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Last Updated: 31 May 2015
Submission by the
Human Rights Commission
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Commerce Select Committee
18 August 2011
Sylvia Bell
Principal Legal and Policy
Analyst
Phone 09 306 2650
1.1 This submission on the Regulatory Standards Bill (the Bill) is made by the Human Rights Commission (the Commission).
1.2 The Commission’s primary functions include advocating and promoting respect for, and an understanding of, human rights in New Zealand society. An important part of this role involves assessing domestic legislation, and providing advice and guidance, on human rights compliance[1].
1.3 The Commission also administers a complaints process which deals with complaints about discriminatory enactments. Failure to resolve complaints of this nature can result in an application to the Human Rights Review Tribunal for a declaration of inconsistency. This process is very similar to the proposal in the Bill which would allow a Court to grant a declaration that a regulation is incompatible with the principles in clause 7.
2.1 The Bill will impact on New Zealand’s constitutional arrangements, specifically the relationship between the legislature, the executive and the judiciary and introduces rights not currently provided for in the New Zealand Bill of Rights Act 1990 (BORA).
2.2 The Bill does not refer to New Zealand’s international obligations generally, or to human rights standards more specifically, in the principles in clause 7. While the Commission recognises that the BORA is not sufficiently comprehensive in cover, it considers any extension is better addressed as part of the Constitutional Review. It is not appropriate to use legislation such as this to make significant constitutional changes.
2.3 The Regulatory Impact Statement notes, and the Human Rights Commission’s own experience, is evidence of the fact that the certification process - and the ability to challenge that certification - is likely to involve significant costs and any subsequent litigation certainly will. For example, the Crown’s costs in defending the Ministry of Health v Atkinson & Ors[2] case – which relates to a Declaration of Inconsistency - has cost $1.2 million to date and is still unresolved
2.4 More specifically, the Commission has concerns about the quality of legislation and some aspects of the current procedures. Good legislation should be consistent with human rights legislation, the Treaty of Waitangi and international law criteria. [3]
2.5 We would also note in passing that the Bill reads as though its authors see it as enjoying some sort of superior legislative status whereas, in the absence of an entrenching provision, it would simply take its place along with other public Acts. Its provisions would be easily circumvented by any other measure that simply sidelined the Bill by providing that its provisions would not be subject to the provisions of the Regulatory Standards Act.
2.5 The Commission would support the Treasury’s preferred option with some modifications.
3 Commission’s submission
3.1 The submission deals with the following matters:
➢ The principles of responsible legislation
➢ The certification process
➢ Declarations of Incompatibility
➢ Quality regulation
➢ Need for legislation – Treasury’s proposed option.
4.1 The main purpose of the Bill is to establish a set of principles which will provide a benchmark for good regulation and with which all legislation will eventually have to comply. The principles are set at a high level of generality, ranging from the rule of law and protection of (some) individual liberties to the imposition of taxes and review of administrative decisions.
4.2 The Commission accepts that the principles are not intended to be an exhaustive statement of everything that should be taken into account in producing good legislation but are designed to focus primarily on the effect of legislation on existing interests and liberties. However, the way in which the Bill is drafted could mean the principles become the definitive statement of what constitutes good legislation with the result that other equally important matters – such as human rights - not explicitly referred to in the Bill are considered less important[4].
4.3 A human rights approach to the development of legislation emphasises transparency, accountability, participation of, and consultation with, those affected, balancing competing rights and emphasising the needs of the most vulnerable where there is a conflict. It also promotes consistency with the international standards. While some of the aims of the Bill, such as consultation, accountability and transparency, are an inherent part of the value structure that underpins human rights, other aspects of the Bill – for example, the selective emphasis on certain rights such as property rights to the exclusion of the broader spectrum of rights in the international Bill of Rights - have the potential to undermine the human rights framework.
4.4 The principles are both substantive and procedural. The human rights approach is essentially procedural. Arguably certain aspects of a human rights approach are reflected in the 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). However, there are significant omissions.
4.5 The Commission therefore recommends that if the Bill proceeds there is explicit recognition of a human rights approach in the “procedural” principles – i.e. those in ss.7(1)(h) and (i).
