Petra Butler

The question this paper addresses is whether policy makers are free to choose the form of regulation they use, or whether an Act of Parliament is the appropriate regulatory tool where regulation impacts human rights. This key question is first discussed in and then the author then applied in a discussion about internet regulation.

A comparative study between German and New Zealand approaches to this issue is made as German academia and jurisprudence have dedicated extensive scholarship on defining the threshold of when a matter should be regulated by an Act of Parliament. German law has developed a doctrine to find the dividing line when between when Parliament and when the executive should regulate by looking to the intensity of the infringement that the proposed measure would have on human rights. It is not a hard and fast rule but rather does provide a framework whereby it can signal the appropriate body to regulate in particular circumstances.

The author identifies in the New Zealand context a number of cornerstones of the law including the royal prerogative and the nature of Parliamentary democracy which require that the legitimacy of executive power derives from Parliament; the role of the Executive is to plug the regulatory gaps left by Parliament; regulations must be compliant with the NZ Bill of Rights Act 1990, and principle and policy are for Parliament whereas implementation is for the Executive. The author identifies that in Hamed, the Supreme Court created a threshold for where a matter has to be regulated by an Act of Parliament. That threshold being where to do otherwise would result in a subversion of the scheme of the Bill of Rights Act and of the right in question. Taking these cornerstones into account, the author identifies the following principles to bear in mind when deciding whether to regulate a matter in an Act of Parliament or through other regulation:

(1) A matter that so significantly infringes a right in the Bill of Rights Act 1990 that it subverts the scheme of the Bill of Rights Act has to be regulated by an Act of Parliament

(2) A matter that significantly infringes a right should be regulated by an Act of Parliament. However, Parliament can, in certain circumstances, give wider discretion to the Executive.

(3) The subject, content, purpose and scope of subsidies and benefits have to be at least tied to a budget.

(4) The powers of any autonomous Government body need to be carefully circumscribed by an Act of Parliament.

These principles are then applied to the issue of internet regulation.

Internet regulation is considered in the context of section 14 in the Bill of Rights Act, which includes the right to impart, receive and seek information. One area discussed is the proposed ability of the Communications Tribunal to regulate the behaviour of third parties (like Internet Service Providers) for the offensive content created by users. In such a situation the author argues that the right of free speech would need to be balanced against the rights of individuals not to receive harmful communications. Regulation of such a balancing issue  involves  the Bill of Rights Act and requires Parliament’s democratic mandate to determine which right should prevail and when.

In discussing (2), the author considers the argument that the Executive should be given more discretion to regulate the Internet on the basis that it is a highly technical industry. The author concludes that it would be inappropriate to give the Executive discretion where regulation infringes on the freedom of expression as it is a right fundamental to the functioning of New Zealand’s democracy.

Concerning (3), the author says that at the point where Internet services become so crucial that they require direct Government subsidy, then such a subsidy becomes an essential element of the regulation of the right to access the Internet. When this happens, the subsidy should be regulated by an Act, such as the annual budget, to ensure democratic robustness.

In analysing (4), the discusses how Internet lobbies like Internet NZ, a self-regulating autonomous body, should have its mandate conferred by an act of Parliament if that body fulfils any task in regard to the regulation of the Internet.

The author concludes that this application of principles to the framework of Internet regulation shows that the Executive should not determine the scope of the impact of regulation on human rights. Parliament should be responsible for regulation that involves breaches of rights as it is mandated to arbitrate the balancing of different interests.