How To Make Bad Law

Written By: - Date published: 12:36 pm, December 11th, 2023 - 15 comments
Categories: act, national, nz first, Parliament, parliamentary spending - Tags:

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.

15 comments on “How To Make Bad Law ”

  1. Darien Fenton 1

    "PM says Treasury economic impact statements on RMA, Three Waters and RBNZ repeals would be a "waste of time", preparing documents "no one is reading". Such arrogance.

    • Ad 1.1

      Those mayors who joined together to oppose the reforms might well need to pick up the phone and call their mayoral colleagues about amalgamating water entities for driving efficiency…

      … something remarkably similar to that which they opposed.

      I could be wrong.

      • Tricledrown 1.1.1

        All the local bodies with big debt and usually massive infrastructure debt would have been able to get funding through 3 water's now no replacement so many local bodies have no where to go.Auckland has aging and needs much more infrastructure than it can afford.So it will be kicked down the road for many years to come. Air New Zealand would never let's its planes get to old or run down yet Luxon will let most govt services go short on funding so he can bribe some NZers with meager tax cuts.While Australia will take more and more NZers who can get $20 an hr more than NZers that gap will widen rapidly Under the coalition of Koas lead by bell end.

    • dv 1.2

      Apparently there are some millions of dollars in redundancy pay outs in the 3waters doc.

      Govt didn't know?

      Didn't they read what they were dumping!!!!

      O DUH

    • SPC 1.3

      Someone is offering advice to the new Workplace Minister and then the media. So we can read it.

      The PM seems to be averse to informed comment on the impact of his own government policy – is this all a coded message to those who want to retain their jobs in the public government service?

      Then again a signal of not placing importance on such advice might mean a reduced capacity in the public service to proffer comment, with instead a focus on front line services?

  2. The people who voted for this lot assumed that it would just be a change of management, but clearly National (& the NAF coalition) is not Labour-lite (or vice versa). It's a complete reversal of direction for the country

    Met a senior public servant , apparently national govt are idiots who have no idea how govt actually functions or how the law works. Nicolla Willis is an economically illiterate moron, and the public service are spending much time explaining how things [work] to idiots.— QuinnjinWilliams (@quinnjin2009) December 10, 2023

  3. ianmac 3

    Thanks Ad. A clear credible study on pros and cons. It seems even more surprising that Luxon doesn't seem able to see the consequences of his actions. Perhaps his god is guiding him?

  4. Rodel 4

    Easy to see how dictatorships are saeeded.

  5. adam 5

    Once again we get to see that being an ideological fuck is not just a left wing problem.

  6. Sandra Le Cron 6

    [deleted]

    [Thank you for confirming that you’re a troll bot. TTFN – Incognito]

