An utter shambles II

Two weeks ago, the regime rammed through its deeply unpopular Regulatory Standards Act, imposing a radical Libertarian ideological straitjacket on all future actions by the New Zealand state. Just two days after voting to pass it, NZ First was promising to repeal it (or maybe not). And now, National is saying they might campaign on repealing it as well:

The National Party could join coalition partner NZ First and campaign on repealing the Regulatory Standards Act at the next election, deputy leader Nicola Willis says.

This is despite the law, which was pushed by the Act Party during coalition talks, being less than a month old, and having been passed into law with votes from both National and NZ First.

Speaking to Wellington Mornings with Nick Mills on Newstalk ZB, Willis said National had not “come up with what our party position will be after the election”.

“We haven’t ruled out repealing it either. We haven’t taken a position yet, but it’s not impossible that we would go to the campaign trail saying, ‘yes, we met our coalition commitment, we supported that into law, but actually we agree with the concerns of some people, it hasn’t operated as we’d hoped and we want to repeal it’.

“We haven’t come to a position yet, but we haven’t ruled it out.”

So we have a regime effectively campaigning against its own legislative program. I just don't have the words for this.

What I do have the words for is how utterly wasteful this is. The regime spent a year developing this law. It then put it out to public consultation in November last year, got 23,000 people telling them it was a stupid idea, ignored them, and sent it to parliament, where 159,000 people repeated the message. National ignored all those people and passed it anyway. They have wasted the time of public servants, MPs, and the public, at huge expense to everyone. So next time they talk about "waste" or "cost-cutting", we can all remember how they created a whole new ministry to develop and pass a law which they now promise to repeal.

I suppose it is good that National has finally listened, albeit far too late to do any good. But if they think any of the people who they ignored and derided will vote for them for this, I think they are doing an unpleasant bodily function metaphor in an uncomfortable place. As with Winston, only a fool would trust them to do what they say they will - on anything! If you want this dogshit law gone, better to vote for a party which has opposed it all along. Better to vote to throw this entire regime into the sea.

An utter shambles

Last week, the regime rammed through its deeply unpopular Regulatory Standards Act, imposing a radical Libertarian ideological straitjacket on all future actions by the New Zealand state. As part of the current regime, NZ First voted for the bill. And now, just a week later, they're promising to repeal it:

New Zealand First leader Winston Peters has vowed to repeal the Regulatory Standards Bill (RSB) if re-elected next year.

It's prompted the bill's key proponent, ACT leader David Seymour, to warn Peters could be jumping ship to Labour.

Peters told Radio Waatea's Dale Husband he wanted the bill gone earlier on Thursday, having voted it through its third reading this time last week.

"It was their deal, the ACT Party's deal with the National Party. We were opposed to this from the word go but you've only got so many cards you can play.

"We did our best to neutralise its adverse effects and we will campaign at the next election to repeal it."

While its good to see they've decided the law is a bad idea, it would have been better if they'd made their opposition clear last week, when it mattered, rather than this week when it doesn't. But the problem for Winston is that this makes it clear that we just can't trust anything he says. He might promise something in an election campaign or even a coalition agreement, but he might change his mind a week later, or work within government to sabotage the policies he has supposedly pledged to support. No-one can rely on such a party - not the other parties they would need to work with to form a government, and certainly not the voters, who can't be sure what they'll be getting. But then, hasn't that always been the case with Winston?

Meanwhile, I guess we can enjoy watching the current regime slowly collapsing under the weight of its internal hatreds. And the sooner it all falls apart and we can throw them all out on their arses, the better.

Reported back

When Rimmer pushed his Regulatory Standards bill though its first reading back in May, he recommended a report-back date of 23 December. That was subsequently brought forward to November, but that doesn't seem to have been quick enough. So now it has unexpectedly been reported back, with of course a select-committee rubberstamp recommending its passage. it's almost as if the "independent" select committee took their marching orders from National's quarterly KPI list or something...

166,300 people submitted on the bill. 98.7% of them were opposed, and only 0.7% in favour. That's 5% of the people who voted last election - a huge amount, and you'd think a democratic government would pay attention to it, given how hard it is to mobilise people to submit normally. But of course they haven't. Instead, the committee majority seeks to minimise the number of submissions, saying that

from additional analysis, 1,317 submissions were identified as containing detail or unique arguments, and were considered to be “substantive” on this basis.

