it could not set rules which expressly contradicted Parliament’s intent in enacting the empowering Act. Furthermore, because the rules undermined the intentions of the empowering Act, they constituted an unusual or unexpected use of a regulation-making power. In its response to this investigation, the government noted its intention to amend the Education Act to act on the Committee’s recommendations.²³⁰

An analysis of the empowering Act may reveal that Parliament did not intend for a Board or authority to act in the manner that it did. For instance, under the Survey (Departmental Fees and Charges) Regulations 1998, Land Information New Zealand introduced a new fee system for the examination of building plans.²³¹ Plans attracted either a standard examination fee or a limited examination fee, depending on the work required. The Department administered the system based on an accreditation system. Plans submitted by accredited surveyors would attract only the limited fee, while non-accredited surveyors would be required to pay for the standard fee. The system was designed to reflect the reduced need to scrutinise the work of accredited surveyors. However, the Committee was concerned that the system of accreditation did not appear to be authorised by the regulation-making power or any other provision of the Survey Act 1986. The Committee concluded that the regime constituted an unusual and unexpected use of the power to set fees that was in no way envisaged by Parliament.

A similar example arose in the Committee’s examination of three notices issued by the Plumbers, Gasfitters and Drainlayers Board.²³² The notices prescribed new training requirements that would be a condition of plumbers, gasfitters and drainlayers obtaining an annual practising licence. The notices were made under a power allowing the Board to prescribe minimum competency standards, as long as they are necessary to achieve certain matters (such as public health and safety, and competence of plumbers, gasfitters, and drainlayers), and do not unnecessarily restrict licensing or impose undue costs. The complainants alleged that the notices were an unusual or unexpected use of a regulation- making power because, among other things, a number of the prescribed courses did not relate solely to the core or technical skills needed for plumbing, gasfitting, or drainlaying (for instance, courses on consumer law, and on leadership) and the estimated annual cost of the training was between $4000 and $5000 per person. The Committee agreed that the notices represented an unusual or unexpected use of the regulation-making power. While it did not accept that prescribed training courses must relate solely to core or technical skills, it took the view that they “would need to have a reasonably strong link to core skills”. Further, while the Board was entitled to offer practitioners other courses which would be useful to them, “such courses cannot be included in a system that is compulsory as a condition on licensing.” The Committee also took the view that the Board had not given due consideration to the requirements that training not unnecessarily restrict licensing or impose undue costs on practitioners or the public. The Committee recommended that the House disallow the notices and that the government ask the Board to urgently review the training requirements in light of the Committee’s findings. The government response indicated that it had required the Board to move up in priority a planned review of the training requirements, and instructed Ministry officials to work with the Board to ensure, among other things, compliance with section 32 of the Act.²³³

A further case of interest was Committee’s examination of the Student Allowances Amendment Regulations (No 2) 2004.²³⁴ The regulations modified several aspects of the student allowances scheme, which provides financial assistance for tertiary students. The first change was an increase in the threshold and abatement rates, which the complainant (the New Zealand University Students Association) was in favour of. However it opposed two other changes. First, the regulations removed the existing entitlement of previously married students and students in paid employment for 96 weeks to an independent circumstances grant. Secondly, the regulations required married students under 25 years of age and without dependants to be parentally income tested for the purposes of an allowance. Previously they had been exempt from parental income testing. Amongst several other grounds, the complainant argued that the regulations constituted an unusual or unexpected use of the Education Act 1989. This was because, contrary to the Ministry of Education’s expectations, the number of allowance applicants had actually decreased following the new regulations, as had the number of allowance recipients. The Committee found that while this may have been a surprising outcome, it was not necessarily due to the effect of the new regulations. Furthermore, the Act clearly envisaged that student allowances would not be universally provided and that they would be targeted using criteria such as parental income. Accordingly the Committee found no breach of Standing Order ground 327(2)(c).

