How To Make Bad Law

The cutting of Regulatory Impact Statements is a very serious weakening of holding lawmakers and decision makers to account.

A Treasury paper obtained by the NZHerald (ie leaked) said that the government had suspended Regulatory Impact Analyses for roll-back proposals in its 100-day plan. It is reported that Cabinet agreed that proposals that “solely repeal legislation” and “not seeking approval for new policy” will have the requirement for a Regulatory Impact Statement (commonly a RIS) “suspended”.

So what are these things?

A regulatory impact statement (RIS) is a government agency document that summarises an agency’s best advice to its Minister and Cabinet about a law proposal include: what the problem you’re trying to solve, the strongest options including do nothing, how much each one will cost, what the outcomes of each one will be including how practical enforcing it really it is, and how much of your actual policy outcome you’re going to get from the law change with your preferred option.

So for example a big change to gambling regulations means you get a RIS from the Department of Internal Affairs about the consequences to this proposed law. Cabinet gets to see these facts and policy consequences. Before a bill is introduced into Parliament, the RIS generates a baseline of facts and policy intent.

It’s not the only set of information that our parliamentary lawmakers get. There’s summaries of most of the policy problems and high level summaries of new legislative options often found in the Briefing to Incoming Ministers.

For example sometimes the Law Commission gets involved to go into real depth about a legislative topic.

Or there’s special studies like Ministerial Inquiries, Commissions of Inquiry, Royal Commissions and the like, which give pretty firm recommendations on changing legislation. Or just simple Cabinet papers and Cabinet minutes. Or a mad scramble like an SOP – and that’s almost always going to make crap legislation.

There’s other bits of advice-machinery going on including the legislative drafters inside the Parliamentary Counsel’s Office, DPMC, and others. So the absence of a RIS isn’t a death-knell to democracy. If you’re really lucky there’s big brains come in and submit after the first reading so that there’s a really robust Parliamentary Select Committee on a bit of legislation. You can see a whole history of one of these processes here.

But stopping a RIS is pretty important, because it summarises intent.

So when a law is passed and regulations are promulgated, and you do something stupid, and you appear before a judge, well the judge has to make sense of what is written in the law in an open book of that law together with the tariffs for punishment beside them.

And you’re convicted by that judge.

But you ain’t buying their bullshit. So you challenge it and it goes to a higher court. High Court or Appeal Court. And it’s your ass on the line so you are motivated to fight. This is where a RIS is really handy for a judge.

Because then your lawyer gets to show a judge: judge, this proposed punishment is way out of whack with what was actually intended. This is the policy they started off with, this is the regulatory option they chose as government, and this then is how that intent is expressed in the draft law and the final law. And that is just a long way from how you the defendant got put up in the dock.

So judge, the RIS shows that the intent of what Parliament voted on is simply completely wrong for this proposed punishment. So our appeal against conviction should stand. That’s a pretty powerful start to a submission to get your ass free. And frankly that is a damn big thing for any citizen in a free society. Remember what happened to all those people who got fired about COVID regulations, and then got their convictions overturned? Legislative intent.

Now, of course, 90% of New Zealanders have nothing to do with the law and never will barring a parking ticket or speeding fine. And yes there are lawyers who specialise just in getting you off traffic infringements. But law is about control and regulation of a free society. So at the very pointy end of a court proceeding, intent of a law is really important to your freedom.

Without a RIS , a judge or just a citizen contemplating doing something has a lot more figuring out to get to the intent of law. Everyone will likely to have to do a lot more Official Information Act requests to figure out whether a law is actually supported with facts. Much higher risk of bad law and bad unintended consequences.

A RIS also has a strong stabilising function in government. Ministries and Agencies don’t always agree. Police don’t always agree with Crown Law on drafting or prosecutions. MBIE’s Energy team don’t always agree with the Electricity Authority. Or Department of Conservation and Ministry for Environment.  Or Treasury and DPMC and MBIE on whole swathes of stuff. In fact the policy-service provider split sets up pretty much permanent tension.

So a Regulatory Impact Statement forces operational agencies and policy wonks in ministries actually have to agree in one text with one pen that there is a specific legislative proposal with a specific set of effects that are reasonable, enforceable, and will likely achieve the stated policy outcome sought. Sometimes heads must be banged together. That’s a RIS.

Without a RIS, there’s a much higher tension and risk that a ministry will just strongly downplay the operational consequences of proposed law and just crack on with what the Minister wants. Again, much higher risk of bad law and bad unintended consequences.

So does anyone understand the consequences of suspending the RIS for the revoking of the refreshed Resource Management Act replacement?

Does anyone, while the repeal is underway, understand the consequences of repealing the repeal of the “Three Strikes” law?

Does anyone understand the consequences of removing all the funding Auckland was getting from the Regional Fuel Tax?

Does anyone understand the removal of the Reserve Bank’s mandate to stabilise both inflation and unemployment?

There’s sure no public sector analysis of it that will inform lawmakers or media or civil society before it’s all passed into new law that is enforced.

It’s quite possible civil society groups and public law teams inside law firms will have a go at it, and a couple of heads inside Labour and Green teams, and sure there will be policy teams within ministries who can figure it out.

But there won’t be one clear integrated and published statement from the public service that we can all read and say, when the law is done and in operation: told you so. These were the facts. These were the projections. This was going to happen.

That’s what we will miss because the RIS’s are cut.

That goes a long way to making bad law.