3.9The Rules Committee’s submission disagreed that the High Court Rules should be statutory regulations, and expressed concern that “[r]elegation to the status of regulations would, amongst other things, bring them within the jurisdiction of the Regulations Review Committee, whereby Parliamentarians may examine the merits of the High Court Rules and investigate complaints from the public as to their operation.” The Rules Committee also expressed the view that the High Court is the key senior court with original jurisdiction, and it is appropriate that its rules have the status of a schedule to an Act to clarify the extent of its power to make rules. We do not think this follows if the rule-making procedures are to continue unaltered in substance.
3.10With regard to the vires issue, the Rules Committee submitted that it believes all the existing High Court Rules are validly made. It did not support the option of including a provision in a new Courts Act that deems the existing High Court Rules to be validly made. This was largely because the Committee considered it would be an unusual use of Parliamentary procedure to make legislation deeming all the High Court Rules valid in the absence of a judicial declaration of invalidity, or any evidence of widespread concern. It also noted that there will inevitably need to be subsequent amendments, which would create two classes of rules, “the majority having the benefit of deemed validity, while a few (those created subsequently) would be theoretically challengeable on vires grounds.”
3.11The Committee further submitted that existing uncertainties could be drastically reduced, although not completely eliminated, by including a statutory power for the making of rules that:
3.12The Senior Courts’ judges said they agreed with the submission made by the Rules Committee.
3.13The New Zealand Law Society submitted that it has no strong view in relation to how the High Court Rules should be treated in legislation, and commented that it would be undesirable to lose any of the flexibility that is currently provided by having the Rules Committee as the rule-making body. The Law Society said rules that go beyond matters of practice and procedure ought to be subject to ordinary legislative processes with the necessary checks and balances. It also said it was generally supportive of the Rules Committee’s submission.
3.14The New Zealand Bar Association submitted that the enactment of the Rules of the High Court as a schedule to the 1908 Act is not so problematic as to require change, and suggested the rules of the District Courts and all Senior Courts be included as a schedule in any new courts legislation.