It may be that the exercise of a regulation-making power is so inappropriate or flawed that it represents an unusual or unexpected use of a regulation-making power. The New Zealand Food Standard, Amendment No 11, was one such example.²³⁵ Under the Food Act 1981, the Minister of Health had authority to issue food standards that set out food safety and labelling requirements. The food standard in question required products containing royal jelly, bee pollen, or propolis to carry strict warnings advising consumers that these substances could cause severe allergic reactions. The Committee objected to the standard on a number of grounds. These included a finding that mandatory labelling could not be justified in light of the available evidence. This was especially so given that up to 95% of the industry voluntarily used some form of cautionary labelling. The Committee was also of the opinion that the bee product industry had been unfairly singled out for regulatory control, as well as expressing concern that the standard appeared to have been issued partly due to a desire to conform with the equivalent Australian standard. For these reasons, the Committee found that the food standard could not be justified and, therefore, represented an unusual and unexpected use of the regulation-making power. At times, the purpose of the regulation- making power in legislation may be sufficiently broad that relatively extreme regulations may still not make an unusual or unexpected use of that power. For example, the Committee was satisfied that the power given to Canterbury area councils to issue “red cards” under the Canterbury Earthquake (Building Act) Order 2011, barring people from their own homes, was not an unusual or unexpected use of regulation-making power.²³⁶ Section 71 of the Canterbury Earthquake Recovery Act 2011 allowed regulations made under that Act to grant exemptions from, modify or extend any provisions of any Act, including the Building Act 2004, provided those regulations were “reasonably necessary or expedient” to fulfil the purposes of the 2011 Act. The Committee considered that the Order was within the scope of the regulations Parliament would have considered in enacting section 71, even though it allowed “significant” modifications to the Building Act 2004.²³⁷ The Committee noted, however, that should the Order no longer be in the interests of the community’s recovery from the earthquakes at a point in the future, the continuing existence of the Order could well breach this Standing Order ground.²³⁸

III Wording

Where a regulation is deemed to be in breach of this Standing Order ground, it may be that fault lies not with the substance of the regulation, but with the way in which it is worded. For example, the Accident Rehabilitation and Compensation Insurance (Earner Premiums) Regulations 1992 prescribed rates of premiums for income earners.²³⁹ Regulation 3 stated that: “The rate of earner premium for the purposes of the Act shall be 62.22 cents per $100.00 or part thereof of earnings paid on or after the 1st day of April 1992”. On 1 April 1992, the complainants were paid wages and salaries for the previous two-week period. They noted that earner premiums had been deducted from their income despite the regulations not having effect at the time the income was earned. The complainants argued that the premium should only have been deducted from income earned on or after 1 April 1992 and not from income earned prior to this date. The Committee agreed and found the regulation made an unusual and unexpected use of the regulation-making power in the empowering Act. The Committee stated that it should have been made clear in the regulation that income earned prior to this date was not liable to the earner premium.

Wording was also an issue with the Civil Aviation Regulations 1953, Amendment No 31.²⁴⁰ The regulations had the effect of placing certain restrictions on civil aviation pilots and flight crew when no such restrictions were intended. The regulations prohibited any person from using a meteorological report or forecast in the planning, conduct, or control of a flight, unless the report or forecast had been supplied by an approved person. The complainants argued that the regulation unjustifiably denied the widespread aviation practice of relying on informal sources of weather information, for example, weather reports from other pilots. The Ministry of Transport stated that the regulation was never intended to curtail this practice. It acknowledged, however, that this was its effect. To this end, the Committee found that even though the regulation had been authorised by the regulation-making power, that power had been used in an unusual and unexpected way because of the absolute prohibition it imposed.

IV Fees

The Committee has reviewed fee-setting regulations under this Standing Order ground, and on several occasions it has found that the regulations constituted an unusual or unexpected use of the regulation-making power.

Firstly, the statutory authority to charge a fee should be clearly expressed. When investigating the Plumbers, Gasfitters, and Drainlayers (Fees and Disciplinary Levy) Amendment Notice 2015, the Committee expressed a dissatisfaction with the Boards’ legal justifications for charging registered professionals a fee to supervise unregistered persons.²⁴¹ It was necessary to do so to recover the costs of ensuring that proper supervision of unregistered persons by the professionals occurred. The legal authority for doing so was based on a fee-setting provision to charge fees for the licensing of professionals and correcting the professional register, which was where the supervised persons were being recorded. In other words, the recording of unsupervised persons was treated as an administrative function of the Board relating to the licensing and registration of professionals, for which the Board had a regulatory power to make fees. The Committee said found this justification to be generally unsatisfactory, saying “It should not be such a laborious or complex process for one to ascertain the authority to charge a fee, through extensive explanation of logic.”²⁴² As such, ascertaining regulatory authority to set fees from the surrounding context will be insufficient.

