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

Classic Driver - - LETTERS -

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

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