Statutory provision for policy statements : abuse or control of executive power?

Abstract

This thesis considers the practice developed under the fourth Labour Government of legislating for policy statements in prescribed form by the Executive. The methodology adopted is to consider a range of such legislative provision in New Zealand, using administrative law principles and the legal precepts relating to the constitutional propriety of regulations. Consideration is also given to theoretical legal analyses of "quasi-legislation" such as codes of practice, published policy manuals or guidelines, and United States practice concerning the publishing of agency rules under the federal Administrative Procedures Act 1949. Overseas examples drawn on include statutory provision for policy statements in California, Victoria, and New South Wales. A statutory policy statement is defined as any form of Executive policy-making, governed by express powers in primary legislation, which seeks to refine the purposes and operational objectives of the statute, or which outlines courses of action proposed by the Executive or devolved authorities needed to achieve statutory goals. Many, but not all, statutory policy statements are created to have legal as opposed to simply administrative effects: they are not simply Ministerial advice or exhortation. Such legal effect can only be ensured by express clauses in the primary statute. However, by definition the statements relate to matters of policy, and are not clearly or finally determinative of powers, rights and obligations. Where such policy statements do have legal effect, and are not simply advisory or exhortatory, constitutional principle suggests that conflict may occur between the functions of the Executive and the Courts. The Courts both interpret and develop statute law, thereby creating case law, and finally decide issues in the enforcement of the law. Statutory policy statements will not always be readily justiciable, and they should not be conceived of as being finally determinative of the construction of a statute. If they were finally determinative, they would be destructive of the constitutional principle relating to the source of the rule of law. The function of writing the law rests with Parliament, and the function of finally determining the construction of statute and the lawfulness of any subordinate legislation must lie with the Courts. Although policy statements are a valid form of subordinate legislation, they pose a number of problems in administrative law. Where the Executive takes actions under a statutory policy statement, the general requirements governing Executive policy and discretion as they have come to be expressed in administrative case law will apply. However, the situation will be complicated by the body of fresh interpretations of existing statute law contained in the statutory policy statement. That interpretation may be very complex in its own right. If policy statements are out of jurisdiction, the statements and decisions made under them will be struck down by the Courts; they will be unlawful. Such difficulties, arising from ambiguity in legal effect, suggest that they may not be more efficient in practice than the case law traditionally written by the Courts. Where the policy statement is lawful, it is suggested that its value in statutory interpretation by the Courts is likely to be limited unless it is carefully articulated with, and clearly intended by the Legislature to control, subordinate instruments of devolution such as statutory plans or rules. The value of statutory policy statements lies in the clarification of the intent behind the Executive's interpretation of statute law, and in potential improvements in consistency of the exercise of discretionary powers. As such, statutory policy statements reflect a continuing trend towards a new style of Parliamentary supervision or control of the discretionary policy-making powers of the Executive. In the context of devolution, policy statements are useful methods for ensuring that the national interest is expressed in the policy of devolved authorities.