LAC Guidelines Chapter 3: Basic principles of New Zealand's legal and constitutional system
Part 1: Does the legislation comply with fundamental common law principles
Part 2: Have vested rights been altered? If so, is that essential? If so, have compensation mechanisms been included?
Part 3: Have pre-existing legal situations been affected, particularly by retroactivity? If so, is that essential? What mechanisms have been adopted to deal with them?
Part 4: Does the legislation enable the levying of money? If so, is the levy a tax imposed by other than Parliament?
Everybody can understand their private ordering of affairs. Mostly that is done at a private and social level by personal commitments and between strangers by contract.
Everybody also understands that people's conduct can unintentionally cause harm to other persons including strangers. So we have the law imposing a duty to take care not to harm persons' property and person, and the law of defamation taking care not to harm people's reputation.
People understand that harm can be done intentionally and so there are criminal laws and civil laws imposing penalties and compensations for theft and destruction of property and various assaults to the person including death.
With all these laws dealing essentially with personal behaviour there is the apparatus of the State. The first purpose of the State is to defend the community against outside enemies and the second main function is to maintain internal order. The criminal law administered by the State is designed to maintain internal order and to allow individuals to enjoy their freedoms of person and property.
In addition to these essential tasks, in common with many other countries the political processes in New Zealand have developed numerous other functions of the State. The extent and content of these functions fluctuate over time as different political views dominate the lawmaking process. Over recent history these additional State functions have included:
- regulating activities in a modern industrial society (eg, safety codes and industrial relations);
- providing and maintaining essential services beneficial to the development of society (eg, health, education and welfare legislation);
- provision of bodies of law to facilitate private activity (eg, company law and partnership);
- the gathering of taxes to finance the provision of public services; and
- establishing the institutions to carry out these activities.
The laws giving effect to these state functions are typically statutes. Some of the oldest and principal functions such as defence and foreign affairs can in part be given effect by use of the traditional prerogative of the Crown. Statutes are the product of resolutions of the House of Representatives assented to by the Governor General. This process is sometimes referred to as parliamentary democracy. It has a long tradition, which affects the way that statutes are interpreted and so given effect by the courts. It is important for persons involved in the process of making legislation to understand this tradition and the expectations the Courts bring to its exercise, if they want to be able to anticipate how the Courts will interpret the new statute.
The tradition of government brought by the British was representative in character. In the United Kingdom, Parliament, consisting of the House of Commons and the House of Lords, would consider and vote on laws, which were submitted to the Monarch for approval. This is the "Westminster model". The United Kingdom has its own history of development of democracy from rule by the Monarch, to some powers for a parliament, to increasing rights to vote by property holders, to all adult men, and then women.
New Zealand did not adopt the representative government immediately. It was phased in, after direct rule by the Monarch's Governor, to partial and later the full Westminster model. New Zealand has its own history of extending the voting rights until they included all men and women.
The central principle of the Westminster model is that the Crown's Ministers have to have the support of the majority of votes in the House of Representatives. Only Parliament can pass laws enabling taxes to be raised and authorising the expenditure of the tax raised.
The laws of Parliament are interpreted authoritatively only by the Courts. The Courts apply well-established principles. The first principle is enacted in section 5(1) of the Interpretation Act 1999: "The meaning of an enactment must be ascertained from its text and in the light of its purpose." But it is wrong to suppose that the Courts read statutes in isolation from the rest of the laws. Statutes are read as taking effect in a legal system, among all the other laws. Statutes are the superior law and prevail over the common law. But there is often doubt as to exactly how and whether a particular provision of a statute will mesh in or prevail over existing law.
The common law has developed over centuries and is still developing to adapt to changing social conditions. It is organised around a respect for individual dignity and individual possession of property, and the supremacy of Parliament as a source of law. One of the earliest remedies of the law is the action of trespass, punishing individuals for assaulting others or entering upon their land without consent, or taking their goods. This common law concern for individual rights permeates into the interpretation of statutes passed by Parliament. It affects the perspective of the Courts to the taking away of rights and to a readiness to recognise that new individual rights have been created. This perspective gives rise to a number of issues which are discussed in Parts 1 to 3 of this chapter. But it can be usefully introduced by some general consideration of the situations which make the perspective relevant and of the need of persons making new law to address it.