Secondly, if a user of a service is required to pay a fee then, as a general rule, the user must receive the benefit of that service.²⁴³ If the user is paying for something which he or she does not receive, then the regulation setting the fee may have constituted an unusual or unexpected use of the relevant power of promulgation. Two reports of the Committee illustrate the point. First, the Civil Aviation Regulations 1953, Amendment No 30, increased licence fees payable by flight crews and aircraft maintenance engineers.²⁴⁴ Part of that fee was to offset the cost of research into training methods for pilots. The Committee found that existing pilots would receive no benefit from the research being undertaken and, therefore, requiring them to contribute to this research represented an unusual and unexpected use of the regulation-making power. Secondly, the Land Transfer Amendment Regulations 1998 increased fees for its services.²⁴⁵ These increases were to cover the cost of a new automated land information system. Again, the problem was that current users were paying for something they may not receive any benefit from. Thus, people buying a property were required to pay for a system they might never use. Consequently the regulations were deemed to be in breach of this ground. The Committee recommended that the regulations be reviewed to ensure that the costs of the system be passed on to those who would actually benefit from it.

Further, without express parliamentary authorisation, regulations setting fees above the level necessary to cover costs will be an unusual or unexpected use of regulation-making power. The Committee has stated that public bodies authorised to set fees must ensure that those fees simply cover the costs of the goods or services provided to individuals.²⁴⁶ Fees that do not just cover costs, such as those that impose costs on a wider group in order for a public body to carry out a specific function, are not strictly fees but levies. In the Committee’s view, imposing a levy using a fee-setting power is implicitly an unusual or unexpected use of that power.

In addition, the Committee has held that regulations that set fees must strictly follow the scheme of the empowering Act. In its report on the Marine and Coastal Area (Takutai Moana) Reclamation Fees Regulations 2012, the Committee rejected LINZ’s argument that forcing applicants to pay a fee they had not previously been subject to fell within “method[s] by which [fees were] to be assessed.”²⁴⁷ LINZ were unable to point to examples of other regulations being interpreted in the way they argued. The Committee ruled that the regulations, which could set the ‘methods or rates’ for setting fees, could only extend to setting the monetary amount payable via formulae or ratios rather than changing the class of persons subject to fees. Any deviance from a strict interpretation of the fee-setting powers in the empowering Act will result in the regulations concerned constituting an unusual or unexpected use of that power.

The Committee has applied this reasoning even when the fee-setting power in the empowering Act includes a “catch-all” power to set fees for “any purpose”, stating that such powers are strictly constrained by the purposes of the Act as well as the other specified functions for which fees may be set.²⁴⁸ However, the government has not always agreed with this position. In its response to the Committee’s report on the Marine and Coastal Area (Takutai Moana) Reclamation Fees Regulations 2012, the government stated that although the point noted in the above paragraph relating to ‘methods or rates’ was valid, widening the class of persons subject to fees was within the ambit of the “catch-all” power to make regulations “for any other matters contemplated by this Act or necessary for giving it full effect.”²⁴⁹ This reasoning has the effect of allowing a general regulation-making power to supercede a specific fee-setting power, which is not in accordance with either the Committee’s approach to this Standing Order ground discussed above or the general approach to the use of omnibus powers. It remains to be seen whether the Committee will comment on this approach.

