Human rights: regulatory instruments and enforcement
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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.
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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).
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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).
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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.