Why the Government’s proposed Regulatory Responsibility Bill is ill- founded, constitutionally radical, and likely to hurt democracy.

John Key yesterday announced in his speech from the throne that the Government “will introduce a Regulatory Responsibilty Bill and send it to a Select Committee for submissions and debate". In a guest paper for Maxim Institute, my colleague Dr. Richard Ekins and I explain why the version of the Bill that is publicly available (or any likely variations on it) shouldn’t be enacted. Here are those reasons in brief.

The draft Bill is supposed to make our legislators lift their game. While the PM’s announcement hasn’t yet generated much media attention, the Bill would be a highly significant constitutional change: it is essentially a second Bill of Rights Act 1990. The 1990 Act contains rights that are said to be the product of a stable, strong consensus at international law; the Regulatory Responsibility Bill would protect so-called “principles of responsible regulation.”

No sound case has been made for this kind of think-big constitutional reform. The current version of the Bill (and the principles it contains) is the product of the Regulatory Responsibility Taskforce, which was set up by the Government as required by the National-ACT Confidence and Supply Agreement. The Taskforce gave no good evidence that law-making in NZ is in crisis, did not diagnose the cause of any such problem, and did not consider the range of possible treatments. Instead, its Terms of Reference required it to single-mindedly focus on producing a draft Bill.

The Bill has two serious flaws.

First, some of the “principles of responsible regulation” are unorthodox and unsound.

For example, one of the principles is that legislation should not take or impair property unless it is in the public interest and full compensation is paid. This principle isn’t just limited to the expropriation of property – which the Public Works Act 1981 generally requires compensation for anyway – but would essentially create an extremely wide presumption against any law or regulation that changed how property could be used.

For example, it could be argued that if Parliament wished to criminalize prostitution, this would be a taking of the goodwill of what would otherwise be lawful brothels, and that brothel owners must be compensated. Or that the sellers of a newly-invented drug for recreational use should be compensated if sale of the drug is prohibited.

Second, the way that the principles of responsible regulation would be enforced under the Bill would harm law-making.

People who dislike a democratically enacted law would be able to seek a declaration from the courts that the law is inconsistent with the principles of regulatory responsibility. Judges would have to settle the meaning of the generally vague and highly unorthodox principles, and then decide whether any limitation on the principles is “justified in a free and democratic society”.

This is not statutory interpretation as normally understood, but involves moral, social, and economic – in a word, political – judgments. But judges lack the democratic legitimacy to make these judgments. Further, they are not well placed to make political judgments: they do not have to consult with other affected parties or the wider public.

Although the Bill does not allow judges to strike down legislation that they find inconsistent with the principles of regulatory responsibility, Parliament may well defer to judges’ decisions. Indeed, this appears to be how the Bill is intended to “work”. That would be an abdication of Parliament’s role, which should be to decide what should be law in a free and democratic society, rather than guessing what judges will think and trying to mimic that.

The Bill also requires judges to interpret legislation consistently with the principles of regulatory responsibility where possible. This could lead to judges adopting interpretations of legislation that are strained and inconsistent with what Parliament intended. The established meanings of all legislation and regulations would be unsettled.

The final enforcement mechanism is that the Bill requires senior public servants to certify whether proposals for law comply with the principles. This would politicize the civil service, and create an incentive for Ministers to appoint politically congenial Chief Executives of government departments.

In sum, while the motivation of improving law-making is laudable, the Regulatory Responsibility Bill is not well-grounded, would be a significant constitutional change, and would likely harm law-making. It should not be enacted, and the time and effort of considering it in Select Committee would be better spent considering other options to improve law-making.

The upcoming constitutional review provides a good opportunity to reflect critically on the law-making process, diagnose any problems that may be found, and consider the range of possible responses. (Indeed, given its constitutional significance, it is unclear why the Regulatory Responsibility Bill is being moved outside the constitutional review process.) In our paper, we outline some other options for improving law-making, such as reconsidering the use of urgency and investigating ways to improve post-implementation review of legislation. With resourcing of the magnitude already devoted to the Regulatory Responsibility Taskforce - $585,000 over about six months - much progress on these other options could be made.

Comments (39)

by Chris de Lisle on February 10, 2011
Chris de Lisle

You say this is "essentially a second Bill of Rights Act," and indeed, both your prongs of argument (& especially the latter) could be arguments against BoRA. If BoRA is ok (& maybe it isn't), why is the Regulatory Responsibility Bill not?

by BeShakey on February 10, 2011
BeShakey

An interesting article.  But its important to note that your claim that the Bill would "create an incentive for Ministers to appoint politically congenial Chief Executives of government departments" is hard to justify. 

