Subordinate Legislation (Confirmationand Validation) Bill (No 3)

Tēnā koutou to members and Mr Chairperson as we gather for the important Committee stage of the Subordinate Legislation (Confirmation and Validation) Bill (No 3). I hope the opportunity will exist to take multiple calls, not only on this part but also on Part 2, which is very important. Part 1 is primarily concerned with general and technical provisions. It raises a number of questions that I would like to put to the Minister in the chair, Michael Cullen, that do not seem to be sufficiently answered by reference to the predecessor legislation. I refer to the provision contained in clause 5 that the Subordinate Legislation (Confirmation and Validation) Act of 2003 is to be repealed.

The starting point for these issues is really clause 3, which seems superficially to be straightforward. It sets out the purpose of the respective parts of the legislation. It deals firstly with Subpart 1 of Part 2 and simply notes, as it properly should, that the purpose of the part is to confirm and validate certain subordinate legislation made under certain statutes that would otherwise lapse unless confirmed or validated. Clause 3(2) then deals with validations affected by two provisions: the provision in clause 12 relating to the New Zealand Superannuation Act and the Social Security Act, and the provision in clause 13 relating to the War Pensions Act. It is not completely clear whether that validation would also be relevant to new clause 12A, inserted by the Regulations Review Committee. As a matter of statutory interpretation, it may very well be intended that clause 12A is to be subsumed into clause 12. If that is the case, I can see that some complicating problems may well arise.

The real point in connection with clause 3(2) is expressed in the paragraphs of that clause. The validations do not do these things: “(a) express an intention to give legislative force to the provisions of those enactments; or (b) apply to any reason for invalidating any of those enactments; or (c) override any presumption that would otherwise apply to any of those enactments.” The paragraphs that I have read out are a replication of what is in the Act that is now proposed to be repealed. But their exact scope was not clear to the Regulations Review Committee—although, in the result, we took no real account of that. I ask the Minister why those provisions have been carried forward and what the legislative purpose is of having those provisions. It seems to me that they have been carried forward simply as a matter of routine, as the predecessor legislation has been enacted year by year.

What is contemplated, for example, by a validation not expressing an intention to give legislative force to the provision of the enactment? There is no doubt that those validations have a legislative quality. It may be a legislative quality that is more associated with delegated legislation than with legislation that has a primary purpose, but the bill does not state that.

💬 Hon Dr Michael Cullen: It is in there.

The Minister is saying that the primary legislation has those matters in it. That is not the point, though. I am asking what is intended by the scope of that paragraph.

Then there is the second saving, which is concerned with the application of reasons for invalidating those enactments. Will that preserve intact the possibility that despite the confirmation and validation procedure that we are being asked to undertake, there is nevertheless the prospect of the invalidation of those regulations? If it does, we are faced with the situation whereby it may be that some of those pieces of subordinate legislation are not regulations.

To give an answer, the matter is quite complex. I understand that there was a court decision some years ago that confirmation by bill could rule out any other form of challenge. In this case, this legislation is intended to make sure that it does not extend as far as that. It is purely and narrowly confined to the confirmation of the actual orders to lift the rates of New Zealand superannuation and benefits, etc.

Part 1 agreed to.

Part 2 Confirmations and validations