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Gobbi, Mark --- "In Search of International Standards and Obligations Relevant to New Zealand Regulations" [2008] NZYbkIntLaw 14; (2008) 5 New Zealand Yearbook of International Law 327

IN SEARCH OF INTERNATIONAL STANDARDS AND OBLIGATIONS RELEVANT TO NEW ZEALAND REGULATIONS

Mark Gobbi^[*]

I. Introduction

As noted in the article ‘In Search of International Standards and Obligations relevant to New Zealand Acts’, the Cabinet Office Manual stipulates that proposed bills should comply with the relevant international standards and obligations.^[1] This stipulation also applies to regulations.^[2]Consequently, the recommendations previously made to ensure that proposed bills meet this requirement also apply to proposed regulations. Part II summarises those recommendations while outlining how the master list of regulations known to have implications for New Zealand’s international obligations came to be. Part III records some observations regarding the master list. Part IV, among other things, recommends that agencies that administer Acts containing provisions empowering the making of regulations that implement international standards or obligations should create and maintain up-to-date lists of the regulations made under those provisions. Part V sets out the list itself.

II. How the Master List Came to Be

The idea for the master list of regulations presented in Part V came to mind sometime after the Legislation Advisory Committee began circulating its revised guidelines for legislative change in 1992.^[3] The revised guidelines contained a list of Acts with ‘possible implications for New Zealand treaties’.^[4] The tentativeness of this statement, and the absence of information identifying the relevant international instruments, led to the creation of a database that associates Acts known to have implications for New Zealand’s international obligations with the international instruments that are relevant to those Acts.^[5]To ensure that New Zealand legislates in a manner that is consistent with its international obligations, the presentation of that work recommended that the relevant government agencies should:^[6]

• Check and update the list of the Acts that they administer;

• Identify those Acts that concern New Zealand’s international obligations;

• Add value to their lists of identified Acts (for example, by linking the provisions of the identified Acts with the corresponding provisions in the relevant international instruments);

• Keep abreast of the Executive’s activities in the international arena that relate to their lists of identified Acts;

• Make their lists publicly available (particularly on the Internet); and

• Update their lists regularly.

Unlike the Acts that are relevant to our international obligations, the majority of the regulations that are relevant to New Zealand’s international obligations contain some indication of the relevant international instruments. Of these regulations, 80.73% supplied this information (155 out of 192).^[7] Of the Acts, only 29.80% did (59 out of 198).^[8] The larger number of extant regulations that had to be examined offset this time-saving gain (2,686 regulations^[9] as compared to 1,092 Acts^[10]).

The master list of regulations does not include extant commencement orders related to Acts that implement international obligations^[11] and extant revocation orders related to regulations that implemented international obligations.^[12] It also does not include regulations regarding the administration of Pacific Island countries,^[13] the recognition of overseas adoptions,^[14] the status or treatment of certain Commonwealth countries,^[15] the imposition of professional, consumer, environmental protection, or vehicle standards,^[16] the reciprocal enforcement of judgments,^[17] the designation of countries for the purposes of mutual assistance in criminal matters,^[18] the application of New Zealand law (with modifications) to international bodies or persons in the employ of international bodies,^[19] the restriction of the use of the names or emblems of international organisations,^[20] the registration of overseas maintenance orders,^[21] the protection of property of incapacitated persons in certain countries,^[22] the evidentiary status of overseas registries,^[23] the creation of alternative arrangements for overseas pensions,^[24] the establishment of scholarships to study overseas,^[25] and the application of certain extradition procedures,^[26] as these are not necessarily the result of, or required by, an international agreement. However, unlike the commencement and revocation orders, this group of regulations is included in the overall total of regulations. The master list is current as of 22 January 2008 and, barring the unexpected, is intended to be updated annually in subsequent editions of the Yearbook.