Many public interest statutes can affect pre-existing individual rights recognised by the common law but for statute, either deliberately or inadvertently. The Courts will give effect to deliberate statute amendment of common law rights in the area of the statute's subject matter, but can be faced with a difficult task when it is not clear whether the statute intended to deprive a person of a common law recognised right. The basic common law perspective of the courts is that a person's liberty and property will only be taken away or confined after due process of the law, which processes are designed to ensure that no one is deprived of individual liberty unless a case is proven against that person by fair procedures. These ancient rights of due process protecting liberty and property date back at least to the 13th century and the Magna Carta. They are now in the Imperial Laws Application Act 1988 which preserves many of the ancient statutes securing liberty and due process. Some but not all are also reflected in the New Zealand Bill of Rights Act 1990.
The same perspective means that the Courts are disposed to recognise and look for protection of new individual rights in statutes. So, if a welfare statute grants entitlement to benefits to individuals who qualify, then the Courts will expect the statute to have fair procedures to resolve disputes about an individual's entitlement.
Part of the process of testing the quality of ideas for reforming the law is to ask how they would affect existing rights and privileges of individuals, whether it is justified to take those rights and privileges away, and how it should be done. If the new law would create new entitlements, similar consideration needs to be given as to the manner in which these new entitlements will be fairly determined and protected. If a Court charged with interpreting a new law has doubt that that analysis has been done when examining an uncertain provision of a statute, it might well conclude the statute did not intend to adversely affect existing rights, and/or presume that new rights will be granted impartially and should be protected from arbitrary removal. So it behoves political lobbyists, public servants and Members of Parliament to examine proposed law reforms against similar tests to decide whether and to what extent it is desirable to take away existing rights, and to ensure that there are fair processes in place in respect of new entitlements. If there are not, then it is desirable that there should be a further inquiry, to be satisfied that there is good reason to change the existing law, and to endeavour to design the new law to fit established respect for individual rights. New laws are often proposed out of urgent political situations. There is often associated a popular opinion that matters hitherto not controlled by Parliament through statutes should now be so, and without any delay. In this context it is especially important to endeavour to bring to the task, however urgent, a degree of detachment from the immediate needs of the moment.
In this sense parliamentary democracy should be understood, as it is by the Courts, to be a system of equilibrium between the right of the majority, through Parliament, to make law binding on individuals, and yet a respect for individuals' rights, whether old or new. Parliamentary democracy is not simply the proposition that anything a majority decides must be always right and good. Rather it proceeds upon a presumption that when the majority vote for a law which constrains individuals or takes away any of their freedom of person or property it will only be for a good reason. That good reason may be a judgement that the price of constraining some individuals' liberty and perhaps taxing some of their property or otherwise interfering with their property and goods is a cost which is outweighed by the benefit to the community as a whole. Similarly where the new law grants new entitlements to individuals, the common law perspective will dispose the Courts to presume that Parliament intends the entitlements to be recognised and protected fairly as individual rights. This perspective applies not only to the administration of the instant statute but to the transition to a new statute if the statute law is subsequently reformed.
Part of the protection put in place to ensure that individual freedoms are not capriciously taken away is the notion of separation of power. Most constitutions around the world ensure, in varying ways and by varying degree, that no one person holds all the political power. The traditional ideal of separation is between the lawmaker, the executive, and the judge. Although New Zealand does not have a complete written constitution this is also the case in New Zealand. The exclusive right of the courts to declare the law, including what a statute means, is an important separation of power, of the judge from the lawmaker and the executive.
The following issues are discussed in this Chapter:
Part 1: Does the legislation comply with fundamental common law principles?
3.1.1 Outline of issue
In considering whether legislation is needed, and, if so, what form it should take and what will be its effect, it is necessary to consider not only the language of the proposed statute, but its place within the wider law and the principles by which it will be interpreted.
Statute law, expressing the will of the elected representatives in Parliament, is extensive but only part of New Zealand law. It may be considered a continent within the ocean of the common law. In some cases, such as the criminal law, the law has been largely codified by statute.
The whole of the common law is judge made. Its development and progressive updating by them to meet changing social needs is a constitutional function of the common law judiciary.