The Committee has also prevented a body from setting fees that constituted an unusual or unexpected use of a regulation-making power, even where that body needed to set such a fee to continue carrying out its statutory functions. In its report regarding the Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010, the Committee prevented the Board from setting a particular fee, ruling that the “fee” concerned was in substance a levy rather than a fee. This was despite the fact that the levy concerned was necessary to enable the Board to continue carrying out one of its statutory functions. The Committee concluded that the Board could not rely on its statutory purposes to legitimise an improper use of a delegated fee-setting power.²⁵⁰

V Levies

The imposition of a levy not in accordance with a levy-making power may represent an unusual or unexpected use of a regulation making power.²⁵¹ For example, section 143(1) of the Plumbers, Gasfitters and Drainlayers Act 2006 allows the Plumbers, Gasfitters and Drainlayers Board to impose a disciplinary levy to fund costs arising out of investigations relating to registered persons and disciplinary proceedings under Part 3 of the Act relating to registered persons. The Board had been using a disciplinary levy imposed under section 143(1) to fund enforcement action against non-registered persons and to fund certain other costs no relating to investigations, or disciplinary proceedings, relating to registered persons. The Committee took the view that that was an unusual or unexpected use of the levy-making power. It noted that “the power to levy is a power to tax a specified group, and must be exercised strictly in terms of its statutory authority.” The Committee recommended that the House disallow the levy and ask the Board to review and reset the disciplinary levy taking into account the Committee’s recommendations. The government response indicated that the government had required the Board to conduct a full fees review (including of the disciplinary levy) and that it had directed Ministry officials to work with the Board to ensure that the levy reflected the Committee’s views.²⁵²

Further, the failure to follow a sufficiently fair and robust process in setting a levy may constitute an unusual or unexpected use of a regulation-making power. In its consideration of the Marine Safety Charges Amendment Regulations 2008, the Committee took the view that Maritime New Zealand had failed to “follow a fair, reasonable, robust, and coherent process” in setting a new marine safety levy for specified passenger ships under section 191 of the Marine Transport Act 1994.²⁵³ Maritime New Zealand had set the levy on the basis of risk, assessed by reference to a ship’s passenger capacity and, among other things, ship operators’ ability to pay. The effect of the Regulations was that the levy payable by two large ferry operators increased by over three-fold, while small ferry operators were not required to pay the levy. The Committee accepted that Maritime New Zealand had been entitled to apportion cost on the basis of risk and ability to pay. However, it was not satisfied that, in imposing the levy, Maritime New Zealand had undertaken a sufficiently robust and coherent risk analysis, or followed a sufficiently transparent and robust information gathering process concerning, for instance, various parties’ ability to pay. On that basis, the levy represented an unusual or unexpected use of a regulation-making power. It recommended that when imposing the levy in the future, Maritime New Zealand follow a consistent, analytical, robust process, and maintain good records of its application, so as to bring the exercise of that power within the contemplation of Parliament’s original delegation.²⁵⁴ The government response accepted this recommendation.²⁵⁵

As mentioned above, when a body uses a fee-setting power to impose a levy, this will implicitly constitute a breach of this Standing Order ground.

VI Inappropriate Extension of Statutory Criteria by Regulation

The use of a regulation-making power to allow application of one statutory provision where it is more appropriate to apply another statutory provision may be an unusual or unexpected use of a regulation-making power. For example, the Overseas Investment Act 2005 imposed certain criteria on overseas persons wanting to own or control sensitive New Zealand assets. The Act distinguished between two types of sensitive assets: sensitive land and significant business assets. A provision dealing with sensitive land prescribed certain criteria for considering whether the investment would or was likely to benefit New Zealand, which could be added to through a regulation-making power. However, a provision prescribing the criteria in relation to overseas investment in significant business assets did not allow the addition of criteria through regulation. In 2008 the Canadian Pension Plan Investment Board proposed to purchase a 40 percent shareholding in Auckland International Airport Limited. In response, the Overseas Investment Amendment Regulations 2008, made under the regulation-making power relating to sensitive land, added the additional criterion of “whether the overseas investment will, or is likely to assist, New Zealand to maintain New Zealand control of strategically important infrastructure.”²⁵⁶ The Committee concluded that this was both an unusual and unexpected use of the regulation-making power.²⁵⁷ It took the view that the Airport was more properly regarded as a significant asset and it was merely fortuitous that it happened to be on sensitive land. Therefore, using a regulation-making power relating to sensitive land to regulate something more properly regarded as a sensitive business asset was an unusual use of the regulation making power.

