Human rights: regulatory instruments and enforcement

  • Dean Knight and Rayner Thwaites “Administrative Law through a Regulatory Lens: Situating Judicial Adjudication within a Wider Accountability Framework” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). In this chapter the authors note that regulation is primarily concerned with the achievement of a social end; while administrative law performs the secondary role of examining how the means to this end are carried out. This chapter utilises a framework to provide greater clarity to the purposes and modes of accountability in administrative law, in particular judicial adjudication, vis-à-vis regulatory developments. the authors frame accountability as havign three purposes: constitutional, democratic and learning. The chapter evaluates each purpose against the three criteria of the accountability relationship: (1) whether the decision maker has informed the concerned forum of his or her conduct; (2) whether there has been an opportunity to debate the decision maker’s conduct; and (3) whether the affected forum or a third party can pass judgment on the decision maker’s actions and present him or her with consequences. These accountability purposes are illustrated through an application to the New Zealand Court of Appeal decision of Lab Tests and to the Regulatory Standards Bill 2011.

  • See also Dean Knight and Rayner Thwaites “Review and Appeal of Regulatory Decisions: The Tension between Supervision and Performance” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).

  • See also Petra Butler “Rights and Regulation” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).

  • Petra Butler “When is an Act of Parliament an Appropriate Form of Regulation?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). Why an Act of Parliament, rather than regulation from the Executive, should determine the scope of the impact of regulation on human rights, is analysed in this paper. The author uses a comparison between German and New Zealand law to highlight that the intensity of the infringement on human rights that is the pivotal point in this regulatory decision. German Law was chosen as a comparison because there much jurisprudence and academic analysis has been dedicated to deciding when an Act of Parliament is an appropriate form of legislation. The paper puts forward four principles called a ‘threshold test’ as a means to help identify whether to regulate with an Act of Parliament or not. The author uses the regulation of the Internet, because of its wide spread effects on society, as an example to test this threshold.. The example assesses the significance of an infringement, the discretion for Parliament to widen the powers of the executive, the scope of subsidies and benefits in relation to budgets and the powers of any autonomous government body in relation to regulatory issues of the Internet. The author concludes that the application of the threshold to the Internet does highlight the need for an Act of Parliament when regulating in ways that infringe human rights.

Property and regulatory takings

  • Richard P Boast and Susy Frankel “Defining the Ambit of Regulatory Takings” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). This paper analyses the scope of property rights and the ambit of so –called regulatory takings; that is if owners’ should be compensated, or not, when regulation effects their property. The paper discusses how investment assets are protected as a kind of property through trade and investment agreements and contrasts that with protection of property at domestic law. The paper frames what property rights are protected in New Zealand, why there is not a regulatory takings regime and whether in assessing if there should be a regulatory takings regime whether there should equally be a regulatory givings regime. The paper discusses the property impairment regime that was proposed in the Regulatory Standards Bill 2011 and the later Treasury Option 5 approach that proposes the use of explanatory notes for Parliament to disclose any matter affecting property rights action. The paper discusses where the line should be drawn between what does and what does not amount to a regulatory taking using examples relating to public health, environmental regulation and resource expropriation.

  • Richard P Boast and Susy Frankel “Defining the Ambit of Regulatory Takings” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). While New Zealand law probably would benefit from better clarification of the limits of acceptable regulation of property rights, how significant a problem is this either in actuality, or (what is not quite the same thing) public perception? If New Zealanders are, on the whole, more tolerant of public controls than people in other countries, then that of itself is relevant to forming an opinion on the scale of the problem. Answering that question requires a great deal of empirical research. Environmental and resource management are one of, if not the most, significant areas for this research and so we analyse the issues raised in that area in this chapter.

  • Richard P Boast and Susy Frankel “Defining the Ambit of Regulatory Takings” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). In this chapter we address some key issues about property and what amounts to regulatory takings. This analysis will give guidance, not only to what is an actionable taking;[31] but also what we suggest should or should not be an actionable taking under New Zealand law. This discussion is also potentially relevant to parliamentary consideration of the effect of regulation and discussion of those issues in explanatory notes. In order to evaluate what is, or might be, a regulatory taking in New Zealand, some key questions need to be addressed. Those questions are broadly: (1) Where do we draw the line to determine what constitutes a taking and what does not? (This includes what is a taking and what is an impairment.) (2) If compensation was given for takings, who might be compensated and why? (3) What is the relationship between regulatory takings and investment? (4) Are regulatory takings all the same? Should takings all be treated the same? What factors mean that loss of value ought to be compensated or that the effect on property ought to be given weight by Parliament? (5) The effects of constitutional protection of Māori collective property rights by: (a) the Treaty of Waitangi of 1840 and legislation giving effect to its principles (such as section 8 of the Crown Minerals Act 1991); and (b) under common law rules (that is, Native Title law).

  • Richard Boast and Neil Quigley “Regulatory Reform and Property Rights in New Zealand” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011). New Zealand has settled into a distinctive pattern when it comes to property rights in land, in which the state has played a very large role by setting up state-guaranteed systems of title and by the nationalisation of key mineral and energy resource now administered by a various kinds of licensing systems principally controlled by the Resource Management and Crown Minerals Acts. There seems little support for these basic structures to be disturbed.

  • See also Russell Brown “Possibilities and Pitfalls of Comparative Analysis of Property Rights Protections, and the Canadian Regime of Legal Protection Against Takings” in Susy Frankel (ed) Learning from the Past Adapting to the Future: Regulatory Reform in New Zealand (LexisNexis, 2011).

  • Daniel Kalderimis “Regulating Foreign Direct Investment in New Zealand –Further Analysis” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). The land debate is accordingly a roadblock which would ideally be either defused or confronted. Strategies to defuse it involve reframing the debate over foreign ownership of farmland into a debate over land aggregation rules and ways to transition into an era of corporate farm ownership. Strategies to confront it might, at one extreme, involve solutions akin to the Marine and Coastal Area (Takutai Moana) Act 2011 – that is, the use of legal symbolism to remove issues of land ownership from the political realm. This chapter has raised two ways in which this could be done. These involve choices over whether or not New Zealand should apply the OIA NBT to foreign investment in the economic rents from New Zealand land, even where there is no purchase of the land itself.