The common law includes:
- much of our substantive law, such as
- the law of tort  (apart from such modifications as the Defamation Act 1992  and the Fair Trading Act 1986)
- the law of contract  (apart from such measures as the codification of the law of sale of goods, the so-called "contracts statutes", and the Consumer Guarantees Act 1993)
- most of what is called "equity"  (apart from the Trustee Act 1956);
- much of the law  by which Parliament's statutes are interpreted by the judges (see below) (apart from the Interpretation Act 1999);
- almost the whole of the law of judicial review (see below).
An Act of Parliament will override the common law to the extent of any inconsistency between them.
In exercising their function of interpreting legislation, the courts will seek to ascertain and give effect to the will of Parliament. That is presumed to conform with the principles stated below.
Certain broad principles of public policy are the subject of presumptions of the common law. The judiciary will be reluctant to interpret legislation in a manner that conflicts with them. Rather, as observed by Lord Hoffmann in Ex parte Simms  3 All ER 400 at 412,—
"Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights...The constraints on Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document."
These principles apply equally in New Zealand:
"The process is like that of a spring: as the Crown attempts to depress the court's powers of control of constitutional balance the courts' resistance increases progressively..." 
It is the responsibility of the Executive and of Parliament to avoid imposing such pressures on the courts as to risk constitutional brinkmanship.
The principles include:
- the principle that the dignity of the individual is a paramount concern of the law. This principle is most obviously seen in the application of basic human rights, for example, the requirement that informed consent be given before medical procedures are undertaken on a person and in other rights such as freedom from discrimination;
- the principle of legality which essentially means that legislation will be interpreted in a manner consistent with legal principles. Hence, for example, it will be presumed that mens rea is required in the case of statutory crimes, and, that statutory powers must be exercised reasonably.
- the principle that the citizen is entitled to have access to the courts, despite legislation which might be construed to remove it;
- the principle that construction of legislation is a matter for the courts and not the executive;
- the principle that no-one will be required to perform something that is impossible; from which follows the presumption against construing legislation as having retrospective effect  (the principle relating to non-retrospectivity is discussed in more detail in Part 3 below);
- the principle that no-one is guilty of a crime who has not committed a criminal act with knowledge of the facts that make it criminal;
- the principle that the citizen is not required to answer questions by anyone including officials;
- the principle in favour of liberty of the subject;
- the principle that no-one may be penalised except by a general measure rather than by act of attainder;
- the principle that no tax will be imposed except by Parliament  (this principle is discussed in more detail in Part 4 below);
- the principle that property will not be expropriated without full compensation  (see the further discussion on this principle in Part 2 below);
- the principle that everyone exercising public authority must act legally, reasonably, and honestly. These requirements include, among many others
- the principle of the rule of law that no-one, including the Crown in exercise of executive authority, is above the law;
- the principle that all are treated equally under the law;
- the principle that New Zealand's constitutional conventions are not infringed;
- the principle that New Zealand law conforms with both international law and our treaty obligations; in particular that it conforms with the Treaty of Waitangi  (see Chapter 5);
- the principle that delegated authority must be exercised within the power actually conferred, despite use of subjective language;
- the principle that foreign tax legislation is unenforceable in New Zealand courts.
The list is illustrative, not comprehensive.
Because it is impossible for Parliament to legislate for every contingency the court may have to interpret language the application of which in a particular case is unclear. See for example the leading criminal law case of R v Rongonui  2 NZLR 385, in which 3 judges held that the law of provocation stated in s 169 of the Crimes Act was to be construed in a certain sense and 2 preferred another. Some examples of the courts' approach when construing legislation are:
- the court will where necessary fill a gap to express the presumed intention of Parliament;
- the court will where necessary have recourse to its inherent jurisdiction.
Of particular importance in the sphere of government are the principles of judicial review, which apply to all persons and bodies exercising public functions, other than Parliament which accepts responsibility to regulate its own affairs. The courts of general jurisdiction—the High Court and the Court of Appeal—reserve the right to intervene and grant relief whenever such a body infringes the law. They may apply to most forms of Executive conduct, whether pursuant to statutory authority or in exercise of the Crown's prerogative.
It is impossible in this Part to do more than sketch a broad outline of the effect the common law may have in relation to actual or contemplated legislation. It is no substitute for referring any problem or proposal to an experienced lawyer, familiar with New Zealand's public constitutional, administrative and criminal law, and able where necessary to discern the need for specialist advice.
