Rules of court
Issues Paper proposals
3.5In Issues Paper 29, the Commission proposed that a Courts Act should contain provisions enabling the Governor-General, by Order in Council, to make rules regulating the practice and procedure of each of the courts, and for these to be published as regulations. This differs from the status quo, whereby the District Courts, Court of Appeal and Supreme Court Rules are published as regulations, but the High Court Rules are included as an appendix to the 1908 Act (even though that Act also allows the High Court Rules to be published separately as if they were regulations).
3.6The Commission did not propose any changes to the current provisions that specify the persons who must agree to the making of any such rules before Orders in Council can be made, or to provisions concerning the role and composition of the Rules Committee. Thus, under the Commission’s proposals the Governor-General in Council would continue to have the power to make rules for the Senior Courts only with the concurrence of the Chief Justice and any two or more members of the Rules Committee, of whom at least one must be a judge. For the District Courts, Orders in Council would continue to be made only with the concurrence of the Chief District Court Judge and two or more members of the Rules Committee, of whom at least one must be a District Court Judge. Some submission comments suggested this may not have been clear to all readers.
3.7The Commission explained in Issues Paper 29 that the reason the High Court Rules have been enacted as a schedule to the 1908 Act is because some of the Rules arguably go beyond regulating “practice and procedure”, and we outlined options for ensuring the vires of the existing High Court Rules if they are no longer included in the statute itself.
3.8We said we did not favour including a broad empowering provision in the statute enabling the making of rules relating to more than just practice and procedure, as this would not adequately define the rule-making power, and sought views on the following three options:
- Setting out specific rules in legislation (as the District Courts Act 1947 currently does);
- Having a statutory provision enabling the making of rules relating to any matters that currently cause concern, in addition to matters of practice and procedure; or
- Including a provision in a new Courts Bill that deems the existing High Court Rules to be validly made under the new statute, and enabling the making of new rules regulating practice and procedure.