Almost all laws are intended to change behaviour. What if behaviour doesn’t change or changes only a bit or in a way the lawmakers didn’t intend?
Government agencies are required to implement laws as they are. They tick off “outputs” ministers contract them to do. But increasingly the focus is turning to “outcomes” — actual measured change.
That is the aim of the government’s “targets”. They are still at an early stage and some are one-dimensional but over time more should be more complex and involve two or more agencies.
The targets run alongside Bill English’s drive to get agencies more focused on “customers”. That is fine for specific services to specific people — the analogy with private sector markets holds. But for many public services the “customer” is not, or not only, an individual. It is a group. For some services the “customer” is the whole of society.
Regulating what individuals, including firms, can or must do so they conform to generally expected norms and values and don’t do damage is a big element of public service activity.
So, while “customers” tell firms what their “outcome” is — more or fewer sales — when the “customer” is the whole of society or a large group, measurement is not straightforward.
In modern society it can be very complex.
One way out of the complexity is far less regulation. Rodney Hide as ACT leader promoted a Regulatory Responsibility Bill. This was to parallel Ruth Richardson’s 1994 Fiscal Responsibility Act (now part of the Finance Act) which set rules for managing and presenting budgets and government accounts.
The bill has been sidelined. One problem was Hide’s attempt to enshrine property rights, with recourse to the courts. But what is a property right? Space and light around your house which a neighbour must not limit? A welfare benefit? Relationship to a river? Chris Finlayson declared the Whanganui river a legal person in settling an iwi claim. And constitutionally aren’t all land titles a grant from the Crown?
English took another tack. He kicked regulation off to the Productivity Commission, which produced a 525-page report in June 2014. On July 30 Steven Joyce, who is Minister for Regulatory Reform (with ACT’s David Seymour as parliamentary undersecretary), responded to its 44 recommendations.
One dimension is to ensure new legislation and regulations and are high quality and likely to do what they allege. A second is to measure whether they do and refine or change them if they don’t. A third is to lift the quality of decisions by regulatory agencies — inside departments, for example, WorkSafe in the Ministry of Business, Innovation and Employment (MBIE), and outside, for example, the Commerce Commission.
Many of Joyce’s responses were general or “partial” or amounted to “work is under way”. An overarching strategy is to be published, as recommended.
But there is also action. One is the incorporation since 2013 into the periodic “performance improvement framework” (PIF) reviews of departments a requirement of “regulatory stewardship” (a public service in-word). Chief executives have specific responsibility for keeping legislation and regulation up to date and effective and to regularly report on that.
Up to now there has had to be a “problem” before there was action. Now the aim is to be proactive.
The PIF process is now applied to some of the regulatory agencies which are outside departments. Joyce wants that, or a similar review, for the rest.
On making new laws, Joyce said initiatives included refining expectations of departments and requiring them to issue disclosure statements and exposure drafts for public and interest-group input, with a “system-wide review once the impact of these initiatives becomes clearer”.
The Treasury and MBIE, which will run a “cross-government forum”, are to keep an eye on the show. Joyce didn’t agree with a recommendation for a separate unit in the Treasury, with its own charter. That might let chief executives off the hook, he reckons.
And “subject-matter experts”, not officials, need to lead improvements in regulatory practice — how regulations are applied. That includes fees and cost-recovery, which vary widely.
A new committee is to advise officials on the right division of what is detailed in parliamentary acts and what is left to regulation and rules made by ministers and officials. Over-detailed acts, which are hard to amend when they don’t work well, was a big complaint of the commission.
There is a lot more. Will it make a difference to everyday life? Not so you would notice. But if this works as the commission, and Joyce, intend, there will be a difference, mostly for the better.
The point is that this is not about what laws there should be but about how accurate, workable and effective they are. In that sense it is not a party political issue.
And in today’s hyperglobalised world with less room for getting things wrong, that could be critical to wellbeing. Which is the point of government.