Check whether the legislation complies with the fundamental common law principles. If it does not, the reasons for non-compliance should be determined and the matter referred to the Attorney-General.
Part 2: Have vested rights been altered?
3.2.1 Outline of issue
The issue discussed in this Part is the approach to be taken in legislation to property rights. In particular, the question is whether or not legislation removing property rights should also provide for compensation for the loss of such rights.
In various situations the presumption has been advanced that title to property or full enjoyment of its possession may not be compulsorily acquired without compensation unless such an acquisition was clearly the intention of Parliament. (See, for example, Cross "Statutory Interpretation" 1995, pp 178-179 and O. Hood Philips' "Constitutional and Administrative Law" 7ed 1987, p 530.)
The strength of the presumption is illustrated by the decision in Burmah Oil Company (Burma Trading) Ltd v Lord Advocate  AC 75. Lord Reid observed that, "even at the zenith of the royal prerogative, no one thought that there was any general rule that the prerogative could be exercised, even in times of war or imminent danger, by taking property required for defence without making any payment for it." (p 102).
The presumption applies in New Zealand although there is no protection of property rights equivalent to that in the US Fifth Amendment. The latter protects the taking of property without due process. Chapter 29 of Magna Carta which protects the "right to justice" and the right not to be disseised of freehold is, however, part of New Zealand law.
The presumption requires the drafter to consider whether the proposed legislation is a "taking" of "property". There is a vast range of American authority on this point. If property is involved and if what is proposed is a taking, consideration will need to be given as to whether or not compensation should be provided. In these circumstances, if compensation is not to be paid the legislation should make quite clear this intention.
The development of this presumption reflects the fact that "the protection of property is generally regarded as one of the fundamental values of a liberal society." (Cross, p 179). Legislation which affects such values, for example, legislation taking away a property right and providing that no compensation is to be paid, may also raise issues about the acceptability of the legislation. As Baragwanath J observed in Cooper v Attorney-General  3 NZLR 480 at 485, "Disregard of convention" will "bring pressure" upon the legitimacy of decisions made by elected representatives "in the sense of unchallenged public acceptance of the constitutionality of legislation, ...".
In the United Kingdom the pressure brought to bear on the resultant legislation is referred to in the context of a "principle of legality". For example in R v Secretary of State for the Home Department, ex parte Simms and another  3 WLR 328 the House of Lords noted, in considering a blanket ban on interviews for prisoners, "In these circumstances even in the absence of an ambiguity there comes into play a presumption of general application operating as a constitutional principle... This is called "The principle of legality" (at p 340 per Lord Steyn).
Obviously, matters engaging the notion of a "principle of legality" will arise only in the more extreme case.
If legislation would implement a taking of property, consideration should be given to whether compensation should be paid to those affected.
Where legislation would constitute a taking of property and it is not intended that compensation will be paid, the legislation should make this quite clear.
Part 3: Have pre-existing legal situations been affected?
3.3.1 Outline of issue
The issues are:
- What impact does the legislation have on existing situations?
- What factors should be considered when deciding how the legislation should affect existing situations?
- How should the legislation deal with relevant pending litigation?
The general principle is that statutes and regulations operate prospectively, that is, they do not affect existing situations. This principle is set out in s.7 of the Interpretation Act 1999 which provides that enactments do not have retrospective effect. Reference should also be made to ss 17 to 21 of that Act which deal with the effect of the repeals of legislation.
The general principle is strongest in the case of criminal liability and this is seen in particular provisions in the criminal law area, namely, s 10A of the Crimes Act 1961 and s 4 of the Criminal Justice Act 1985. Section 26 of the New Zealand Bill of Rights Act 1990 is to similar effect. Section 26 repeats New Zealand's international obligations in this area which are found in Article 15 of the International Covenant on Civil and Political Rights.
At common law, there are general presumptions of interpretation which also have the effect of applying the law prospectively. Clear legislation is needed to displace these presumptions.
Unless there is clear provision to the contrary in legislation, the effect of the relevant statutory provisions and the common law is that legislation will apply prospectively. In any particular case, careful consideration should be given to legislation which might or will have an effect on existing situations. The question may arise whether particular application, transitional, or savings provisions are required.