VII Transitional Matters

The Committee has indicated that use of transitional regulation-making powers for any purpose other than facilitating the transition between old and new legislative regimes (for example, overriding or suspending primary legislation) will implicitly breach this Standing Order as an unusual or unexpected use of the power.²⁵⁸ Regulations concerning transitional matters may seek to implement a policy change, or conversely, effect a ‘holding pattern’, deferring a policy change contained in legislation from being carried out. As detailed below, both of these actions are implicitly a breach of this Standing Order ground. Further, the Committee has indicated that the use of transitional powers to delay an Act’s coming into force is antithetical to the purpose of transitional powers, which exist to facilitate the coming into force of Acts, and is in itself an unusual or unexpected use of regulation-making powers.²⁵⁹ The Committee has taken the view that, save in “exceptional cases”, regulations concerning transitional matters that go beyond mere facilitation will breach this Standing Order ground.

VIII  Addition or Reversal of a Matter of Substantive Policy

The addition of a significant new policy factor to a piece of legislation or the reversal of a matter of substantive policy in an Act via regulation may amount to an unusual or unexpected use of a regulation-making power.

A Addition of New Policy Factors

In its consideration of the complaint regarding the Overseas Investment Amendment Regulations 2008, the Committee took the view that the concept of “strategically important infrastructure” represented a significant new policy factor.²⁶⁰ It concluded that this was an unusual and unexpected use of a regulation-making power because the concept belonged to “such a broad and significant class of assets [that] it deserved a statutory class of its own.”²⁶¹ In other words, the regulations introduced a third type of property, that of strategically important infrastructure, where the Act had previously only recognised two types, sensitive land and significant business assets.

The Committee made three recommendations relevant to its findings under this Standing Order ground, and Standing Order 327(2)(f). First, that the Overseas Investment Act 2005 be amended to include strategically important infrastructure as a class of sensitive asset of its own. Secondly, the Act be amended either to omit section 17(g), or to add to section 17(2)(g), a requirement to consult with relevant parties. Finally, it made the more general recommendation that primary legislation not allow regulations to be made adding factors or criteria listed in primary legislation, where such factors or criteria are to be taken into account in ministerial decision-making. The government response to this report stated that the first two specific recommendations about the Overseas Investment Act would be considered a part of a general review of the overseas investment screening regime to take place in 2009.²⁶² The final, more general, recommendation is to be addressed in the context of the government’s regulatory reform programme.

If a regulation-making power is used on the advice of an expert panel, the Committee will be careful not to substitute its opinion for that of the panel. While reviewing a complaint about the Animal Welfare (Layer Hens) Code of Welfare 2012, the Committee considered whether drawing a distinction between behaviours essential to animal welfare and behaviours that were not was a permissible interpretation of the Act. The Act was not conclusive, and a lack of detail in the National Animal Welfare Advisory Committee’s reports on the application of the Act mean that it could not be ascertained whether the code they had created reflected expert judgment about the needs of layer hens, or an impermissible interpretation of the statute that animal welfare could be sacrificed counter to the Act’s overall purpose. The Committee did not uphold the complaint on the basis that even if the latter could be shown it is not clear it would have affected the code of welfare in any way.

B Reversal of Matter of Substantive Policy

In its report on the Road User Charges (Transitional Matters) Regulations 2012,²⁶³ the Committee found that use of transitional powers in a manner that constituted a substantive reversal of policy implemented by the parent Act was an unusual or unexpected use of those powers, even when that reversal constituted the continuation of previously-existing policy. The regulations concerned exempted certain classes of vehicles from Road User Charges and the requirement to carry permits, and, in addition, delayed the coming into force of a section of the Act for a year. The Ministry claimed that the Regulations were promulgated in order to fix minor administrative errors in the legislation and to allow policy and management decisions to be made.²⁶⁴ The Committee took the view that this “fixing” of errors actually amounted to a sharp reversal in policy, for which regulations, particularly those only authorised for transitional matters, were entirely unsuited. The Committee recommended the disallowance of all three regulations for making unexpected or unusual use of the powers, which eventuated in the historic first successful use of the section 6 disallowance procedure in February 2013.²⁶⁵

