The regulatory responsibility bill and the constitution

Abstract

The Regulatory Responsibility Taskforce has recommended that Parliament enact its proposed Regulatory Responsibility Bill. The bill aims to rule out certain statutes and regulations as ‘unconstitutional’ by specifying principles of responsible regulation and by introducing three mechanisms – certification, judicial declarations of incompatibility and interpretation – to ensure that legislation conforms to those principles. I argue that the bill itself is unconstitutional: Parliament should not enact it. Many of the principles are contentious and affirming them would distort law making and democratic politics. Authorising judges to police conformity compounds the problem. The content of the principles is likely to be settled by judicial decision, which means Parliament will face improper political pressure to do as the courts direct and the validity of much delegated legislation will be called into question.