Public sector Chief Executives are not appointed by Ministers, although they would normally be consulted on appointments (I think the general practice is that a Minister gets to veto a proposal, but not to suggest candidates).  Ministers can (and have in the past) exerted pressure on Chief Executives to resign, but they can't directly fire those they dislike, and don't get to choose who is hired.

by Claire Browning on February 10, 2011
Claire Browning

Without attempting to comment, either way, on the merits - because I don't know myself what the merits are - there's a quite different perspective here, from Jack Hodder. Hodder was a member of the taskforce. But he is also a member of the Legislation Advisory Committee or LAC.

He says the Bill is "largely based on the Legislation Advisory Committee (LAC) Guidelines". He says "The Bill does not in any way compromise the sovereignty of Parliament ... "

Just putting it out there, really, in the interests of hearing both sides of the argument ... and wanting to be told what to think ...

by The Falcon on February 10, 2011
The Falcon

For example, it could be argued that if Parliament wished to criminalize prostitution, this would be a taking of the goodwill of what would otherwise be lawful brothels, and that brothel owners must be compensated. Or that the sellers of a newly-invented drug for recreational use should be compensated if sale of the drug is prohibited.

Yes to both. I'm amazed you're trying to use this as damning evidence against the RRB.

People need to get over this notion that democratic laws are always good. What if Parliament democratically passed a law confiscating all property belonging to Asian NZers and distributing it amongst the rest - would you still defend it as democratic?

Unconstrained democracy is nothing more than mob rule, with no regard for human rights. Any Bill that limits the power of the majority to steal from the minority is welcome.

by Chye-Ching Huang on February 10, 2011
Chye-Ching Huang

Chris, three responses to your comments about the similarities between the Bill of Rights Act and the RRB.  First BoRA rights are somewhat less abstract than the RRB principles. For example, rather than affirming a general principle of “liberty” as the RRB does, the BoRA affirms specific freedoms and rights, for example the freedom of peaceful assembly, freedom of association, and freedom of movements. Secondly, the rights in the BoRA have a more convincing claim of reflecting international and domestic law "orthodoxy" than do the proposed principles of responsible regulation. For example, including full-blown protection for property (impairment or regulatory takings as well as old-fashioned expropriation) in the Bill of Rights would be very significant (and unwise because the principle is too vague and broad), yet this is what the RRB does.  No other comparable jurisdiction goes that far. Thirdly, there have also been problems with declarations of inconsistency and “rights-consistent” interpretation under the BoRA, as the paper discusses. I think we should be hesitant to extend the reach of these problems through the RRB. 

BeShakey, thanks for the comment about about Chief Executive appointment. The incentive for MPs to try to appoint politically congenial civil servants could operate at the next level up, that is by encouraging Ministers to exert more control or alter the appointment process (in addition to the ways you point out).

Claire, I think Jack Hodder’s assertion that the Bill does nothing to alter the sovereignty of Parliament is somewhat beside the point. It seems to imply that no change to the relationship between Parliament and the courts, short of allowing judges to invalidate legislation, would be a significant (or undesirable) constitutional change. Even though the RRB doesn’t give judges the power to strike down legislation, it would make changes to the constitutional structure that are both significant and undesirable, including by requiring judges to make political decisions of the type that they currently do not, and (we argue in the paper) should not.

Thanks for your thoughtful comments.

by stuart munro on February 10, 2011
stuart munro

Would I be correct to assume that the first point - taking or impairing property - would make tax increases, or new taxes like a capital gains tax, contestable?

It would surprise me if a bill could effectively limit future revenue bills.

by Tim Watkin on February 11, 2011
Tim Watkin

Chye-Ching, the bill of rights comparison is apt. In the US similiar state laws have been called a 'taxpayer bill of rights'. (See this). That's not something that a one-chamber house should vote through easily.

Indeed, it always seemed like a sop to ACT that would go nowhere, so I'm surprised its back on the list. National didn't seem nuts enough to go down this path, handcuffing itself and future parliaments.

Tell me, does it still include limiting spending increases to inflation plus population growth? That disturbed me, locking ACT's views on government spending into legislation for eternity. Colorado famously tried it and everything from its schools to its footpaths soon suffered from lack of maintenance and the economy suffered from lack of public sector input.

by Tim Watkin on February 11, 2011
Tim Watkin

Falcon, I'll quote that 'democratic laws aren't always good' line back to you some time!

But we agree on the last point – power needs restraints, which ironically is why these sorts of bills are so terrible. They say 'we know best' and take power from future politicians.

Can I assume from the last sentiment that you're an MMP fan? Cos that's exactly the rational for PR systems.

by Chye-Ching Huang on February 11, 2011
Chye-Ching Huang

Stuart, if judges in NZ were to follow jurisdictions overseas, they would make a distinction between "taxes" (not restricted by the principle) and "takings or impairment" (prohibited without compensation, unless justified in a free and democratic society).  So they'd have to draw the line between those sorts of regulation more like a "tax", and those more like a "taking or impairment".  In every jurisdiction that has any sort of generic right to compensation for takings, making that distinction has been very hard, and led to very muddled case law.  (The RRB does have a principle that deals directly with "taxes", but does nothing more than restate the Constitution Act 1986 provision that already renders invalid taxes not imposed by an Act of Parliament.)