III. Some Observations regarding the Master List

Taken together, the master list for Acts and the master list for regulations offer practical guidance to those engaged in the law-making process, particularly to those who must assure ministers that legislative proposals are consistent with New Zealand’s international obligations. They also provide a means to assess the extent to which New Zealand’s domestic law is sourced from its international obligations. Observations based on the master list for Acts are recorded in the previous volume of the Yearbook. Observations based on the master list for regulations follow.

Excluding commencement orders, revocation orders, and deemed regulations (other than the rules governing the transport sector),^[27] New Zealand has 2,686 regulations (as at the end of 22 January 2008).^[28] The decade-by-decade distribution of these regulations, focusing on their initial enactment date, is as follows (C1):^[29]

The trend in C1 is an upward sloping curve (even with the inclusion, as here, of the data for the 2000s).^[30] It reflects the general practice of displacing older regulations with newer ones rather than a steady increase in the volume of regulations that are made. While the decade-by-decade volumes might be higher over the next 100 years, one would expect, given the curve in C1, that in the year 2163 (for example) the number of extant regulations enacted in the 2000s would be considerably less than the number of extant regulations enacted in the 2100s. The curve for regulations is also steeper than the curve for Acts,^[31] which reflects the comparatively perishable nature of regulations and the relative ease with which they may be removed from or added to the statute book.

Of the 2,686 regulations in existence, 192 (7.12%) are directly relevant to New Zealand’s compliance with international standards and obligations. Those regulations are set out in Part V. The decade-by-decade distribution of those 192 regulations, focusing on their initial enactment date, is as follows (C2):^[32]

The distribution depicted in C2 is in line with that in C1. As the greater concentration of extant regulations is found in the more recent decades, one would expect to find a greater number of regulations in those decades with relevance to international standards and obligations. Contributing factors would be New Zealand’s move to full independence in 1947 and the general worldwide growth in international activity in recent decades. The 2000s data, although two years short of a full decade, exceeds the 1990s in nominal terms.

The decade-by-decade distribution of the regulations set out in Part V as a percentage of the decade-by-decade distribution of regulations generally is as follows (C3):^[33]

Including the incomplete 2000s, the general trend since the 1910s is upward sloping. As noted above, 7.12% of extant regulations are directly relevant to New Zealand’s international standards or obligations. The 1930s and the 1950s exceed this figure, which appears to be a function of the relative permanence of regulations that implement international obligations compared with those that do not. While the 1960s and the 1970s are below the figure, they are likely to exceed it as non-implementing regulations from those decades are removed from the statute book. The 1980s and 1990s exceed the figure, while the incomplete 2000s do not (although the 2000s may exceed the figure in the decades to come as non-implementing regulations are revoked). Of course, these results depend on the criteria used for determining the relevance of a particular regulation. With respect to the regulations listed in Part V and depicted in C2 and C3, the overriding consideration for inclusion was whether or not the Executive made the regulation to give effect to a particular international instrument (or, in some cases, an aspect of a particular international instrument).

The decade-by-decade percentages depicted in C3 suggest that the 1980s were a particularly busy period for making regulations relevant to New Zealand’s international obligations, which also appears to be the case for Acts.^[34] However, unlike the data for Acts, the 1990s and 2000s data for regulations depicted in C2 shows that the nominal number of these kinds of regulations is greater than their nominal number in the 1980s.^[35] While the overall volume of legislation has an influence, the displacement of older regulations by newer ones also determines the resulting percentages (which should change over time). These factors appear to account for the peaks and troughs depicted in C3.

