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Proposed Regulatory Responsibility Bill - Submission to the Regulatory Quality Team, The Treasury [2010] NZHRCSub 4 (27 August 2010)

Last Updated: 26 May 2015

27 August 2010

REGULATORY QUALITY TEAM
The Treasury
PO Box 3724
Wellington 6140

The following comments on the proposed Regulatory Responsibility Bill are made by the Human Rights Commission (the Commission).

The long title to the Human Rights Act 1993 (HRA) states that the purpose of the Act is the provision of “better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights”. The primary functions of the Commission are found in section 5(1) of the HRA. They include advocating and promoting respect for, and an understanding of, human rights in New Zealand society. Under section 5 (2) there are a number of functions available to the Commission to carry out these primary roles. They include section 5(2)(k) which allows the Commission to report to the Prime Minister on “any matter affecting human rights including the desirability of legislative, administrative or other action to give better protection to human rights ...”^[1]as well as the “implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights”^[2]. The Commission also makes submissions to Select Committees on the human rights implications of proposed legislation through the public submission process and administers a complaints process which includes dealing with complaints about discriminatory “enactments”^[3].

The Commission has consistently supported and promoted both deliberative processes and well-considered legislative substance developed against a human rights framework in all its policy work including submissions on proposed legislation and general comments on the review of legislation. Transparency, accountability and responsibility are inherent in the value structure that underpins human rights.

The need for the Bill

(a) The Commission agrees that there are problems with the quality of legislation. However, the main problem for the Commission is that – despite the vets by the Attorney-General for compliance with the BoRA and some reference to human rights issues in regulatory impact statements – legislation or regulation is frequently not human rights compliant.

A human rights approach to the development of legislation involves certain principles including transparency, accountability, participation of, and consultation with, those affected, balancing competing rights and emphasising the needs of the most vulnerable. Some of these - for example, consultation, accountability and transparency – may appear to be consistent with the goals of the Regulatory Responsibility Bill but (as George Tanner points out in his article in Policy Quarterly^[4]) good legislation should also be consistent with the HRA itself, the Treaty of Waitangi and international law criteria among other things.

(b) The quality of legislation is unlikely to be cured by legislative solution but would be improved if the Legislation Advisory Committee Guidelines (LAC Guidelines) were followed and the existing legislative process properly applied and respected. There have been instances recently – most notably in relation to the Electoral Finance Act 2007, the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 and the Local Government (Auckland Council) Bill 2009 – where the legislative process has been subverted in a number of ways (whether by the use of urgency or by limiting the opportunity to make submissions on proposed legislation) and the resulting laws have been ill considered and poorly formulated.

The Commission was so concerned about the reduced length of time available for public consultation in relation to recent legislative change that it has developed a position paper promoting a 12 week minimum period for submissions to select committees which is available on its website at www.hrc.co.nz/nz/home/hrc/newsandissues/publicconsultation

There is no evidence that either a new process or new legislation will improve the situation while current protections and guidelines are ignored at will. Most of the matters raised in the Bill can be found in the LAC Guidelines. Most importantly the Bill will impact on New Zealand’s constitutional arrangements – for example, in relation to the introduction of rights such as the right to property and the interpretation of the right to security of the person. There is already a commitment to reviewing these arrangements by the present Government. Further it is far from clear what relationship the Bill would have with the New Zealand Bill of Rights Act 1990 (the BoRA) and how apparently overlapping rights would interrelate. Because of the significance of the constitutional changes proposed, it would be desirable that there was an extensive and informed nationwide debate and public consensus of the need for change.

The Nature and Scope of the Bill

(a) While the Commission recognises that the proposal may be motivated by good intentions, what is suggested will not have the desired effect and result in the quality of legislation that the public deserves.

Although some deviation from the principles is anticipated, the process for justifying the departure is unduly complicated and likely to be costly. Suggesting that “interested parties and the broader public”^[5] will be able to question the consistency of legislation with the principles is disingenuous as the cost of accessing the courts is prohibitive for most people. The Commission has the function of making “public statements promoting understanding and compliance with the BoRA”^[6] and frequently has to inform people that, unlike the HRA (which provides for a free complaints resolution system), in order to complain about a breach of the BoRA it is necessary to retain a lawyer^[7]. In the absence of a grant of legal aid, most people are unable to challenge what they see as breaches of the BoRA.

(b) While we can see that there might be some merit in establishing a set of principles against which to assess legislation, the Commission does not consider that the principles selected will necessarily improve the quality of regulation. As presently formulated, it is possible that rather than improving the situation, the Bill could make it worse, particularly if the process in clause 7 is retained. It could have the effect of politicising Chief Executives and compromising the neutrality of the state sector.