Tim and Stuart, the RRB doesn't include a cap on government spending or revenues. But ACT has proposed, and National agreed to refer to Select Committee, a "Taxpayer Rights Bill" (directly modelled on Colorado’s Taxpayer Bill of Rights, to which you refer Tim), which would limit government spending and revenue growth to the sum of inflation plus population growth. 

I don’t know where this initiative sits now. Rodney Hide says it was put “on hold” because Treasury was busy with the recession.  A legislated spending cap was rejected for the last budget.  Treasury has floated its own version of a spending cap. Unlike with the RRB, I couldn’t find anything in John Key’s speech on Tuesday about the Taxpayer Rights Bill.

(In 2003, Rodney Hide introduced an initiative to the Taxpayer Rights Bill for local government. The Local Government (Rating Cap) Amendment Bill 2003 contained a binding cap for rate increases of inflation plus 2 per cent per annum, and a maximum rate increase in any three-year period of inflation plus 4 per cent. It failed to pass a first reading.)

by Chris Diack on February 11, 2011
Chris Diack

Tim Watkins is a [beautiful human being].  He exhibits a [deep love of kittens].  Normally this would not worry me but last time I looked he was [chief dogcatcher for the Greater Auckland region].  Thats a worry.

[Ed: The commentator got a bit carried away, so a bit of creative license has been applied here.]

On Pundit he repeats the nasty nasty little allegation that Hide bullies his female MPs.  This is what gives him away.  One sees the bias here where he characterises the ideas in the Bill as so odd that the Nats that he never thought they would be "nuts enough" to go with this.

I am sorry Tim, but Graham Scott and Jack Hodder SC don't "do" intellectual oddities. The Left often dismiss powerful ideas that they do not like as "silly".  Its intellectually lazy.  In this case Watkins is also politically inaccurate.

However his contribution here is a doozey - it indicates that not only does he not actually know what is going on politically but also has no understanding of the various public policy "pokers" that ACT has in the "fire".

No Tim.  The Regulatory Responsibility Bill (RRB) is not the same as a Taxpayer Bill of Rights (TBOR) either here or elsewhere (including Colorado).

The RRB is about non real property rights taking or impairing by the Government.  Its focus is on improving statutory and regulatory rules making.

A TBOR seeks to restrain the growth of government expenditure by setting a taxation cap and providing mechanisms for breaching that.

They are only incidentally related because taxation is a form of property taking.

In addition, Tim's understanding about how TBOR has worked in Colorado also displays classic leftwing lines i.e. is inaccurate. But lets not go down that path because this post is about the RRB best not confuse the two.

The essential point is that RRB and the TBOR are both separate and distinct public policy proposals both have seperate and distinct objectives

by Andrew Geddis on February 11, 2011
Andrew Geddis

"On Pundit he repeats the nasty nasty little allegation that Hide bullies his female MPs.  This is what gives him away."

I wonder where on earth he might have got that view from. Oh - that's right.

by Chris Diack on February 11, 2011
Chris Diack

The Falcon:

The reason that Huang and Ekins (but more particularly Ekins) focuses on issues of personality morality which are really matters of liberty is because of the natural law theories that he favours.

Ekins is a parliament man.  Except where Parliament attempts to contravene that natural law (see Pete George and John Finnis).

Your liberty over your body stops at the door of natural law.  You see this in the article were for example the authors cite an example of one of the many objectives of legislating is the pursuit "the common good".  This is coda for a particular philosophical approach to the State.

Natural law is a back engineering approach to justify a divine Creator.

Thus for Ekins Parliament passing laws that de-incentives homosexual relationships for example is ok personal liberty cannot trump the natural law and common good.

The purpose of all  sexual activity is procreation (its really a poor mans biological determinism).  One can discern this in the biological design (the plumbing).

Thus laws that foster procreation accord with the natural law and the common good.  Those that don't (civil unions for example) contravene the common good and natural law.

That is why Ekins would probably support the humane criminalisation of both homosexual conduct and prostitution.  He settles on the issue of  the criminalisation prostitution in the article because this is likely to have broader public appear than say the criminalisation of homosexuality (which would mark the authors out as extremist).

It's similar for your body and recreational drugs - it offends human dignity.  Ultimately you don't own your body you are only free to operate within the natural law.

That is why he does not support a legislative proposal the tilts towards a broad commitment to personal liberty he isn't a classical liberal; he's a ultra conservative.

by Chris Diack on February 11, 2011
Chris Diack

Andrew:

"A leaked, confidential dossier"  not written by Roy who then publicly backed away from the outragous claim.

I suppose its a leftwing trope that she was bullied to back away from the claim.

by Chris Diack on February 11, 2011
Chris Diack

[Ed: The commentator got a bit carried away, so a bit of creative license has been applied here.]