The total number of unique international instruments relevant to the regulations in Part V is 206. Of these instruments, 104 are multilateral, one is quadrilateral, one is trilateral, and 100 are bilateral. Of the multilateral instruments, 15 are resolutions of the Security Council authorised under article 41 of the Charter of the United Nations (1945), seven are codes authorised under maritime conventions, two are model regulations, and one is a set of technical instructions authorised under a civil aviation convention. Of the bilateral agreements, 76 concern double taxation, 13 deal with social security, five concern extradition, two involve closer economic relations, two concern fisheries, one deals with the security of military information, and one involves civil aviation. The decade-by-decade distribution of the instruments, focusing on the date that their text was settled,^[36] is as follows (C4):^[37]

The trend is moving upward steadily. If not direct evidence of the worldwide growth in international activity generally, the trend in C4 confirms New Zealand’s increasing acceptance of international standards and obligations that require legislation in order to be met effectively.^[38] The range of subjects covered by the international instruments listed in Part V is wide (ranging, for example, from pollution to taxation to diplomatic immunity to biosafety to civil aviation). The following 13 instruments have the most linkages to the regulations listed in Part V (T1):^[39]

International Instrument	Regs
Vienna Convention on Diplomatic Relations (1961)^‡	33
International Convention for the Prevention of Pollution from Ships (1973)^∆	18
Convention on International Civil Aviation (1944)^∆	12
ICAO Technical Standards for the Safe Transport of Dangerous Goods by Air^∆	9
International Convention for the Safety of Life at Sea (1974)^∆	8
Agreement between the Australian and New Zealand Governments on Mutual Recognition of Aviation-Related Certification (2007)^∆	6
Vienna Convention on Consular Relations (1963)^‡	4
IMO International Maritime Dangerous Goods Code^∆	4
United Nations Convention on Psychotropic Substances (1971)*	3
Convention on the Harmonized Commodity Description and Coding System (1983)^#	3
Convention on the Conservation of Antarctic Marine Living Resources (1980)^†	3
WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (1994)^#	3
Trans-Pacific Strategic Economic Partnership Agreement between Brunei Darussalam, Chile, New Zealand and Singapore (2005)^#	3

Six of the 13 international instruments set out in T1 deal with aspects of international transportation (^∆), including five of the first six. Three deal with trade (^#), two with diplomacy (^‡), one with illegal drugs (*), and one with the environment (^†). One of those international instruments is bilateral and one is quadrilateral. The rest are multilateral, and of those, two are in the form of a code and one is in the form of technical standards.

The decade-by-decade distribution of the Acts empowering the making of the regulations set out in Part V is as follows (C5):^[40]

The data shows an upward trend. It is consistent with the data for Acts, which shows that the number of Acts implementing international standards or obligations is increasing with each passing decade.^[41] The distribution in

C5 depicts 43 unique empowering Acts,^[42] of which nine are now repealed.^[43]

The following 15 Acts are (or were) the most frequently used Acts to make regulations implementing New Zealand’s international obligations (T2):

Empowering Acts	Regs
Income Tax Act 1976, s 294 (repealed)*	23
Civil Aviation Act 1990, ss 28, 29, 29A, 29B, 30, 100(1)(d)^∆	20
Diplomatic Privileges and Immunities Act 1968, ss 5(3), 9, 9A, 9AB, 10A, 10D, 10E^†	19
United Nations Act 1946, s 2	14
Diplomatic Immunities and Privileges Act 1957 (repealed)^†	14
Maritime Transport Act 1994, s 386^∆	12
Income Tax Act 1994, ss BH1, BB 11 (repealed)*	11
Social Welfare (Transitional Provisions) Act 1990, s 19	8
Tariff Act 1988, ss 7(5), 9, 10	7
Fisheries Act 1996, ss 113C, 297	5
Income Tax Act 2004, s BH 1*	5
Land and Income Tax Act 1954, s 172 (repealed)*	3
Extradition Act 1965, s 3 (repealed)	3
Patents Act 1953, ss 77, 114(1), 115	3
Consular Privileges and Immunities Act 1971, s 7^†	3

The regulations made under the various tax Acts (*) may be viewed as being made under a single Act, in which case the number of extant implementing regulations made under that Act is 42. The regulations made under the diplomacy Acts (^†) may also be viewed in this way, in which case the number of extant implementing regulations made under that Act is 36. The transport Acts listed above garner a total of 32 extant implementing regulations. The italicised Acts are of special interest because they contain overriding empowering provisions. Overriding empowering provisions can be divided into the following categories:^[44]