The principles are also somewhat arbitrary and, as we have already noted, do not include a reference to human rights. This is surprising given that Treasury’s Regulatory Impact Analysis Handbook already refers to human rights. The Task Force report states that the principles are not intended to be an exhaustive statement of everything that should be taken into account in producing good legislation but rather to focus primarily on the effect of legislation on existing interests and liberties (despite the fact that the Bill will arguably introduce some new ones). It comments that this is not to diminish the importance of the matters omitted but rather recognises the “limited purpose of the Act”^[8]. In practice the way in which the Bill is drafted could mean that the principles become the definitive statutory statement of what constitutes good legislation. It may follow that other equally important matters that are not explicitly reflected in the Bill are considered to be of lesser importance.

The following comments provide an indication of why we have concerns about the principles overall. For example:

• Although clause 7(1)(a)(i) states that law should be “clear and accessible” the Bill itself fails this test. As currently drafted it would be far from clear to a layperson what the Bill sets out to do and therefore what could be questioned as inconsistent. Law making by its very nature is a specialised and complex task. The Commission noted in relation to the public submission process on successive pieces of the Super City legislation many people who were concerned about its impact were unable to effectively make their views known through the submission process because the proposed legislation was complex and needed to be read in conjunction with other laws that were also equally inaccessible. We cannot see the principles resolving such issues.

• We also have difficulty with clause 7(1)(a)(iii) which refers to “equality before the law”. What equality means in practice is problematic and, again, something that is frequently misunderstood. The Taskforce has suggested that the phrase “every person is equal before the law” should be interpreted as applying only to administrative equality, i.e. equal administration of the law as opposed to the concept of substantive equality. Again, we agree with George Tanner that “in rights based legislation subtle distinctions abound”^[9] and that the distinction between the two will be difficult to explain and implement.

• Clause 7(b)(i) states that while legislation should not diminish a person’s liberty, personal security etc. some infringement may be necessary to protect the liberties, rights or freedoms of others. How these concepts are interpreted and justified could prove problematic particularly if they overlap with some of the rights in the BoRA. We are not convinced that the Taskforce’s distinction, namely that the Bill will only apply to the development of legislation as opposed to implementation by the executive, legislature and judiciary, will mean that there will be no confusion. Nor is it clear what the consequences will be of being able to make a declaration of incompatibility in relation to some rights under the BoRA and not others.

(c) As noted already the Commission does not agree that legislation is necessary but - should the Bill proceed - we strongly recommend that a reference to human rights is included in the principles. The present principles are a mix of procedural and substantive. The human rights approach which is referred to above, is essentially procedural. Arguably certain aspects are reflected in the draft Bill – for example, cl.7(1)(h) which requires consultation if practical with those likely to be affected is, to some extent, reflected in the human rights concept of participation, while cl.7(1)(i)(v) could be said to reflect the need to balance competing interests (although in the case of human rights, the balance should tip in favour of the most vulnerable rather than the public interest). The Commission suggests therefore that if the Bill proceeds there is an explicit reference to a human rights approach in the “procedural” principles.

The effectiveness and impact of the BiIl

(a) While the Commission agrees that the quality of legislation would be improved by greater transparency and monitoring, it does not consider that the mechanism proposed will achieve this. Much of what is in the Bill is already in the LAC guidelines. There is nothing to suggest that requiring officials to review legislation for compliance with the principles in the Bill will be any more effective than the guidance provided in the LAC guidelines.

In relation to compliance with human rights the Commission has suggested in the past that there could be merit in the establishment of a Select Committee, modelled on that in the UK and recently proposed in Australia, which has specific responsibility for scrutinising proposed legislation for compliance with human rights. The Taskforce has suggested something similar (at para 4.99) for ensuring consistency with the principles in the Bill. If consideration is given to increasing the role of Select Committees in improving the quality of legislation then human rights compliance should be part of their brief.

(b) The likely increase in litigation (and the attendant cost) is only the tip of the iceberg. The preliminary work necessary to certify that legislation or regulation complies with the principles will impose a major burden on the public sector. As Richard Elkins has noted^[10] “... certification is at best a modest component in a careful deliberative process; much more important is the time to consider the detail of proposals and an opportunity for experts, interested parties and other legislators to be heard”.

(c) At a time of significant resource constraints it is difficult to see any value for money in requiring Ministers and Chief Executives to certify compliance and carry out a cost benefit analysis^[11] and it could further politicise the presently neutral public sector. This is highly undesirable and “flatly inconsistent with our constitutional arrangements.”^[12]A cost benefit analysis has its place but is insufficient to ensure unquantifiable issues that are central to good law making, such as good will and trust, are reflected in the resulting legislation^[13].

(d,e,f) Under cl.7(1)(f) the courts are the final arbiter on the interpretation of the legislation. While there is nothing wrong with this in principle, given the scope and nature of the legislation which will be caught by the Bill, the courts could become involved in interpreting the application and meaning of even minor regulation. The Bill alters the traditional constitutional relationship in New Zealand between the courts and Parliament and shifts the power between the courts and the Executive to an extent that does not seem to have been recognised and therefore needs to be examined in totality.