A number of factors should be considered in deciding how legislation should deal with existing rights. The overall question is one of fairness to those affected (L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd, the Boucraa  1 AC 486). In particular, legislation should not interfere with accrued rights and duties, nor should it create criminal liability or penalty retrospectively.
However, while the general principle is that legislation is prospective, not all examples of legislation which impacts on existing situations will be unfair (see Burrows, Statute Law in New Zealand, 1999, page 358). Examples of retrospective provisions which are seen as having only a benign effect include those which validate appointments, or provide for backdated salary and benefit payments and new superannuation arrangements. The impact of the legislation on those affected can be assessed by considering a range of factors including the purpose of the legislation and the hardship of the result on those affected. For example, individuals may have a reasonable expectation based on entering into legal obligations, such as contracts, on the basis that the law will have a certain impact.
In some circumstances, it may be unjust to apply new law to old situations. The Law Commission in chapter V of its report on a New Interpretation Act (NZLC R17 1990) for instance notes that no-one should be subject to a criminal penalty for some act that was not a crime at the time of the alleged offence. There may however be a public interest requiring the law, for instance of taxation of oil exploration, to be altered.
Another factor to consider is whether it is necessary for effective administration for the law to affect existing situations. For example the Law Commission report notes that new courts, institutions and procedures might have to apply to existing obligations and rights to avoid injustice or inefficiency in administration. This may include consideration of economic factors such as the costs to the Government.
Accordingly, the Committee was critical of a 1992 Bill repealing s 51 of the Patents Act 1953. The repeal cut off three applications for licences in relation to patented food or medicines before those applications had run their course. The problem was that in the circumstances the applicants had accrued rights and those rights should have been protected by appropriate transitional arrangements in the Bill. The Committee was also concerned that the repeal prevented patentees from asserting their rights by bringing a successful appeal.
There is further discussion of examples of legislation contradicting this principle in the Committee's Report No 9 Recurring Issues. The Report also includes a memorandum on "Legislation Overriding Judgements and Legal Proceedings" that was prepared in May 1995 at the request of the Finance and Expenditure Select Committee. In addition to the bar on applying criminal liability retrospectively, the memorandum states that a judgment and proceedings under the old law should be protected where the judgment obtained or sought can be given effect to without undermining the purpose requiring retrospectivity. For example, the Citizenship (Western Samoa) Act 1982, was designed to implement a protocol signed by the Governments of New Zealand and Western Samoa to deal with the consequences of the decision in Lesa v Attorney-General  1 NZLR 165. It considerably altered the law stated in that decision, but s 5, in conformity with the decision, declared the litigant in the particular case to be a New Zealand citizen otherwise than by descent. Consistently with principle, the Act also made clear that no-one subject to the Act should be prosecuted for overstaying offences allegedly committed before the Act was passed.
Finally, legislation should not, in general, deprive individuals of their right to benefit from the judgments they obtain in proceedings brought under earlier law, or to continue proceedings asserting rights and duties under that law.
Unless there is clear provision to the contrary in legislation, legislation will apply prospectively. However, consideration should be given to the impact of legislation on existing situations. A number of factors should be considered. The overall question is fairness to those affected.
Another consideration is whether it is necessary for effective administration for the law to affect existing situations.
Hence, the questions to ask are:
- Is there a case for retrospectivity? and
- If it is, would the judgment, if it is continued in effect, nullify the substance of the legislation?
Part 4: Does the legislation enable the levying of money?
3.4.1 Outline of issue
The fundamental constitutional principle which applies to the imposition of taxes and government charges is that Parliament, and Parliament alone, can levy money for the Crown. This principle is reaffirmed in section 22 of the Constitution Act 1986, which provides that it is not lawful for the Crown to levy a tax except by or under an Act of Parliament.
Legislative authority for the imposition of fees is usually provided by including empowering provisions in an Act to authorise the making of regulations to fix fees or charges.
An Act usually provides that fees are prescribed by regulation if they are charged for—
- a service or function which is standard to Government (eg the issue of passports)
- a service or function over which the user has no choice or contractual control
- a service or function which the Government has an interest in ensuring is not overpriced (the issue of professional practising certificates at a price which does not exclude entry to the profession).
Fees should bear a proper relation to the cost of providing the service or performing the functions.