Pundit loses cred

 

by Claire Browning on February 11, 2011
Claire Browning

In case it assists anyone at all, a copy of the taskforce-reported version of the Bill is in here, see Part 3.

I'm still looking for a response, either in the post or your comment Chye-Ching, to the point I was actually driving at. This is my fault, for not expressing it clearly.

Briefly, there's an argument no less strong than the one that you have made, that the Bill, whatever its other faults (and there are plenty, in my view, though this is not my field of expertise) is in fact neither "ill-founded", nor particularly "constitutionally radical". Since you've chosen to rest your argument on those particular planks, as opposed to any of the other possible planks, I think it's fair to test their soundness out a bit.

Nor is it such a dead loser that a decent hearing at/dissection by select committee would be a total waste of the Parliament's time. If the Bill is dumb in part or whole, the committee can hear evidence, from actual experts, and chuck them/it out.

Although, having said that, the presence of 'The Falcon', et al, on this thread makes me want to head for the hills really, not step into the breach to defend it ... However. At least I feel I'd like to defend an informed and balanced discussion, if not quite the Bill itself.

So: "ill-founded", and "constitutionally radical". I have, for my sins, some acquaintance with the LAC Guidelines. I do not love them, it's fair to say - the Guidelines, that is. LAC members, on the other hand, are very fine people indeed.

The LAC is a group of weighty legal minds, and one of the things they already do, at the moment, is to 'vet' or review all Bills except Member's Bills passing through the Parliament. They write reports on them, based on the LAC Guidelines, and sometimes then make submissions to select committee, Parliamentary drafters, and so on, about legislative design or drafting improvements that ought to be made. They've done this with varying success over the years (but in theory for quite a long time) depending on the resources at their disposal.

There is no secret at all about this, but nor is it particularly transparent, or a particularly reliable systemic safeguard. The LAC has advocacy power only - and it does its work at quite a late stage, after Bills have been introduced (years down the track, for the big and complex ones, when Ministers have announced the policy and are committed to it). There are arguments for and against this, but from a regulatory improvement point of view, it has its limitations.

That is, as far as I can tell, one of the 'evils' this Bill is trying to fix. As I say, you can argue probably forever about how much of an 'evil' the status quo actually is - eg, arguably it's entirely proper for the 'power' of the LAC to be very limited or non-existent really. But one of the arguably good things the Bill does, it seems to me, is to take that legislative reviewing function and make it (a) systemic, and (b) transparent, and (c) shift it away from the LAC and out of the back room, to the hands of public figures who can be held accountable.

On the other hand, an argument against it might be that the LAC Guidelines were written in one context and for one purpose, and it simply does not work to try to lift them or key parts of them up into legislation - particularly a piece of legislation that the courts are then asked to apply in the way that this Bill proposes. It may therefore be that some of the principles are badly drafted or go too far, from an enforceability point of view, because they weren't written to be enforced in quite such a tangible way.

I agree that the "application of principles" part of the Bill - the courts' part - is "constitutionally radical"; it may be that the Bill here again goes too far, and that can be worked through. The "certification" part, however, I don't think is. No different from what happens already, all the time, when officials certify that their Regulatory Impact Statement complies with the Cabinet Office requirements, and puts that declaration along with the statement up online. Again, that part of the Bill is pretty clearly based on an established precedent - whether or not one that the public knows about. I simply do not fathom the 'politicisation' point here.

One last thing: I think if the faults with this Bill were corrected (if that's actually possible), the comparison with the Bill of Rights would be totally inaccurate, not apt at all. They'd be two different pieces of legislation, doing different functions.

by Andrew Geddis on February 11, 2011
Andrew Geddis

Sorry, Chris. I should have known better than to take the apparent views of an ACT Party MP at face value.

"Ed: The commentator got a bit carried away, so a bit of creative license has been applied here.]

Pundit loses cred."

But retains its soul.

by Claire Browning on February 11, 2011
Claire Browning

PS. I had another point too, actually, about the irony of the bureaucracy this Bill is bound to provoke. Remember when 'govt3' (the sustainability programme) was abolished, because Nick Smith alleged that some departments' carbon footprints were in fact increasing, because of all the new officials employed trying to, er, measure and reduce the carbon footprint? Small government, anyone? That's going to be a laugh ... on Mr Hide ...

by Chris Diack on February 11, 2011
Chris Diack

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Andrew

No. You could accept what Roy said: she didn't write the document doesn't know how it was released and she rejects that particular assertion.

I am loathed to dwell on this.

But sorry.  If one is going to write seriously on New Zealand politics and the political year ahead (as opposed to be being a partisan) one should be careful about repeating attack lines from internal political dysfunction.  It's certainly relevant to deal with any ongoing political dysfunction or prospective dysfunction.  Voters generally don't reward this behaviour.  But to repeat attack lines isn't analysis.

It maybe that in Tim's case it is less bias more incompetence as illustrated by the confusion over the RRB and TBOR.