Category 1: The empowering provision, by implication, allows the making of regulations that override the provisions of any enactment. Section 204 of the Customs Laws Act 1908 and sections 5 and 10A of the Diplomatic Privileges and Immunities Act 1968 are known examples. No relevant regulations appear to be in force under the empowering provision of the Customs Laws Act 1908. Nineteen extant regulations came into force under the Diplomatic Privileges and Immunities Act 1968. Although the regulations are silent on the point, in the case of conflict between a provision in one of these regulations and a provision in any Act, the provision in the regulations would presumably prevail (one of the advantages of diplomatic immunity is a modicum of freedom from the application of certain laws).

Category 2: The empowering provision expressly allows the making of regulations that only override the provisions of the Act that contains the empowering provision. Sections 11, 12, 15 and 105 of the Extradition Act 1999, section 65 of the Mutual Assistance in Criminal Matters Act 1992, sections 4 and 19 of the Social Welfare (Transitional Provisions) Act 1990, and sections 9(4) and 30 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 are known examples. One relevant regulation appears have come into force under the Extradition Act 1999, while three came into force under section 3 of the Extradition Act 1965, which the 1999 Act has replaced. Section 3(3) of the 1965 Act provides a comparable override provision. Although not directly relevant,^[45] six regulations came into force under section 7 of the Mutual Assistance in Criminal Matters Act 1992. Eight regulations came into force under the Social Welfare (Transitional Provisions) Act 1990. These regulations give effect to certain bilateral social security agreements and provide that the provisions of the Act and the Social Security Act 1964 (and their regulations) have effect subject to those modifications that are required to give effect to the agreements. No regulations appear to be in force under the empowering provisions of the Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act 1977 (due in part to this Act being overtaken by subsequent legislation).

Category 3: The empowering provision expressly allows the making of regulations that override the provisions of any enactment. Section 215 of the Child Support Act 1991, section BH 1 of the Income Tax Act 1994, sections 4 and 5 of the International Energy Agreement Act 1976 and section 2 of the United Nations Act 1946 are known examples. One relevant regulation came into force under the Child Support Act 1991. It modifies several provisions of the Act to implement an agreement with Australia on child and spousal support. Although now repealed, 37 extant regulations came into force under the Income Tax Act 1994 and its predecessors. Presumably, in the case of a conflict between a provision in a bilateral tax agreement implemented by one of these regulations and a provision in any Act, the provision in the agreement would prevail. This does not appear to extend to five regulations made under section BH 1(4) of the Income Tax Act 2004, which prescribes the override more tightly. In the 2004 Act, the override is now expressly limited to the provisions of the Income Tax Act 2004, any other Inland Revenue Act, the Official Information Act 1982, and the Privacy Act 1993.^[46] Parliament has re-enacted this provision as section BH 1(4) of the Income Tax Act 2007, which comes into force on 1 April 2008. No relevant regulations appear to be in force under the empowering provision of the International Energy Agreement Act 1976. Fourteen relevant regulations came into force under the empowering provisions of the United Nations Act 1946. These regulations give effect to certain United Nations Security Council resolutions, as required under article 41 of the United Nations Charter (1945).