So apparently 165,000 people - 5% of the electorate - don't count. Hopefully the regime will learn the error of that at the next election.

Labour has already committed to repealing this shithouse bill in its first hundred days. So its basically a dead letter, ideological posturing by a dying regime. If ACT is successful in ramming it through, then I look forward to its immediate repeal by the next, democratic, government.

National doesn't want you to know what people think of the Regulatory Standards Bill

Back in January the government held a public consultation on its draft Regulatory Standards Bill. The bill is a piece of neoliberal bullshit which seeks to bind all future lawmaking to some highly contentious (and not public accepted) Libertarian ideological principles, in an effort to deter future lawmaking with the threat of endless lawsuits. It also completely ignored te Tiriti o Waitangi - something which has resulted in an urgent claim to the Waitangi Tribunal. Understandably, this resulted in a high degree of public interest, despite the government scheduling the consultation over the holidays when it expected everyone to be asleep.

The normal practice in this day and age is for public submissions on such consultations to be proactively released. However, the bill's consultation document made no commitment to doing so. It did however include the usual boilerplate warning people that their submissions were subject to the Official Information Act, and asking them to clearly identify any material that they did not want released. So, armed with that notice, OI requested the submissions, taking care to note that a proactive release would completely satisfy my request. The Ministry refused, claiming that preparing all 23,000 submissions would require "substantial collation and research". I am not sure that this is legally true, given the Ombudsman's guidance on the topic. It may be a substantial amount of work, but given that the information is clearly identifiable, held, and sitting right there in a (metaphorical) pile, it is not "collation and research" in terms of the Act. There's also a clear issue here of the Ministry's duty under the Public Service Act to "foster a culture of open government", which you would think would require adhering to accepted practices about publicly releasing submissions.

Still, we've learned something: 23,000 people submitted on this draft bill. Which is an unprecedented level of interest in such a consultation.

While the Ministry promises a summary of submissions, this is not actually a substitute for the submissions themselves, for being able to read in people's own words what they think of the bill. And you have to wonder whether Rimmer's hand-picked ideologues at his pet Ministry will fairly represent the public's views in that summary. Public release is a useful check on this.

But one thing is clear: the government doesn't want you to know what the public think of their draft bill. Which invites the question: what are they afraid of?

Even Treasury thinks ACT is mad

Stuff reports that Treasury - which isn't what anyone would call "moderate", let alone "left-wing" - opposes ACT's spending cap legislation as too extreme:

Officials wrote in April: ''The Treasury does not support imposing constraints on the ability of government to set fiscal strategy via hard parameters in legislation.''

In the impact statement, Treasury argued future governments which did not want to be bound by the rule would get around it by giving tax breaks or increasing charges or tariffs.

It also concluded there would be instability if the rule ''was likely to be overturned shortly after introduction'' by another government.

Treasury instead recommended a review of the Public Finance Act.

And its not the first time. Here's what they thought of ACT's other pet issue, legislated regulatory standards [PDF]:

We do not support the Taskforce’s proposed Bill [which the ACT Bill was base don - I/S]. We doubt the chosen principles can attract the broad-based support necessary to induce enduring behavioural changes, and compliance costs could exceed benefits. The interpretive direction presents a particular risk of unintended outcomes.

Instead, they recommended better Parliamentary review - a proposal which has now been formally adopted in the National-ACT confidence and supply agreement.

So, what does it say about a NeoLiberal party when even Treasury thinks its policies are mad?

Imposing NeoLiberalism by the backdoor

Back in March, the government introduced the Regulatory Standards Bill to the House. Part of ACT's coalition deal, the bill will require all legislation to conform to (a highly ideological definition of) "good regulatory practice", and allow any legislation that does not to be overturned by the courts (providing greater protection for property than for fundamental human rights). Ironically, the bill did not meet its own criteria, and was too NeoLiberlaism much even for Treasury to swallow. It looked likely to die at Second Reading, unless ACTs votes are required next term.