Recent Comments

Recent Posts

  • Speech to the 2024 Infrastructure Symposium
    Introduction Good morning. It’s a great privilege to be here at the 2024 Infrastructure Symposium. I was extremely happy when the Prime Minister asked me to be his Minister for Infrastructure. It is one of the great barriers holding the New Zealand economy back from achieving its potential. Building high ...
    BeehiveBy beehive.govt.nz
    11 hours ago
  • $571 million for Defence pay and projects
    Defence Minister Judith Collins today announced the upcoming Budget will include new funding of $571 million for Defence Force pay and projects. “Our servicemen and women do New Zealand proud throughout the world and this funding will help ensure we retain their services and expertise as we navigate an increasingly ...
    BeehiveBy beehive.govt.nz
    16 hours ago
  • Climate change – mitigating the risks and costs
    New Zealand’s ability to cope with climate change will be strengthened as part of the Government’s focus to build resilience as we rebuild the economy, Climate Change Minister Simon Watts says. “An enduring and long-term approach is needed to provide New Zealanders and the economy with certainty as the climate ...
    BeehiveBy beehive.govt.nz
    16 hours ago
  • Getting new job seekers on the pathway to work
    Jobseeker beneficiaries who have work obligations must now meet with MSD within two weeks of their benefit starting to determine their next step towards finding a job, Social Development and Employment Minister Louise Upston says. “A key part of the coalition Government’s plan to have 50,000 fewer people on Jobseeker ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Accelerating Social Investment
    A new standalone Social Investment Agency will power-up the social investment approach, driving positive change for our most vulnerable New Zealanders, Social Investment Minister Nicola Willis says.  “Despite the Government currently investing more than $70 billion every year into social services, we are not seeing the outcomes we want for ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Getting Back on Track
    Check against delivery Good morning. It is a pleasure to be with you to outline the Coalition Government’s approach to our first Budget. Thank you Mark Skelly, President of the Hutt Valley Chamber of Commerce, together with  your Board and team, for hosting me.   I’d like to acknowledge His Worship ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • NZ – European Union ties more critical than ever
    Your Excellency Ambassador Meredith,   Members of the Diplomatic Corps and Ambassadors from European Union Member States,   Ministerial colleagues, Members of Parliament, and other distinguished guests, Thank you everyone for joining us.   Ladies and gentlemen -    In diplomacy, we often speak of ‘close’ and ‘long-standing’ relations.   ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Therapeutic Products Act to be repealed
    The Therapeutic Products Act (TPA) will be repealed this year so that a better regime can be put in place to provide New Zealanders safe and timely access to medicines, medical devices and health products, Associate Health Minister Casey Costello announced today. “The medicines and products we are talking about ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Decisions on Wellington City Council’s District Plan
    The Minister Responsible for RMA Reform, Chris Bishop, today released his decision on twenty recommendations referred to him by the Wellington City Council relating to its Intensification Planning Instrument, after the Council rejected those recommendations of the Independent Hearings Panel and made alternative recommendations. “Wellington notified its District Plan on ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Rape Awareness Week: Government committed to action on sexual violence
    Rape Awareness Week (6-10 May) is an important opportunity to acknowledge the continued effort required by government and communities to ensure that all New Zealanders can live free from violence, say Ministers Karen Chhour and Louise Upston.  “With 1 in 3 women and 1 in 8 men experiencing sexual violence ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Smarter lunch programme feeds more, costs less
    Associate Education Minister David Seymour has today announced that the Government will be delivering a more efficient Healthy School Lunches Programme, saving taxpayers approximately $107 million a year compared to how Labour funded it, by embracing innovation and commercial expertise. “We are delivering on our commitment to treat taxpayers’ money ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Report provides insights into marine recovery
    New research on the impacts of extreme weather on coastal marine habitats in Tairāwhiti and Hawke’s Bay will help fishery managers plan for and respond to any future events, Oceans and Fisheries Minister Shane Jones says. A report released today on research by Niwa on behalf of Fisheries New Zealand ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • NZ to send political delegation to the Pacific
    Deputy Prime Minister and Foreign Minister Winston Peters will lead a broad political delegation on a five-stop Pacific tour next week to strengthen New Zealand’s engagement with the region.   The delegation will visit Solomon Islands, Papua New Guinea, Vanuatu, New Caledonia, and Tuvalu.    “New Zealand has deep and ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Low gas production threatens energy security