In truth It's a bit like saying the problem with Hone is being caused by the Nats.  Its an attack line it's not serious analysis.

On  bullying, you may not teach this in public law 101 at Otago but Parliament is a very intimate village.  One cannot be a pol who bullies women without this being widely known.   Such a pol would be stuffed.   It would become an issue in a number of different forums not least of which is the regular formal assessment of Ministers by the PM which takes into account a wide number of "soundings".

Consider, most Minister's offices are majority staffed by women - Parliament is largely run by women some of whom one would attempt to bully at one's peril.  Second,  Ministers spend extended periods of time with some of New Zealand's best civil servants many of whom are women.  These women simply would not accept this poor interpersonal behaviour.  If they are Ministerial or Parliamentary Service employees it would become an employment matter.

BTW how we going the crims not voting issue.  UK MPs getting worked up about it --- thought you said it wasn't an issue in any other comparable jurisdiction.

 

by stuart munro on February 11, 2011
stuart munro

In principle there is something to be said for constraining the revenue gathering activities of government. Part of the rise in cost of living over the last few decades has been from user charges being introduced, without a great deal of scrutiny.

For example, councils around the country moved some years ago to licence and inspect moorings, at a cost of around $1000 per year. In most cases, vessel owners were already inspecting their own moorings, at considerably less cost.

Any increase in revenue gathering like this should be subject to a rather grave appraisal, and I suspect that many changes of this kind were not. The many building inspection charges for instance, did not prevent the leaky homes debacle.

It's probably the mechanism of this bill that is inappropriate - private contestation of government charges is likely to create a very skewed and unpredictable charge regime. A more balanced result might come from a review function internal to government, tasked with keeping such charges as low as possible. It might be a good task for ACT MPs with surplus energy.

by Andrew Geddis on February 11, 2011
Andrew Geddis

Chris,

First up - please write your comments straight into the box on the site. If you do it in a word document before pasting them in, then we end up with the weird coding you see above your last comment, which is a real pain in the arse to try and edit out ... so from now on we won't bother.

Second, you actually want to provide a source for your original claim that "On Pundit [Tim] repeats the nasty nasty little allegation that Hide bullies his female MPs." Because I don't see it here. Or here. Sure, here he makes passing reference to Hide "bullying his deputy", but that's not exactly the same as your claim, is it? So ... want to show something further, or are you really now just "loathed to dwell on this" (which is a beautiful Freudian slip, btw).

Third, Public Law is a second year course at Otago. Laws 204. Get it right.

Last of all - "how we going the crims not voting issue. UK MPs getting worked up about it --- thought you said it wasn't an issue in any other comparable jurisdiction." Quick! Don't look here!! Look over there!!!

by Chris Diack on February 11, 2011
Chris Diack

Andrew

Far too cute.  "Passing reference" give me a break.  National "going easy" "girlfriend"  Oh dear.  Hide comparable to Winston First!    Hide just bullies his deputies (sui generis) not women...... oh pleazzzzeeee.

Laws 101 (turn of phrase)  or 204  or whatever- as I said the bullying line is a very nasty nasty little allegation its intended to damage.   Its the "big lie" in propaganda terms.  That's why some leftwing partisans love it and keep repeating it.  That is why it was made in the first place by someone other than Roy.

As I said this stuff is attack line, the claim lacks any cred, and its certainly  not analysis.  If Watkins wants to be a partisan that's fine but its not any species of journalism.

I am happy to visit here and treat serious people saying serious things with the respect they deserve; by robustly engaging with their ideas.  I am not particularly interested in mere leftwing bog standard partisanship.

I am happy to concede that Watkins is confused.

Was I wrong - UK MPs not upset about crims having the vote or maybe the UK is now a dis-similar jurisdiction in your view.

My slips (Fruedian or otherwise) are always beautiful - I am please to have provide some small entertainment in the desert that is Dunedin.

Now I would rather engage on the Ekins/Huanga arguements over the RRB (not be be confused with the TBOR).

by The Falcon on February 11, 2011
The Falcon

Can I assume from the last sentiment that you're an MMP fan? Cos that's exactly the rational for PR systems.

I would think the rationale for PR systems is that they are actually proportional, rather than based on arbitrarily defined electoral boundaries. I support MMP in that it makes some sense, unlike FPP. If you're going to have a mob-rule unconstrained democracy, you may as well have a proportional one.

Sorry, Chris. I should have known better than to take the apparent views of an ACT Party MP at face value.

Oh dear. More anti-ACT cheap shots. I prefer when pundit stays classy, rather than descending to the level of kiwiblog/red alert comments.

by Andrew Geddis on February 11, 2011
Andrew Geddis

Now, now, Chris - you're the one who chose to open your "visit here", where you intend to "treat serious people saying serious things with the respect they deserve; by robustly engaging with their ideas", with a personal attack on one of the site's contributors. So it's a little bit "cute" to suddenly leap on the moral high ground and claim "I am not particularly interested in mere leftwing bog standard partisanship." But as we've already identified, ACT folks seem to have a problem matching words and deeds ...

