3.15The Commission considers that if there is to be a consolidated Courts Act, then the rules relating to each of the courts included in that Act should be treated in a similar manner, to ensure maximum clarity and accessibility for court users. In the Commission’s view, a consolidated Courts Act would be too unwieldy if it contained the rules of each of the courts in schedules. Instead, rules of court should be made in accordance with the current processes provided for in the Judicature Act 1908 and the District Courts Act 1947, and they should all be regulations.
3.16In order to minimise any real or perceived risk concerning the vires of the present High Court Rules, in addition to providing a mechanism for the making of rules relating to practice and procedure, the Commission considers the statute should specifically enable the making of rules relating to:
3.17Another way of achieving this, suggested by one submitter, would be to define “practice and procedure” as including matters that have been identified as potentially problematic. We have concerns that this would give an unnatural meaning to the phrase “practice and procedure”, but ultimately the drafting device should depend on the style adopted by the Parliamentary Counsel drafting the entire Bill, so as to ensure its overall consistency.
3.18Although it submitted that it does not consider there are any vires issues, the Rules Committee should be consulted on whether any other rule-making powers should be specifically provided for in the primary legislation.
3.19Given the special processes already in place for the making of rules of court, the Commission considered whether the rules should be excluded by statute from the ambit of the regulations disallowance regime. However, in light of our recommendations that legislation should enable the making of rules regarding matters that go beyond court practice and procedure, we do not recommend this. It is appropriate that members of the public have the opportunity to be heard in relation to matters that affect their substantive rights, and we would expect the Regulations Review Committee to take a cautious approach if considering any rules of court.