    There has been a material decline in gas production according to figures released today by the Gas Industry Co.  Figures released by the Gas Industry Company show that there was a 12.5 per cent reduction in gas production during 2023, and a 27.8 per cent reduction in gas production in the ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Defence industry talent, commitment recognised
    Defence Minister Judith Collins tonight announced the recipients of the Minister of Defence Awards of Excellence for Industry, saying they all contribute to New Zealanders’ security and wellbeing. “Congratulations to this year’s recipients, whose innovative products and services play a critical role in the delivery of New Zealand’s defence capabilities, ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Speech to the Minister of Defence Awards of Excellence for Industry
    Welcome to you all - it is a pleasure to be here this evening.I would like to start by thanking Greg Lowe, Chair of the New Zealand Defence Industry Advisory Council, for co-hosting this reception with me. This evening is about recognising businesses from across New Zealand and overseas who in ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Speech to the Sixth Annual New Zealand Government Data Summit
    It is a pleasure to be speaking to you as the Minister for Digitising Government.  I would like to thank Akolade for the invitation to address this Summit, and to acknowledge the great effort you are making to grow New Zealand’s digital future. Today, we stand at the cusp of ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Ceasefire agreement needed now: Peters
    New Zealand is urging both Israel and Hamas to agree to an immediate ceasefire to avoid the further humanitarian catastrophe that military action in Rafah would unleash, Foreign Minister Winston Peters says.   “The immense suffering in Gaza cannot be allowed to worsen further. Both sides have a responsibility to ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Daily school attendance data now available
    A new online data dashboard released today as part of the Government’s school attendance action plan makes more timely daily attendance data available to the public and parents, says Associate Education Minister David Seymour.  The interactive dashboard will be updated once a week to show a national average of how ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Ambassador to United States appointed
    Foreign Minister Winston Peters has announced Rosemary Banks will be New Zealand’s next Ambassador to the United States of America.    “Our relationship with the United States is crucial for New Zealand in strategic, security and economic terms,” Mr Peters says.    “New Zealand and the United States have a ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • New permit proposed for recreational gold mining
    The Government is considering creating a new tier of minerals permitting that will make it easier for hobby miners to prospect for gold. “New Zealand was built on gold, it’s in our DNA. Our gold deposits, particularly in regions such as Otago and the West Coast have always attracted fortune-hunters. ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • NZ and the UAE launch FTA negotiations
    Minister for Trade Todd McClay today announced that New Zealand and the United Arab Emirates (UAE) will commence negotiations on a free trade agreement (FTA). Minister McClay met with his counterpart UAE Trade Minister Dr Thani bin Ahmed Al Zeyoudi in Dubai, where they announced the launch of negotiations on a ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • New Zealand Sign Language Week an opportunity for anyone to sign
    New Zealand Sign Language Week is an excellent opportunity for all Kiwis to give the language a go, Disabilities Issues Minister Louise Upston says. This week (May 6 to 12) is New Zealand Sign Language (NZSL) Week. The theme is “an Aotearoa where anyone can sign anywhere” and aims to ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Next stop NASA for New Zealand students
    Six tertiary students have been selected to work on NASA projects in the US through a New Zealand Space Scholarship, Space Minister Judith Collins announced today. “This is a fantastic opportunity for these talented students. They will undertake internships at NASA’s Ames Research Center or its Jet Propulsion Laboratory (JPL), where ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • $1.9 billion investment to keep NZ safe from crime
    New Zealanders will be safer because of a $1.9 billion investment in more frontline Corrections officers, more support for offenders to turn away from crime, and more prison capacity, Corrections Minister Mark Mitchell says. “Our Government said we would crack down on crime. We promised to restore law and order, ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • OECD reinforces need to control spending
    The OECD’s latest report on New Zealand reinforces the importance of bringing Government spending under control, Finance Minister Nicola Willis says. The OECD conducts country surveys every two years to review its members’ economic policies. The 2024 New Zealand survey was presented in Wellington today by OECD Chief Economist Clare Lombardelli.   ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Agreement delivers Local Water Done Well for Auckland
    The Government has delivered on its election promise to provide a financially sustainable model for Auckland under its Local Water Done Well plan. The plan, which has been unanimously endorsed by Auckland Council’s Governing Body, will see Aucklanders avoid the previously projected 25.8 per cent water rates increases while retaining ...