Let's review Tim's "offending" comment:

"We all know that Peters has been bad and mad, but Hide spent taxpayers' money on himself and his girlfriend, bullied his deputy and divided his party, and endorsed an MP who stole a baby's identity. How is Hide any more right and proper than Peters? (Answers below. I'm sure you'll have some!)"

Interesting you pick up on only one of three accusations - you admit the other two, right? - but what exactly is so objectionable in his (deliberately provocative - it is a blog, after all) claim? Clearly sympathetic commentators don't dismiss the possibility Hide could be seen as "bullying". Surely the appropriate response would have been for you to comment on the post along the lines of "actually, he didn't bully anyone - here's why", rather than completely misrepresent Tim's words (a claim Hide bullied an individual who is a woman is not at all equal to a claim Hide bullies all the women in caucus, or all women in general) at a later date as part of some lame attempt to question his professionalism and ability to do his job.

On prisoner voting - it's almost as if you're trying to raise a completely irrelevant issue, rather than "engag[ing] on the Ekins/Huanga arguements over the RRB (not be be confused with the TBOR)." Words and deeds, once more? Here's your chance to show you mean what you say.

by Andrew Geddis on February 11, 2011
Andrew Geddis

Falcon: "Oh dear. More anti-ACT cheap shots. I prefer when pundit stays classy, rather than descending to the level of kiwiblog/red alert comments."

Oh, indeed ... but the quality of play is largely determined by the caliber of one's opposition.

by Graeme Edgeler on February 11, 2011
Graeme Edgeler

 

Indeed, it always seemed like [a 'taxpayer bill of rights' was] a sop to ACT that would go nowhere, so I'm surprised its back on the list. National didn't seem nuts enough to go down this path, handcuffing itself and future parliaments.

As I believe I pointed out last time this came up, the National/ACT confidence and supply agreement did more than proclaim an intention to get a TBOR to a Select Committee: it intended to do so "with the aim of passing into law a cap on the growth of core Crown expenses."

Contrast this with the promise over three strikes:

"National agrees to introduce the ACT Three Strikes Bill as a part of this package of measures, to receive submissions and consideration in the select committee. 

National further agrees to give the ACT bill a fair hearing in the committee based on the evidence and give due weight to the submissions received."

It seems quite clear to me that the Government has promised some form of TBOR, and not as a sop. They've publicly declared they're serious about it.

[Noting, of course, as above, that TBOR has nothing to do with Regulatory Responsibility].

by Chris Diack on February 11, 2011
Chris Diack

Andrew:

"don't dismiss the possibility Hide could be seen as "bullying""

That wasn't what Watkins said.

Wow what spin Andrew.  One commentator actually not plural - who didn't actually write on that particular allegation.

To say someone isn't a team player isn't to establish that they are a bully.

Sorry Watkins asserts (as an objective fact) that Hide bullied his deputy.  It wasn't qualified as allegation.  It was allegation repeated as fact.  Thats very poor journalism.

And it wasn't just one thing - it was the pattern - the total misunderstanding of the RRB.

I raised the crims not voting because I distinctly recall you maintaining that this isn't an issue in comparable jurisdictions and I said I want not aware of what was happening.  Then surprise surprise.   I know it must be galling for you to think Paul Quinn is ahead of the trend.  http://online.wsj.com/article/SB1000142405274870462900457613648197475390...

 

 

by Chris Webster on February 11, 2011
Chris Webster

Back to the future:

what if this RR Bill sees the light of day and becomes law? Given that its purpose is to: 'specify principles of responsible regulation', 'require compatibility' and  'grant courts the power to declare legislation to be incompatible'.

Would the LAC and its work then become redundant? And given the 'certification direction' in the purpose - would this also not obviate the need for the A-G to report to Parliament where a Bill appears to be inconsistent with the BORA?

And would the Regulations Review Committtee work and focus not also change? Should it - dont know?

The LAC guidelines 'are designed to improve the quality of legislation and increase the acceptannce by the community, by clriying its objectives, determining how best to achive the objectves and ensuring that affected persons are properly consulted. if this process is followed the costs of poor quality legislation (inlcuding uncertainty and confusion, the need to get legal advice and litigation) should be largely avoided'.

No disrespect if intended to any member of the august committee - but given the above how successful has the LAC been?  It admitted its work was weakened by the absence of a mandatory compliance process

http://www2.justice.govt.nz/lac/pubs/2007/annual-report-2007.pdf.

and to take on board Claire's comments - of a smaller government - should the RRB become law will it influence / affect reduce the speed and abundancy of legislation NZ passes?  For instance in 2006 91 acts (3810 pages) and 400 statutory regulations (5520 pages) were made and published.  Phew! (Source Jamieson LAC Guidelines Seminar 2007).