Enter the Trans-Pacific Partnership. Ostensibly a trade treaty, the US government wants to use it to boost pharmaceutical-industry profits by banning us from saving money by bulk-buying pharmaceuticals through Pharmac. So, they're pushing for a Regulatory Standards Bill-style process, allowing laws to be challenged and overturned on cost-benefit grounds, as a way of tying Pharmac up and making it afraid to make decisions. This is a fundamental constitutional change for us. And our government looks like they will impose it on us not through a public discussion followed by a referendum or Parliamentary vote, but by stealth, through a treaty negotiated in secret and presented to us as a fait accompli.

This is undemocratic in the extreme. But its what happens when you let your foreign policy be conducted in secret: it ends up being used to launder radical domestic policy, which no-one would ever vote for, and ram it down our throats. And its just another in the long list of reasons why we need total transparency in our foreign policy: so our government and officials can't betray us by pulling stunts like this.

Submit!

The Commerce Committee has called for submissions on the Regulatory Standards Bill. Two copies, by Thursday, 18 August 2011, to:

Committee Secretariat
Parliament Buildings
Wellington

Or you can submit online from the link above.

The bill would be a fundamental change in our constitution, which would elevate property rights over human rights and effectively freeze regulation and lawmaking (including taxation, the minimum wage and worker's rights, workplace safety regulation, environmental regulation, food and product safety standards, building codes and transport regulations) by requiring the government to compensate the rich for any change. It speaks volumes that even Treasury thinks it is a crock of shit (not to mention the worst option of those on the table). If you don't want ACT inflicting their insane brand of Libertarianism on us, then speak up, and tell the Committee that you object.

If you've never written a submission, then the Office of the Clerk has a handy guide, here.

Faith-based policymaking

Today Rodney Hide released the official advice [PDF] on his Regulatory Standards Bill. It is the most thorough trashing of a stupid idea I have ever seen in a Cabinet Paper. Starting on page 6, Ministry after Ministry questions the need for action, the chosen principles, the role of the courts under the bill, and the costs of certification and court action. Here's a good sample, from a joint comment endorsed by 11 government agencies, including Justice, Crown Law, and the Parliamentary Counsel's Office:

The principles of responsible regulation in the Bill would be benchmarks against which all legislation would be assessed. They should therefore be clear, well understood, durable and almost universally accepted. That is not the case here. Some are untested, uncertain, and bear little resemblance to the more flexible fundamental common law principles identified in the LAC Guidelines. Given that the principles go wider than those in the LAC Guidelines, the choice of certain principles over others (e.g. a principle against the taking of property is included while the principles of the Treaty of Waitangi are not) requires a more thorough analysis and justification than has been provided.

The novel and wide-ranging nature of the principles could mean that certifying compliance with them becomes a bar even to legitimate law-making. Almost any proposed restriction or requirement in legislation could, for example, be said to diminish a person's freedom of choice or action in some respect, thereby infringing the liberties principle. The certification process may also lead to strained relationships between Ministers and Chief Executives where each reaches a different conclusion about compliance with the principles.

Judges would have to prefer interpretations of legislation that were compatible with the principles, which could produce unintended consequences, such as unexpected changes in the law with retrospective application, as discussed in the RIS. The resulting uncertainty about the meaning of legislation could be significant for business and others with legislative rights and obligations.

The RIS outlines the expected costs for government of complying with the Bill's certification requirements. The cost of vetting the existing stock of legislation against the principles, which apply to them after ten years, would also be significant. Amending legislation to make it compliant would incur additional costs and reduce the House time available for other matters. The Crown would face increased litigation risk and costs, not only due to the need to defend applications for declarations of incompatibility but also due to the risk of other litigation becoming more protracted, particularly litigation under BoRA and judicial review proceedings.

Hide's response? A prolonged injured whine, culminating in this:

I consider that my officials have overestimated the costs of the Bill while underestimating the benefits.

No evidence is presented for this view. No reasons are given to ignore the considered opinions of an army of paid policy professionals, including those best-placed to know, in favour of Rodney's ideological assertions. But that's exactly what Cabinet did [PDF]. Its a perfect example of faith-based policy making. While that is the prerogative of democratically-elected policymakers, at the same time it doesn't exactly make them look good, does it?