IX Henry VIII Clauses

Henry VIII clauses which amend primary legislation are generally discouraged.²⁶⁶ In conjunction with its inquiry into Henry VIII clauses, the committee considered a Henry VIII clause in the Resource Management (Transitional) Regulations 1994.²⁶⁷ The regulations were made pursuant to section 360(1) of the Resource Management Act 1991, which read as follows:

The 1994 regulations replaced section 417A of the principal Act. Section 417A was itself the result of an amendment made by the Resource Management Amendment Act 1993. This was done out of concern that the Act had the effect of making virtually all activities on the surfaces of lakes and rivers non-complying activities. However, the Ministry for the Environment acknowledged that section 417A, as a result of drafting errors and a lack of consultation, did not satisfactorily correct the problem, and in some cases had had the opposite effect. Using the Henry VIII power contained in section 360(1)(g), regulations were passed that did remedy the situation.

While acknowledging that the problems created by section 417A needed to be remedied, the Committee stated that the use of a Henry VIII clause should never be a substitute for adequate consultation and proper care in drafting. The Committee considered that the exercise of the Henry VIII clause constituted a breach of Standing Order ground 327(2)(c) on two grounds. First, regulations made pursuant to section 360(1)(g) of the Act had to relate to the coming into force of the Act. In this case, the regulation sought to correct an anomaly that was caused by an amendment to the Act and not the Act itself. Secondly, the regulations had the effect of suspending an amendment to the Act less than a year after it was made. For these reasons the Committee found the regulation to have been an unusual and unexpected use of the Henry VIII clause.

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226 Regulations Review Committee “Investigation into the Road User Charges (Transitional Matters) Regulations 2012” (13 November 2012) at 6.

227 Regulations Review Committee “Complaint Relating to Legal Services Board (Civil and Criminal Legal Aid Remuneration) Instructions 1998”, above n 167.

228 Regulations Review Committee “Complaint Regarding the New Zealand Teachers’ Council (Conduct) Rules 2004” (12 August 2013).

229 Regulations Review Committee “Complaint Regarding the New Zealand Teachers’ Council (Conduct) Rules 2004” (12 August 2013) at 12.

230 “Government response to report of the Regulations Review Committee: Complaint Regarding the New Zealand Teachers’ Council (Conduct) Rules 2004” (14 November 2013).

231 Regulations Review Committee “Complaint Relating to Survey (Departmental Fees and Charges) Regulations 1998 and Survey Regulations 1998” [2001] AJHR I16D.

232 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). The four notices were subject to an unsuccessful motion of disallowance (notices of motion given on 15 February 2011 and 15 March 2011).

233 “Government Response to Report of the 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” [2011] AJHR J1.

234 Regulations Review Committee “Complaint Regarding Student Allowances Amendment Regulations (No 2) 2004” [2006] AJHR I16B.

235 Regulations Review Committee “Complaint Relating to the New Zealand Food Standard 1996, Amendment No 11”, above n 194.

236 Regulations Review Committee “Complaint regarding the Canterbury Earthquake (Building Act) Order 2011” (24 April 2014) at 11–12.

237 Regulations Review Committee “Complaint regarding the Canterbury Earthquake (Building Act) Order 2011 (24 April 2014)” at 12.

238 Regulations Review Committee “Complaint regarding the Canterbury Earthquake (Building Act) Order 2011” (24 April 2014) at 10.

239 Regulations Review Committee “Complaint of the New Zealand Educational Institute on the Accident Rehabilitation and Compensation Insurance (Earner Premiums) Regulations 1992” [1992] AJHR I16F.

240 Regulations Review Committee “Inquiry into the Civil Aviation Regulations 1953, Amendment No 31” [1991] AJHR I16B.

241 Regulations Review Committee “Investigation into the Plumbers, Gasfitters and Drainlayers (Fees and Disciplinary Levy) Amendment Notice 2015” (25 November 2015).

242 Regulations Review Committee “Investigation into the Plumbers, Gasfitters and Drainlayers (Fees and Disciplinary Levy) Amendment Notice 2015” (25 November 2015) at 6.