Bryce Wilkinson in 2001 forecast (govts_role.htm a Regulatory Responsibility Act (and modelled on the Fiscal responsibility Act) - to widen the criteria against which the regulations review committee could test secondary legislation - so this topic has some history.

And in 2003 PM Clark intoned: the government's role was whatever the government defined it to be'.

Now what was it john keysaid this week about duplicity? The more things change  ....

 

by Andrew Geddis on February 11, 2011
Andrew Geddis

So, Chris ... this is you "engag[ing] on the Ekins/Huanga arguements over the RRB (not be be confused with the TBOR)"? It's just you seem so hung up on other matters, is all. Words and deed, words and deeds.

Let's compromise, shall we? Tim should have written, "Rodney Hide caused his deputy to feel a bit intimidated in meetings and should have acted towards her in a more respectful manner ... but she claims to have never used the precise term "bully" to describe his behaviour ... even though Rodney Hide himself recognises that he could be perceived that way by others." Phew! Quite a mouthful, but it's important to get things right ... even on a blog post designed to stimulate commentary and provoke debate.

Now you are free to get on with your real business here, you'll be happy to note.

by Chris Diack on February 11, 2011
Chris Diack

No Andrew I don't propose to provide Watkins advice about how to write up a pretty nasty little allegation I am sure he learnt that in Journalism school.  Or perhaps Pundit should not be subject to the standards of journalism.

Nor should I have to correct him on the difference between the RRB and TBOR - I can only assume he did not even bother to read the Ekins/Haung paper as I have.

And not to be pedantic but no one else causes you to feel anything - your feelings as a competent adult are your choice.  Just like no one causes you to act in a certain way - you chose that as an competent adult- its a personal responsibility thing.

Happy to focus on the paper but you keep coming back for more.  I also note not a single contribution here from you on the paper.

 

 

by Andrew Geddis on February 11, 2011
Andrew Geddis

"Happy to focus on the paper but you keep coming back for more."

And so this forces you to respond? Your will is overbourne, and your personal choice is forfeit? This is "no one causes you to act in a certain way - you chose that as an competent adult- its a personal responsibility thing" in action?

Words and deeds. Words and deeds.

by william blake on February 11, 2011
william blake

Falcon ( or perhaps Cortina, Consul or Pinto) re democracy and common sense.qv W.Churchill.

as for MMP v FPP I agree entirely MMP provides more democracy threfore it rocks.

by Chris Diack on February 11, 2011
Chris Diack

It may have escaped your notice Andrew but I have already made a substantive contribution postulating an underlying philosophical position of one of the authors which might explain why Ekins is unlikely to support the elevating a general principle of personal liberty and why the paper focuses on examples of what might be called "personal morality issues" as examples of where a Parliament could/should legislate at odds with the RRB eg recriminalisation of prostitution.  It does strike one as a curious example of where a Parliament might be put of legislating due to the RRB.

I am not forced to respond to your diversionary behaviour I have never suggested otherwise.

Now if you have written something on the RRB happy to read it if you post a link.

by Andrew Geddis on February 11, 2011
Andrew Geddis

"I am not forced to respond to your diversionary behaviour I have never suggested otherwise."

So it is a choice you continue to freely make. How odd, given your expressed desire to engage only on substance.

Words and deeds.

by Chye-Ching Huang on February 11, 2011
Chye-Ching Huang

Claire, yes, it does seem I was responding at cross-purposes, thanks for clarifying (and for raising the tone on the thread!). 

On whether or not more time should be spent on this bill at Select Committee, I'd note that a version of this bill has already been through Select Committee once in 2007-2008. The Select Committee recommended that the Bill not be passed, and that a Taskforce be established to consider options to improve regulatory review and decision-making processes. But as already mentioned, the Taskforce's Terms of Reference did not in fact require it to consider any other options but to simply produce a bill.

I take your point about officials alredy being involved in certifying Regulatory Impact Statements. I think asking an official to certify that the nature and scale of the problem has been identified, the full range of problems has been considered, and so-forth as required by RIA, might be a bit different from asking CE's to make a call on a highly political decision about whether a proposal infringes "liberty" for example.

On your broader point about engaging the Taskforce on the basis of the case it makes, I started to write a comment outlining their case in more detail and our response, but it became rather long, so perhaps it would be be better to simply refer you to our full paper. Part I attempts to reconstruct the Taskforce's identification and diagnosis of the problem and explain why we find it lacking. Part II gives a detailed critique of the principles chosen, and explain why they depart from LAC Guidelines or other sources, or are otherwise unorthodox or unsound. 

by Chris Diack on February 11, 2011
Chris Diack

"given your expressed desire to engage only on substance"

Never said that what I said was "I am happy to visit here and treat serious people saying serious things with the respect they deserve; by robustly engaging with their ideas.  I am not particularly interested in mere leftwing bog standard partisanship"

That stands.

And then "Happy to focus on the paper but you keep coming back for more.  I also note not a single contribution here from you on the paper"

That stands.