Although an Act may empower the making of fees regulations, this does not mean that the Act empowers the Crown to impose a tax. The cases establish that a fee, due, rate, levy, or toll may in fact be a tax by another name. Re a By-law of the Auckland City Council  NZLR 907 at 911 (SC). In such cases the fee or charge is invalid. However, a fee, due, rate, levy, or toll will not be considered to be a tax if the amount charged is merely for recovering administrative costs reasonably incurred in regulating an activity.
Fee charging principles
The principles that apply to setting fees by regulation have been considered by the Regulations Review Committee, the Audit Office, and, more recently, the Treasury. These principles recognise the constitutional position where consumers have no choice but to purchase goods and services from the Crown.
The Regulations Review Committee approach is based on 2 broad principles. The first is the constitutional principle that the Crown cannot levy taxes without the explicit authority of Parliament. A fee that recovers more than the cost of a service provided under an Act or regulation may be a tax in disguise. Secondly, a regulation which fixes a fee or charge may offend 1 or more of the grounds in the Standing Orders under which the committee considers regulations. For example, a fee may trespass unduly on personal rights and liberties if it is imposed in unfair circumstances.
Detailed principles relating to charging of fees for particular matters are set out in the Audit Office and Treasury guidelines. The Audit Office guidelines require a public sector agency to consider a number of factors when setting or reviewing fees and charges. The fee setting process must include a determination of the costs of resources required to produce an output, apply an appropriate method for calculating fees or charges, and consider other relevant administrative aspects. The Treasury in its guidelines requires that charges set are not excessive in relation to the costs incurred and that charges are appropriate and fair.
Fee or a tax?
The mere fact that an amount is described as a fee does not preclude it from it being considered to be a tax by another name. If it is considered to be a tax then the fee is ultra vires and invalid.
The distinction between a tax and a fee was considered in the Regulations Review Committee's Inquiry into the constitutional principles to apply when Parliament empowers the Crown to charge fees by regulations. The Committee endorsed the decision of the High Court of Australia in Air Caledonie International and Others v Commonwealth of Australia  82 ALR 385. The court discussed the character of a tax and considered that if a levy was compulsory, was for public purposes, and was enforceable by law, then it had the basic characteristics of a tax. The case involved the consideration of an immigration fee and the court decided that even though the impost was described as a fee it could be, and in fact was, a tax.
The Committee has also emphasised that if the amount of a 'fee' fixed by regulation under statutory authority exceeds the value of that which is acquired, that fee is properly to be seen as a tax.
Increases in fees
A regulation proposing a significant increase in fees is likely to be the subject of a report by the Regulations Review Committee, as it is the Committee's practice to make enquiries about such increases. The Committee may recommend to the Government that the regulations be revoked.
A fee should bear a proper relation to the cost of providing a service. The situations in which fees may be queried include the following:
- fees that are clearly out of line with comparable fees elsewhere (eg, a per page photocopying fee that is clearly much more expensive than other per page photocopying fees prescribed elsewhere)
- if the Cabinet papers disclose any suggestion of cross-subsidisation, factors other than cost recovery, or any suggestion that the fees are being used to encourage or discourage people from a particular course of activity
- fees that seem excessive in relation to what the task to be performed involves
- substantial increases in fees with no indication in the Cabinet papers as to why
- fees, some of which are substantially increased and others which are not with no indication in the Cabinet paper as to why.
An example of regulations that the Committee drew to the attention of the House and recommended be revoked were the Disputes Tribunals Amendment Rules 1998. The rules proposed a substantial increase in filing fees and reflected a move towards a greater level of cost recovery by the Department for Courts. A majority of the committee were concerned about the likely impact the regulations would have on access to the Disputes Tribunals procedures. They were of the opinion that the rules were not only contrary to the objects and intentions of the Act under which they were made, but that they also created potential barriers to justice. These are both grounds on which the committee can draw regulations to the attention of the House under Standing Order 382. They considered that the barrier could be either that the level of the fees excludes potential claimants on low incomes or that the fees represent too high a proportion of the total amount claimed.
When considering whether the correct principles relating to charging of fees have been applied, the following questions should be asked:
- Is the fee greater than cost recovery?
- Do any of the grounds in Standing Order 382 apply?
- Has the department or agency considered the Audit Office and Treasury guidelines when setting the fee?