    BeehiveBy beehive.govt.nz
    6 days ago
  • Gaza and the Pacific on the agenda with Germany
    Foreign Minister Winston Peters discussed the need for an immediate ceasefire in Gaza, and enhanced cooperation in the Pacific with German Foreign Minister Annalena Baerbock during her first official visit to New Zealand today.    "New Zealand and Germany enjoy shared interests and values, including the rule of law, democracy, respect for the international system ...
    BeehiveBy beehive.govt.nz
    7 days ago
  • Decision allows for housing growth in Western Bay of Plenty
    The Minister Responsible for RMA Reform, Chris Bishop today released his decision on four recommendations referred to him by the Western Bay of Plenty District Council, opening the door to housing growth in the area. The Council’s Plan Change 92 allows more homes to be built in existing and new ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Speech to New Zealand China Council
    Thank you, John McKinnon and the New Zealand China Council for the invitation to speak to you today.    Thank you too, all members of the China Council. Your effort has played an essential role in helping to build, shape, and grow a balanced and resilient relationship between our two ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Modern insurance law will protect Kiwi households
    The Government is modernising insurance law to better protect Kiwis and provide security in the event of a disaster, Commerce and Consumer Affairs Minister Andrew Bayly announced today. “These reforms are long overdue. New Zealand’s insurance law is complicated and dated, some of which is more than 100 years old. ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Government recommits to equal pay
    The coalition Government is refreshing its approach to supporting pay equity claims as time-limited funding for the Pay Equity Taskforce comes to an end, Public Service Minister Nicola Willis says.  “Three years ago, the then-government introduced changes to the Equal Pay Act to support pay equity bargaining. The changes were ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Transforming how our children learn to read
    Structured literacy will change the way New Zealand children learn to read - improving achievement and setting students up for success, Education Minister Erica Stanford says.  “Being able to read and write is a fundamental life skill that too many young people are missing out on. Recent data shows that ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • NZ not backing down in Canada dairy dispute
    Trade Minister Todd McClay says Canada’s refusal to comply in full with a CPTPP trade dispute ruling in our favour over dairy trade is cynical and New Zealand has no intention of backing down. Mr McClay said he has asked for urgent legal advice in respect of our ‘next move’ ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Stronger oversight for our most vulnerable children
    The rights of our children and young people will be enhanced by changes the coalition Government will make to strengthen oversight of the Oranga Tamariki system, including restoring a single Children’s Commissioner. “The Government is committed to delivering better public services that care for our most at-risk young people and ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Streamlining Building Consent Changes
    The Government is making it easier for minor changes to be made to a building consent so building a home is easier and more affordable, Building and Construction Minister Chris Penk says.      “The coalition Government is focused on making it easier and cheaper to build homes so we can ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Minister acknowledges passing of Sir Robert Martin (KNZM)
    New Zealand lost a true legend when internationally renowned disability advocate Sir Robert Martin (KNZM) passed away at his home in Whanganui last night, Disabilities Issues Minister Louise Upston says. “Our Government’s thoughts are with his wife Lynda, family and community, those he has worked with, the disability community in ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Speech to New Zealand Institute of International Affairs, Parliament – Annual Lecture: Challenges ...
    Good evening –   Before discussing the challenges and opportunities facing New Zealand’s foreign policy, we’d like to first acknowledge the New Zealand Institute of International Affairs. You have contributed to debates about New Zealand foreign policy over a long period of time, and we thank you for hosting us.  ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Accelerating airport security lines
    From today, passengers travelling internationally from Auckland Airport will be able to keep laptops and liquids in their carry-on bags for security screening thanks to new technology, Transport Minister Simeon Brown says. “Creating a more efficient and seamless travel experience is important for holidaymakers and businesses, enabling faster movement through ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Community hui to talk about kina barrens
    People with an interest in the health of Northland’s marine ecosystems are invited to a public meeting to discuss how to deal with kina barrens, Oceans and Fisheries Minister Shane Jones says. Mr Jones will lead the discussion, which will take place on Friday, 10 May, at Awanui Hotel in ...
    BeehiveBy beehive.govt.nz
    1 week ago

Page generated in The Standard by Wordpress at 2024-05-10T13:53:34+00:00