Regulatory Responsibility

What to do about it?

We need a systematic approach to fighting poor law often passed with the best of intentions.

For some years the Cabinet have applied in desultory fashion a Regulatory Impact Statement approach to law making. The framework is problem identification, i.e. “market failure”, the alternatives including “do-nothing” and a cost benefit analysis loosely done. The assessment is overseen by the Ministry of Economic Development.

The approach is at present poorly applied. The RIS for the Emissions Trading Scheme failed to establish net benefits and instead declared the benefit to be meeting international commitments! I kid you not. The option of withdrawing from Kyoto is ignored presumably because it is deemed politically unacceptable. The RIS also makes no assessment of the likely intended and unintended costs of introducing an ETS scheme. No cost or benefit estimates are quantified. That is, the RIS was worthless.

I am sceptical of cost-benefit analysis applied to law making. I think the benefits and costs are too tough to measure and are often immeasurable. How do you do a cost-benefit analysis on the Electoral Finance Act’s overturning freedom of speech? And should we overturn fundamental rights because someone thinks that the benefits outweigh the costs?

I don’t think so.

ACT’s Regulatory Responsibility Bill sets out criteria against which law should be assessed, e.g. prospective, not retrospective, upholds property rights, rather than pinches them, etc. That’s the difference between ACT’s Bill and the present RIS.

And here’s another difference. Who should administer the system?

I am not keen on government departments overseeing it like the RIS on the ETS. What government department is going to put up withdrawing from Kyoto is an option? None, in the present climate. Likewise with standing up for our rights.

That’s why I am quite relaxed about having the courts involved in the process. They are independent of government. And they do know about rights and the settlement of conflicts.

If we believe we live in a free society, then we have rights, and Parliament should have to respect those rights, and where’s there’s a dispute it’s quite proper that the courts adjudicate.