A fee is likely to be regarded as a tax if—
- it is greater than the cost recovery
- it does not bear a proper relation to the cost of providing the service or performing the function
- it is compulsory, for a public purpose, and enforceable by law, regardless of whether it is less or more than cost recovery.
Those preparing legislation should ask the relevant government agency to justify any substantial increase in fees preferably with reference to the following:
- Audit Office guidelines
- Treasury guidelines
- Cabinet papers.
If it appears that a fee for one service is being used to cross-subsidise another service, consider whether the cross-subsidisation is appropriate in light of the empowering Act, the Audit Office guidelines, and the views of the Regulations Review Committee. In particular check the following:
- is the cost of providing the output "an essential element" in the determination of the fee?
- are those paying the fee receiving essentially the same services or benefits, or are different groups receiving significantly different benefits? is the cross-subsidisation in the provision of particular services transparent and authorised by primary legislation?
- is the cross-subsidisation in the provision of particular services transparent and authorised by primary legislation?
5. Crimes Act 1961. See however s.20, maintaining common law defences.
6. To be contrasted with the theoretical denial of such function to the French civil law judges: see The Law of France and the Law of New Zealand  NZLJ 13, citing Article 5 of the Code Napoléon.
7. Discussed in such texts as Todd on Torts (2nd ed).
8. In Lange v Atkinson  NZLR 257 the Privy Council decided that the determination of the common law of New Zealand did not necessarily follow that of England and is a matter for the judicial politics of New Zealand.
9. Discussed in such texts as Burrows Finn & Todd Law of Contract in New Zealand (1997).
10. Sale of Goods Act 1908.
11. Contracts Enforcement Act 1956; Illegal Contracts Act 1970; Contractual Mistakes Act 1977; Contractual Remedies Act 1979; Contracts (Privity) Act 1982.
12. Discussed in such texts as Snell on Equity (30th ed) and Modern Equity by Meagher, Gummow and Lehane (3rd ed).
13. Discussed in such texts as Burrows Statute Law in New Zealand (2nd ed); Bennion Statutory Interpretation (3rd ed).
14. Discussed in such texts as Joseph Constitutional and Administrative Law (2nd ed forthcoming), Taylor Judicial Review; De Smith Woolf and Jowell Judicial Review of Administrative Action. The Law Commission is to propose that almost all of the Judicature Amendment Acts 1972 and 1977, which provide procedures parallel to those of the common law, should be repealed, leaving the substantive law of judicial review essentially in the common law.
15. Some dating back to Roman law, still important, are conveniently found in Brooms Legal Maxims (10th ed) 1939.
16. W D Baragwanath Dynamics of the Common Law (1987) 6 Otago University Law Review 355 at 367, citing New Zealand Drivers' Association v New Zealand Road Carriers  1 NZLR 374.
17. See Cooper v Attorney-General  2 NZLR 480.
18. The principle was noted by President Maclaurin of MIT in an address reproduced in Richard Cockburn Maclaurin MIT 1920 page 47 "These views will remain of vital interest and import as long as they satisfy the deepest needs of man. They are two in number: First a view of the possibilities and the worth of the individual man, a view that gives dignity to the human struggle however sordid its conditions; and the second a view of the right relations of man to his neighbor, a view that supplies an impulse and a guide to social action." It has been applied recently by the Constitutional Court of South Africa in State v Makwanyane  1 LRC 269, by the Supreme Court of Canada in Law v Canada (Minister of Employment and Immigration)  1 SCR 497, and in essays by Feldman  Public Law 682 and  Public Law 61.
19. Stated by Sir Rupert Cross in Statutory Interpretation (3rd ed) and applied in Reg v Home Secretary ex p Pierson  AC 588. R v North and East Devon Health Authority, exparte Coughlan  2 WLR 622.
20. Famously endorsed by the 17th Habeas Corpus legislation still in force : see Reprinted Statutes Volume 30 and NZLC R44 Habeas Corpus: Procedure (1997). See also R v Lord Chancellor, exparte Witham  2 All ER 779.