243 For more detailed guidance on the setting of fees by regulation, see the Office of the Auditor General’s “Guidelines on Costing and Charging for Public Sector Goods and Services”, above n 181; and Treasury’s “Guidelines on Setting Charges in the Public Sector”, above n 181.

244 Regulations Review Committee “Inquiry into the Civil Aviation Regulations 1953, Amendment No 30” [1989] AJHR I16.

245 Regulations Review Committee “Investigation into the Land Transfer Amendment Regulations 1998 and the Survey (Departmental Fees and Charges) Regulations 1998” [2001] AJHR I16D.

246 Regulations Review Committee “Complaint about two notices made by the Plumbers, Gasfitters and Drainlayers Board relating to an offences fee and the Complaint regarding the Offences Fee contained in the Amendment to the Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010” (30 September 2013).

247 Regulations Review Committee “Investigation into the Marine and Coastal Area (Takutai Moana) Reclamation Fees Regulations 2012” (30 September 2013) at 8.

248 Regulations Review Committee “Complaint about two notices made by the Plumbers, Gasfitters and Drainlayers Board relating to an offences fee and the Complaint regarding the Offences Fee contained in the Amendment to the Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010” (30 September 2013).

249 “Government response to Report of the Regulations Review Committee: Investigation into the Marine and Coastal Area (Takutai Moana) Reclamation Fees Regulations 2012” (20 December 2013) at 6.

250 Regulations Review Committee “Complaint about two notices made by the Plumbers, Gasfitters and Drainlayers Board relating to an offences fee and the Complaint regarding the Offences Fee contained in the Amendment to the Plumbers, Gasfitters and Drainlayers Board (Fees) Notice 2010” (30 September 2013).

251 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). The four notices were subject to an unsuccessful motion of disallowance (notices of motion given on 15 February 2011 and 15 March 2011).

252 “Government Response to Report of the 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” [2011] AJHR J1.

253 Regulations Review Committee “Interim Report on the Complaint Regarding SR 2008/327 Marine Safety Charges Amendment Regulations 2008” [2009] AJHR I16A.

254 Regulations Review Committee “Interim Report on the Complaint Regarding SR 2008/327 Marine Safety Charges Amendment Regulations 2008” [2009] AJHR I16A at 13-14.

255 “Government Response to Interim Report of the Regulations Review Committee: Complaint Regarding SR 2008/327 Marine Safety Charges Amendment Regulations 2008” [2009] AJHR J1. The government’s progress in executing the Committee’s recommendations is set out in Regulations Review Committee “Complaint Regarding SR 2008/327 Marine Safety Charges Amendment Regulations 2008” [2011] AJHR I16K.

256 Overseas Investment Amendment Regulations 2008.

257 Regulations Review Committee “Complaint Regarding the Overseas Investment Amendment Regulations 2008”, above n 203.

258 Regulations Review Committee “Investigation into the Road User Charges (Transitional Matters) Regulations 2012” (13 November 2012) at 7.

259 Regulations Review Committee Investigation into the Road User Charges (Transitional Matters) Regulations 2012 (13 November 2012) at 7.

260 Regulations Review Committee “Report on the Complaint Regarding the Overseas Investment Amendment Regulations 2008”, above n 203.

261 Regulations Review Committee “Report on the Complaint Regarding the Overseas Investment Amendment Regulations 2008”, above n 203.

262 “Government Response to the Report of the Regulations Review Committee: Complaint Regarding the Overseas Investment Regulations 2008” [2009] AJHR J1.

263 Regulations Review Committee “Investigation into the Road User Charges (Transitional Matters) Regulations 2012” (13 November 2012).

264 Regulations Review Committee “Investigation into the Road User Charges (Transitional Matters) Regulations 2012” (13 November 2012) at 7-9.

265 See Chapter 3.

266 See Chapter 4 and 14.

267 Regulations Review Committee “Inquiry into the Resource Management (Transitional) Regulations 1994 and the Principles that Should Apply to the Use of Empowering Provisions Allowing Regulations to Override Primary Legislation During a Transitional Period”, above n 84.