After the election: an aim to make law better

The purpose of Parliament is to write laws and supervise those who administer them. The purpose of laws is to change behaviour. But do they change behaviour in the way intended?

The short answer: no one really knows. Last week’s example: what has been the cost-benefit of John Key’s idea to entice rich people to buy residency here?

James Cameron might be an example of gain. But there have also been costs: people with imported ideas about the purpose of donations to political parties; a rogue invited in by an apparatchik who has now cost taxpayers millions of dollars of lawyers’ time because of multiple bungles by other apparatchiks super-keen to hand him over to big brother United States.

Now the rogue is threatening dark revelations about Key five days before election day. Cynical timing. By comparison, Winston Peters was a familiar sort-of-middling figure at his conference (also playing cat-and-mouse over East Coast Bays, for which another candidate had been lined up) and Colin Craig was all earnestness at his show, setting a bottom line of binding referendums.

The immigration boss says there was no political pressure to invite in the rogue. Maybe not specifically. But there was general political pressure to milk the scheme.

Now the police watchdog says the police were justified in not prosecuting those who spied unlawfully on the rogue because the spies did not intend to break the law. For the rest of us “ignorance of the law is no excuse”.

Off to the side, the Productivity Commission has built a 525-page report on how to better devise, monitor and fine-tune legislation and regulation.

This originated from ACT, which wants far less and lighter business law. In 2009 Bill English and Rodney Hide jointly instructed agencies to tighten scrutiny of new law and assess existing laws for fitness-for-purpose.

Hide also wanted an act enshrining some ACT-type small-government principles. That was a step too far for English and in any case impractical, according to some academic experts.

But Hide did get a Productivity Commission, to which English has referred some challenging projects. And if National gets a third term he wants to reinvigorate the legislation/regulation work.

Done well, this potentially has four merits: lower costs to the government of wrongly focused or inadequate law (leaky homes was a very costly example); improved public service efficiency and effectiveness; lower transaction costs to business, which would lift economic efficiency; and higher general wellbeing.

New Zealand generally scores high for ease of doing business and clean government. But that is no more than a small, open country must do to keep up. The Productivity Commission report is a dismaying read of a fragmented follow-up since 2009, misplaced resources, fuzzy focus, poor communication, disruptive restructures, inadequate quality and quantity of staff and over-detailed primary legislation (acts) which Parliament can’t find the time to fix.

Two-thirds of “regulator chief executives reported they often work with legislation that is outdated or not fit-for-purpose”. Parliament’s regulations review committee, charged with oversight, has too few MPs and hardly any staff. Funding cuts have killed the Law Commission’s legislation oversight. Regulatory agencies “face challenges in attracting, training and retaining key staff”. The Treasury and the State Services Commission aren’t providing necessary support and monitoring. Regulatory board appointment processes and department-board relationships vary widely.

The report recommends “a system of peer reviews” by panels of senior regulatory leaders to get “the best compliance tools and policies”. It wants “greater oversight and direction from the centre”, involving tougher and more active supervision of agencies, coordination of and cooperation by agencies and setting “goals and priorities for the system as a whole” — all under a “head of regulatory profession”.

And there must be “energetic and focused leadership from within the cabinet, as the ‘owners’ of the system”. A senior minister should take responsibility, backed by an expanded team of specialists in the Treasury geared to continuous improvement, not just a one-off.

That, the commission says, requires “intellectual leadership”, which, we might add, implies nimbleness, integrating high-quality science (as Sir Peter Gluckman cogently argued last year), being open-mindedly up with international thinking and factoring in this decade’s rapid, deep geopolitical, geo-economic, technological and global social changes.

Plus a will among officials to argue with skittery three-year-lens politicians.

English, the obvious senior minister for the job, does have a longer lens. So there is a glimmer of a chance this report might not just serve as a doorstop and we might get more laws of the sort that change behaviour for the better, not indifferently or for the worse.

That is far bigger than Peters, Craig and the rogue put together.