21. Chester v Bateson  1 KB 829 cited New Zealand Drivers' Association v Attorney-General  1 NZLR 374, 390.
22. L v M  2 NZLR 519.
23. Withey & Ors v Commissioner of Inland Revenue (No 2) (1998) 18 NZTC 13, 732.
24. Accolade Autohire Ltd v Aeromax  2 NZLR 15; see also s.7 Interpretation Act 1999.
25. B (A Minor) v Director of Public Prosecutions  2 WLR 452 (HL).
26. Taylor v New Zealand Poultry Board  1 NZLR 394.
27. Burrows Statute Law p204; Dicey An Introduction to the Study of the Law of the Constitution (10th ed) pp 207-8; Sedley Freedom Law and Justice Sweet & Maxwell 1999 Ch 1.
28. See Kable v Director of Public Prosecutions (1995) 185 CLR 528.
29. A-G v Wilts United Dairies (1921) 37 TLR 884 (CA); (1922) LJKB 897 (HL); 8(2) Halsburys Laws of England (4th ed Reissue) para 229.
30. Cooper v Attorney-General  2 NZLR 480; Wells v Newfoundland (1999)] 177 DLR (4th) 73.
31. Sedley Freedom, Law and Justice Ch 2.
32. Cooper v Wandsworth Board of Works (1863) 14 CBNS 180.
33. See cases cited in Chelliaya v NZIS  BCL 1.
34. M v Home Office  1 AC 377; Sedley The Crown in its own Courts in Forsyth and Hare ed The Golden Metwand and the Crooked Cord (1998) pp 253-266; NZLC R37 Crown Liability and Judicial Immunity: a response to Baigent's Case and Harvey v Derrick (1997) pp 6-13.
35. Reckitt & Coleman (NZ) Ltd v Taxation Board of Review  NZLR 1032.
36. Marshall Constitutional Conventions Clarendon 1986; Roach The Attorney-General and the Constitution (2000) University of Toronto Law Journal 1, 21 ff; JJ McGrath QC, S-G The Crown, the Parliament and the Government (1999) 7 Waikato Law Review 1.
37. Tavita v Minister of Immigration  2 NZLR 257; NZLC R45 The Treaty Making Process: Reform and the Role of Parliament (1997).
38. New Zealand Maori Council v A-G  1 NZLR 687.
39. Reade v Smith  NZLR 996.
40. Government of India v Taylor  AC 491; Controller and Auditor-General v Sir Ronald Davison  2 NZLR 278.
41. Northern Milk Vendors Assn Inc v Northern Milk Ltd  1 NZLR 530; Goldsboro v Walker  1 NZLR 397, 404 (applying the Latin maxim from Broom that expression of the greater impliedly include the lesser); Inco Europe v First Choice Distribution  1 WLR 586 (HL).
42. Canada Trust Co v Stolzenberg  1 WLR 1582 at 1589.
43. S.1 Article 9 Bill of Rights 1688 (Eng) Reprinted Statutes of New Zealand Volume 30 p 41; Prebble v Television New Zealand  3 NZLR 1.
44. Judicature Amendment Acts 1972 and 1977.
45. Burt v Governor General of New Zealand  3 NZLR 672; Patel v Chief Executive of the Department of Labour  1 NZLR 102.
46. Report of the Regulations Review Committee on the Inquiry into the constitutional principles to apply when Parliament empowers the Crown to charge fees by regulations, 1989, AJHR, I. 16C; and Report of the Audit Office on Guidelines on Costing and Charging for Public Sector Goods and Services, 1989; and Treasury Guidelines for Setting Charges in the Public Sector, March 1999.
47.Standing Order 382
48. However, a New Zealand case decided before Air Caledonie may lend support for fixing fees in excess of the cost of the value of the service. The decision of Heron J in Cossens and Black Limited v Prebble (Heron J, 11 August 1987, Wellington A318/84) suggested that one fee may be able to subsidise the provision of another service. Heron J disagreed with the argument that the fees must relate to the services provided under section 197 of the Shipping and Seamen Act 1952. Instead he held that the Executive may prescribe fees for any service provided under the Act, and the amount may take into account more than just matters directly related to that service. However, keep in mind the later decision when considering this issue given the later decision of the High Court of Australia in Air Caledonie and the approach of the Audit Office and the Regulations Review Committee.
49. Report of the Regulations Review Committee on the Inquiry into the constitutional principles to apply when Parliament empowers the Crown to charge fees by regulations endorsing the decision of the High Court of Australia in Air Caledonie International and Ors v Commonwealth of Australia  82 ALR 385.