The Taskforce states that in deciding whether legislation or regulation is compatible the courts will apply a test similar to that in s.5 BoRA and there is an expectation that they will either defer to the judgment of Parliament or recognise a “margin of appreciation” in whether a limitation is justified.

We would point out that in situations where deference has been raised by the Crown as a justification for allegedly discriminatory enactments before the Human Rights Review Tribunal it has not proved either straight forward or a complete answer. For example, in Atkinson & Ors v Ministry of Health^[14] the Tribunal noted that ... the Court’s function is one of review. It is not one of directly substituting the Court’s own judgment. But the more intensely it is appropriate to review Parliament’s appreciation of the matter the closer the Court’s role will approach a simple substitution of its own view.

(g) The Bill allows for declarations of incompatibility with the principles that involve a Court deciding whether the incompatibility is reasonable and can be justified in a free and democratic society. A declaration of incompatibility would not mean that the legislation is struck down but would act as a type of moral imperative. The process is modelled on, and very similar to, that in the BoRA. However, the fact that some of the rights in the BoRA are also reflected in the Bill – and the protections in the Bill are arguably stronger than those in the BoRA - it could result in establishing a hierarchy of rights which would be undesirable. The rights in the BoRA are of fundamental importance and should be considered as equal and of universal worth. Having two statutes dealing with the same rights could lead to needless confusion. The Commission endorses the comments that Paul Rishworth has made in this regard in relation to the problems with the standards in the HRA before the introduction of the 2001 Amendment to the Human Rights Act 1993^[15].

Clarifications on the Regulatory Responsibility Bill and potential alternative mechanisms

While the Commission agrees there is a problem with the quality of legislation, it does not require a solution as extreme as the introduction of legislation of the type proposed. The draft Bill is overly complicated and the principles ambiguous. It would apply to a vast amount of legislation and regulation and impact on policy in a way that could politicise the public sector. Further the resource implications of compliance are significant, both in relation to the certification process itself and ensuring the compliance of existing legislation. The Commission can speak with some authority on this issue because it undertook a similar exercise in the late 1990s. Consistency 2000 - which required the Commission to vet everything done “by or on behalf of the Government” for compliance with the HRA - was time consuming and ultimately had little impact on the volume of material involved.

We are also unsure of how the right to make a declaration of incompatibility in this legislation would relate to the s.5 test in the BoRA.

The following non-legislative initiatives would be more effective, practical and cost efficient:

• better and more consistent adherence to the LAC guidelines
• strengthened accountability for use of the LAC guidelines
• establishment of a Select Committee with responsibility for vetting legislation for human rights compliance.

The Commission has always supported strengthening the BoRA. We consider there would be merit in making it explicit that courts can make declarations of inconsistency in relation to all the rights and freedoms in the BoRA. It would also be useful to require a vet for consistency with the BoRA at the time of the third reading (i.e. after the legislation is returned from the Select Committee) and to require all the advice on consistency of Bills with the BoRA to be tabled in Parliament not just inconsistencies. In relation to the more substantive rights, the Commission has felt for some time that a more expansive right to security other than that currently found in the BoRA could be justified. There may also be some merit in considering whether it is timely to introduce a right to property, although when there have been attempts in the past to do so through Private Members Bills they have been unsuccessful. Clearly, therefore, the introduction of a right to property requires both bipartisan support and wide consultation.

If further explanation or comment is required please contact Sylvia Bell on DDI 09 3062650. We would be very happy to meet with the Regulatory Quality team to discuss the points made in this brief response.

Yours sincerely

Rosslyn Noonan

CHIEF COMMISSIONER

Te Amokapua

^[1] S.5(2)(k)(i) HRA 1993
^[2] S.5(2)(k)(iii) HRA 1993
^[3] S.20L HRA 1993
^[4]“How does the proposed Regulatory Responsibility Bill measure up against the principles? Changing the role of Parliament and the Courts” Policy Quarterly Vol.6, Issue 2 (May 2010) at 23
^[5] Report of the Regulatory Responsibility Taskforce at 4.26
^[6] S.5(2)(c) HRA 1993
^[7] With the exception of complaints about s.19 BoRA - the right to be free from discrimination - which may fall within Part 1A of the HRA
^[8] Supra fn 5 at 4.27
^[9] Supra fn 4 at 24
^[10] Elkins R, “The Regulatory Responsibility Bill and the Constitution” Policy Quarterly Vol. 6 Issue 2 May 2010 at 11
^[11] cl.7(1)(j)
^[12] Supra fn 20 at 12
^[13] As Bertram, G. “Deregulatory Irresponsibility: Takings, Transfers and Transcendental Institutionalism” Policy Quarterly Vol.6, Issue 2 May 2010 at 49 subjecting the certification process to some sort of cost benefit analysis is “likely to prove a recipe for bad legislation”.
^[14] Atkinson v Ministry of Health [2010] NZHRRT 1
^[15] Rishworth, P. “A second Bill of Rights for New Zealand?” Policy Quarterly Vol.6, No.2, May 2010 at 7