NZTA Letter - Ralph Hume. The More Things Change the More They Stay The Same

I am sorry to read of the problems you are having with the Heavy Vehicle Code administrators, but the problem is not new. A word if I could, to help you through it. In my working life I have seen this problem from both sides of the table. I have been a Ministry of Transport engineer, drafting and administering legislation, standards and codes of practice.

I have nursed these through the regulatory system, and ultimately sat on the other side of the table as a certification engineer implementing them. I was the nominee of the old Transport Consultants Group sitting on the very first compliance rule drafting committee back in the late 90s. I gave the transport certifying game away for the very reasons outlined in your letter. It appears that not much has changed in the meantime.

These problems arise because people, at all levels of the regulatory stream, do not always understand the constitutional background behind rule-making, and consequently make mistakes in ignorance of the limits to the authorities that they hold. The term “ultra vires” covers the situation that you find yourself in. (This is a bit of Latin that translates out as “beyond the powers”). Even well-meaning people fall into its trap. A public servant sending you a letter that attempts to amend a regulation, or a standard or a code is almost certainly acting ultra vires, but may not be aware that he is doing so. Rest assured that no Government Agency “regulates” anything. The job of the public service is to administer law - period. Sure it has a role in advising the people who do make the law (Governments and Parliaments) just what options are available and what the likely outcomes of following those options might be, but the public service IS NOT the regulator. That is the job of the Government of the day, and even they cannot act in any given area without an express permission from Parliament to do so.

A superb study of ultra vires came up in my first year of public service. The Ministry of Transport had been recently established as a super ministry. It was an amalgamation of a number of previously independent Government Departments and also assumed a number of traffic control functions that had earlier been done at a local body level. Part of the amalgamation process was a check that everything that had been inherited in the amalgamation was ship-shape. That included the traffic by-laws of those local bodies. When these were put under the spot-light fully half of them were found to be ultra vires, and not just under the new laws governing the amalgamation but under the prior ones as well.

By-laws can be made without recourse back to a Minister or to Parliament, and over the years things had got a trifle slack.

So how does this help you? By the time we work our way down to the “Rules” level of the regulatory hierarchy it is possible for things to get similarly slack. So a look at that hierarchy is in order.

Firstly, no regulation of any sort is possible outside of an instruction from Parliament, to the Government of the Day, to regulate in a particular area. These instructions are contained in Acts of Parliament.

These tend to be general in nature and, as well as issuing instructions to all of us citizens, also empower the Government of the day to fill in the mundane details. Acts are signed out by the Governor General on behalf of the Queen. This process is called “Royal Assent”. Acts of Parliament can only be changed by another Act and another Royal Assent.

Strictly speaking if you are carrying out a function directly under an Act of Parliament, not a very likely scenario for a humble certifier, then only the Governor General, on behalf of the Queen, can direct you on how to carry out that function.

Governments carry out their delegated tasks by the use of regulations but this is not a free hand. No regulation can contradict anything in the Act that empowered the regulation in the first place, and nothing can be included in a regulation that is not countenanced in the Act itself. Regulations are signed out by the Governor General in a process called “Orders in Council”. Regulations are discussed and approved by Cabinet prior to presentation to the GG, who essentially takes the advice of his/her Ministers when signing the order. Only a further Order in Council signed out by the GG can amend a set of regulations.

In the case of vehicle certification rules the regulations set out the broad