Irony II

Yesterday, Rodney Hide introduced his Regulatory Standards Bill to the house. The aim of the bill is to improve the quality of legislation by requiring Ministers to certify that new laws comply with a set of highly ideological "principles of responsible regulation". One of the less-contentious of these principles is that a law

be the most effective, efficient, and proportionate response to the issue concerned that is available.

According to Treasury's just-released Regulatory Impact Statement [PDF], the bill clearly fails to meet that criteria. In fact, like Kate Wilkinson, Hide appears to have chosen the worst possible option. The short version is in the table below:

Rodney's bill is the top option. As can be seen, it ranks worse on every criteria than the other possible options. As for why:

• Rodney's preferred principles are highly ideological and therefore will have little buy-in, either from the public or from Ministers. This will reduce certification to a compliance exercise. Meanwhile, the requirement for dual certification by both Ministers and officials creates strong pressure on the latter to agree with the former, reducing the integrity of the process. Ministers aren't qualified to certify, and officials may lack the proper resources to do so.
• The interpretation clause and ability to declare legislation incompatible creates significant legal uncertainty, particularly given the vague nature of some of the principles.
• The resource requirements for certification are extremely high, and will continue to be high even if there is no benefit.

The two major options proposed addressed these flaws. The first of these modified the bill to remove the more ideological principles and the interpretation and incompatibility clauses. But given that this imposition of Libertarianism by stealth was the bill's real purpose, you can see why Hide rejected that option. Meanwhile, Treasury's second option - basically requiring Ministers to highlight potential problems in their bills, and beefing up Parliament's ability to address them either through enhanced select committee support or a dedicated Officer of Parliament would actually significantly improve things, while not costing a lot or tying us to Rodney's peculiar ideology. This option - the most effective, efficient, and proportionate one - was also rejected.

The upshot: if Rodney's bill was law, it would not itself be able to be certified as meeting its own principles. But that's hardly surprising. As noted above, the whole purpose of the bill is to impose those highly contentious and ideological principles, with a right to challenge primary legislation for non-compliance, so as to deter and undermine environmental, health and other regulation and protect the profits of existing vested interests. "Quality legislation" is just right-wing code for further kneecapping government and preventing it from working in the public interest.

Irony

One of the "principles of responsible regulation" that Rodney Hide is pushing through his Regulatory Standards Bill is that laws should not be made unless there has been a careful evaluation of the issue, the effectiveness of the proposed measure, the alternative options, and the costs and benefits of each. The government does this at present, through a "Regulatory Impact Statement" attached to each bill (the guidelines for which are here).

Guess what's missing from Hide's bill...?

Elevating property over human rights

Today the government introduced its Regulatory Standards Bill into the House. The bill is a rewrite of ACT's Regulatory Responsibility Bill (currently hanging around on the Order Paper), and aims to force all laws to comply with a set of "principles of responsible regulation". Many of these principles around clarity, the role of the courts, consultation and policy evaluation are good ideas, and capture existing practice. However, there are also principles based explicitly on libertarian ideology, prohibiting government from taking or "impairing" property without full compensation. And the aim of these principles is to deter any policy not profitable to existing vested interests, and allow open-ended challenges to any attempt to strengthen environmental, health or employment protections. There is a BORA-style "justified in a free and democratic society" clause, which is going to be doing a lot of work, but the courts are going to be spending a lot of time and money telling farmers and polluters that actually, the RMA and ETS and smokefree legislation are demonstrably justified. I guess that's why Simon Power wants to free up time by eliminating jury trials...

But there is one very odd feature of the law: the protections for those property rights are greater than those of the BORA for fundamental human rights such as the right not to be killed or tortured. For example:

• The BORA requires the Attorney-General to warn of inconsistencies, but Parliament can pass inconsistent laws. The RSB requires Ministers to certify that bills comply with the principles, with the implication (and effect, as the certification will be written into Parliament's Standing Orders just as the BORA process has been) that laws cannot be progressed without certification.
• The RSB allows the courts to make declarations of inconsistency (though they have no legal effect). The BORA does not contain such a provision.

So, property rights for polluters will have greater institutional protection than fundamental human rights. Its completely topsy-turvy - but it speaks volumes about ACT's, and National's, priorities.