The regulations listed in Part V are made pursuant to empowering provisions that delegate responsibility for implementing the relevant international obligations to the Executive. A handful of the Acts containing these empowering provisions allow for the making of regulations that can override the empowering Act or any enactment. While recognising that their use may be warranted in special circumstances, the Regulations Review Committee considers this practice as being in conflict with ‘the fundamental constitutional principal that secondary legislation should not amend or override primary legislation’.^[47] In any case, all valid regulations must be made pursuant to empowering provisions in Acts that authorise their making. The judiciary may decline to enforce regulations that are not so authorised or are inconsistent with a provision found in an Act^[48] (unless authorisation permits otherwise). In the absence of an express prohibition, which is unlikely,^[49] the judiciary also appears able to decline the enforcement of regulations that are inconsistent with New Zealand’s international obligations.^[50]

IV. A Few Recommendations

According to the Cabinet Office Manual, proposed regulations should comply with the relevant international standards and obligations. Agencies should take steps to ensure that they are in a position to meet this requirement. To assist in this task, a master list of regulations that have implications for New Zealand’s international obligations is set out in Part V. Furthermore, as regulations that have implications for New Zealand’s international obligations are usually made under Acts that have implications for New Zealand’s international obligations, agencies should also know which of the Acts that they administer have these implications. A master list of these Acts is set out in ‘In Search of International Standards and Obligations relevant to New Zealand Acts’.^[51]

As with the master list for Acts, the master list for regulations is meant to serve as a tool for agencies to create agency-specific lists, not as a definitive, need-do-no-more, statement of the position. Owing to the ongoing nature of both the regulation-making and international agreement processes, the position is constantly changing. In addition, agencies may see value in building more detail into their lists and making their work publicly available. This may, in turn, inspire similar work by others and increase the likelihood that the government of the day will receive the advice that it needs to be sure that its proposed regulations comply with the relevant international standards and obligations. Once engaged in the process of creating or updating their lists, these agencies, given their expertise, should also be able to refine or augment the master list.^[52]

One way to begin this process is to follow the recommendations noted above for Acts. To reiterate these recommendations in terms of regulations, agencies should:

• Check and update the list of the regulations that they administer;

• Identify those regulations that concern New Zealand’s international obligations;

• Add value to their lists of identified regulations;

• Keep abreast of the Executive’s activities in the international arena that relate to their lists of identified regulations;

• Make their lists publicly available; and

• Update their lists regularly.

V. The Master List

A. Regulations Implementing New Zealand’s International Obligations

The regulations known to have implications for New Zealand’s international obligations are set out below. The regulations are listed in alphabetical order and in bold font. Each of the regulations is followed by an indication in italic font of the Act under which the regulations were made and a list in plain font of the international instruments relevant to those regulations. Many of the agreements are tagged with one or more of the following symbols:

* which means that the regulations contain an indication of the relevant international obligation;

# which means that the text of the agreement can be found in the Act under which the relevant regulations are made;

^ which means that the text of the agreement can be found in an Act other than the Act under which the relevant regulations are made;

$ which means that the text of the agreement can be found in the relevant regulations.

Adoption (Intercountry) Regulations 1998*

Adoption (Intercountry) Act 1997, s 24

Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993)^#

Arbitration (Foreign Agreements and Awards) Order 1983*

Arbitration (Foreign Agreements and Awards) Act 1982, s 12(1) (repealed)^[53]

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)^#^

Arbitration (Foreign Awards) Order 1977*

Arbitration Clauses (Protocol) and the Arbitration (Foreign Awards) Act 1933 (repealed)^[54]

Convention on the Execution for Foreign Arbitral Awards (1927)^#^

Carriage by Air (New Zealand Currency Equivalents) Notice (No 2) 1998*

Carriage by Air Act 1967, s 10(4) (repealed)^[55]

Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air (1929 as amended 1955, 1979)^#^

Guadalajara Convention, Supplementary to the Warsaw Convention (1961)^#^

Child Support (Reciprocal Agreement with Australia) Order 2000*

Child Support Act 1991, s 215

Agreement between New Zealand and Australia on Child and Spousal Maintenance (2000)^$

Civil Aviation (ANZA Mutual Recognition Agreement) Order 2007*

Civil Aviation Act 1990, s 100(1)(ed)

Agreement between the Australian and New Zealand Governments on Mutual Recognition of Aviation-Related Certification (2007)

Civil Aviation Rules: Part 1—Definitions and Abbreviations 2007*