Sep 30, 2008

Regulations Review Committee Upholds Complaint

Great news, but what a shame that the report was not issued before Parliament wound up. The Overseas Investment Amendment Regulations (2008) have been found by the committee to be:

an unusual and unexpected use of the regulation-making power. The regulations also contain matters thatcan be argued to be more appropriate for parliamentary enactment.

We note that the AIAL decision has already been made and that any action taken in respect
of the regulations will have no impact on that decision. Nevertheless the regulations are of
general application and we think that the issues raised by the complainants in respect of the
application of the Act to strategically important infrastructure should be considered by the

We have also noted our concern regarding section 17(2)(g). The proliferation of regulationmakingclauses such as this is troubling, and we recommend against their use. Section 17(2)is a form of Henry VIII clause. Such clauses should be used only where urgent need to add to statutory decision making criteria is envisaged. In such circumstances the regulationmaking power should be used in conjunction with satisfactory safeguards to ensure a transparent and open legislative process is followed.