Geeze it's puzzle.  I guess you haven't written anything on what these authors maintain is a proposal that is highly constitutionally significant.  I know Otago isn't a backwater (how could it be you are there) - or maybe you are super busy.

My initial substantative contribution on the RRB here may well be totally inadequate (I am an intellectual lillputian to you a mightly Gulliver in academe) but you seem to have made none here or elsewhere.  Perhaps you can offer up a link - show us that Haaaarvard degree giving the RRB the once over not so lightly.  You are a Sun in the little pundit solar system after all - shine brightly Andrew, shine brightly.

Actually I have engaged with you Andrew because thus far I have enjoyed it  - fancy trying a sort of 'baby' stage one cross on me, I am unworthy.

I will sleep on our learned authors' paper over night and make a second poor attempt at a contribution tomorrow.

by Andrew Geddis on February 11, 2011
Andrew Geddis

Chris,

Earlier in the day you commented "I am happy to ... treat serious people saying serious things with the respect they deserve; by robustly engaging with their ideas." I actually agree this is a good approach, and the way I have conversed with you is entirely consistent with it. This sun only shines on thems that deserves it.

by Claire Browning on February 12, 2011
Claire Browning

I'd note that a version of this bill has already been through Select Committee once in 2007-2008. The Select Committee recommended that the Bill not be passed, and that a Taskforce be established to consider options to improve regulatory review and decision-making processes. But as already mentioned, the Taskforce's Terms of Reference did not in fact require it to consider any other options but to simply produce a bill.

Yes, I take your point, that they're really just attempting a second crack at it. No argument there. I can't get access to Roger Douglas' version on Parliament, just this minute, but had been assuming the latest iteration would have evolved at least a bit as a result of the Taskforce' input. And I suppose - having watched good Green Bills get kicked for touch, time and again, without any effort at all to understand what they're about and whether (even if imperfect) they might be rescued - I am a bit inclined to take a liberal view of what should be allowed to go to select committee, in the faint (vain) hope that one day the courtesy might be reciprocated. And since it's democracy we're standing up for here ...

But having said all that ... despite appearances I'm not actually defending the Bill, as it stands today. This boils down to a suspicion that if you ran the same ruler over it, that the Bill is wanting to have applied to all other legislation past and future, it would not pass it - consistent with your comment above. Have all other non-legislative options been considered, for example. Do its relative costs and benefits come out on the right side of the equation. If you whittled it back to something harmless at worst and at best a regulatory improvement - some kind of legislative endorsement of the principles in the LAC Guidelines, and a requirement for officials and their Ministers to give effect to them (or explain why not) - well, there are other ways of doing that, less likely to result in litigation and bureaucracy.

Chris W: bless you, for giving it an honest try.

My answer, for what little it is worth, is that depending how a RR Bill looks in the end, there is room for it without stepping on the toes of BORA, LAC, and the Regs Review - and Law Com for that matter, which has as one of its functions keeping under review the laws of NZ, similar to what this Bill proposes officials should do. Depending how it looks in the end, it would be differently focused than those other exercises - which are also independent, and expert - and might give LAC more of a lever to act in an advisory capacity at an early stage (on the theory officials would come to it to ask how they can give proper effect to what they have to do), rather than playing catch-up (and sometimes not catching up at all, when something is passed urgently, eg CERRA). There is another good thing the Bill does: it would require scrutiny at the end of the Parliamentary process, as well as the start of it. BORA happens at the start, ditto LAC. Today, if BORA or LAC-inconsistent changes happen (conveniently) at select committee, well tough. But again, you don't need this Bill to fix that problem.

Plus, the risk of other motives and agendas being all bundled up in the dowdy respectable clothes of the LAC ...

by Chris Webster on February 12, 2011
Chris Webster

Andrew:

Plus, the risk of other motives and agendas being all bundled up in the dowdy respectable clothes of the LAC

 

well at least you have some clothes -- some emporers don't!

:)-

by Steven Price on March 18, 2011
Steven Price

I've got a different beef.

If making the courts grapple with the question of whether particular laws are demonstrably justified inevitably pitches them into a political zone they're not equipped to handle... why is this not also true of Bill of Rights Act, which contains the same test?

Is it just because the RRB explicitly allows declarations and the BORA doesn't? (Two points here. One: why the difference? Shouldn't we be asking the goverment why declarations are explicitly available in the RRB but not for the BORA? Two: as far as I know the courts haven't ruled out giving declarations on inconsistency (or at least "judicial indications") under the BORA. In fact, they've effectively decided that some laws are not demonstrably justified in the course of interpreting them, eg R v Hansen.

I'm afraid I haven't noticed Parliament responding with any enthusiasm at all to these indications from the judiciary. So I'm sceptical about doom-scenarios predicting that judges will muscle out Parliament's sovereignty.

Like Claire, I'm not going to bat for this bill. I'm just wondering why the discussion about seems so divorced from our experience of the BORA.

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