5.1 Although clause 7(1)(a)(i) states that “the law should be clear and accessible”, the Bill itself fails this test. Given that it deals with issues such as taking of property and compensation, which will clearly be of concern to many people, the legislation is not easily accessible to a layperson.
5.2 The Commission noted in relation to the successive Super City Bills, that many submitters concerned about the impact of the legislation were unable to effectively make their views known because the proposed legislation was complex and had to be read in conjunction with other laws that were equally inaccessible. We cannot see the Bill resolving such issues.
5.3 Clause 7(1)(a)(iii) states that “every person is equal before the law”. The Commission has suggested on a number of occasions that the HRA and the BORA should contain a reference to equality. In our opinion that is where an equality provision properly belongs. We consider it inappropriate, therefore, to include it in a Bill such as this, but not in New Zealand’s preeminent human rights legislation.
5.4 The meaning of equality in practice can be problematic as it can give rise to a variety of interpretations. The Taskforce Report, which would inevitably be looked to as an interpretive aid if the Bill becomes law, has suggested that the phrase should be interpreted as only applying to administrative equality, that is, equal administration of the law or formal equality. However, formal equality can lead to significant injustice in cases where groups have been disadvantaged in the past because of characteristics such as race or sex. Treating these groups the same as everyone else perpetuates existing injustices and patterns of discrimination and social exclusion remain unchanged.
5.5 The Commission has consistently endorsed the approach in the international instruments that views equality as not simply restraint by the State, but as a positive duty on the State to take measures to promote substantive equality (including where appropriate, allocation of resources).[5]
5.6 Clause 7(1)(b) states that while legislation should not diminish a person’s liberty, personal security, freedom of choice or action, or right to own, use and dispose of property, some infringement may be necessary to protect the liberties, freedoms or rights of others. There is considerable overlap with some of the rights and freedoms in the BORA.
5.7 Leaving aside the fact that the stated purpose of the Bill is said to be to create a set of standards for good regulation, it is still difficult to see how the concepts in cl.7(1)(b) will not be linked to, and their interpretation coloured by, the substantive rights and freedoms in the BORA. We are not convinced that the distinction made by the Task Force – namely that the Bill will only apply to the development of legislation rather than implementation by the Executive, Legislature and Judiciary - will prevent this confusion.
5.8 The fact that some of the rights - such as the right to personal security - are not found in the BORA is also likely to be problematic. Sections 8 to 11 of the BORA are collectively entitled “life and security of the person” and refer to the right not to be deprived of life, subjected to torture or cruel treatment or medical experimentation as well as the right to refuse medical treatment. Clearly this is not what the Bill intends by the right to personal security. The terminology in the Bill is more reflective of Article 9 of the International Covenant on Civil and Political Rights (ICCPR) which is broader and relates to personal safety or autonomy and which the Commission would agree should be in the BORA.
5.9 Clauses 7(1)(b) and (c) effectively create a right to property. There is no such right in the BORA - possibly because it is not in the ICCPR (although it is in the Universal Declaration of Human Rights).
5.10 The right to property remains one of the more controversial and complex rights because it has major implications for other important social and economic rights such as the right to work, the right to enjoy the benefits of scientific progress, the right to education and the right to adequate housing. It therefore raises the issue of the social and economic rights (which are conspicuously absent from the Bill) and whether the right to property should take priority.
5.11 Some commentators have noted that including the right “not to take or impair property... unless it is necessary in the public interest” could effectively prevent Parliament doing anything redistributive as it would basically freeze the existing distribution of wealth,[6]while others have observed that “... as the principle would make it very expensive to impose limits on how property owners may act, this would sharply curtail planning and environmental protection laws among others”[7].
5.12 It may well be that a case can be made for recognising the right to personal security and the right to property but the Commission considers that it is inappropriate to introduce such rights in the guise of improving the quality of legislation. The appropriate place for these rights is the BORA and any changes to the BORA are of major constitutional signficance and should be addressed as such.
5.13 The fact that some of the rights in the BORA are found in the Bill (and the protections in the Bill are arguably stronger than those in the BORA) could result in establishing a hierarchy of rights. This is undesirable. The rights in the BORA are of fundamental importance and universal applicability. Having two statutes dealing with some of the same rights could lead to needless confusion.[8]
6.1 Clause 8 requires public officials to certify that legislation they will be responsible for creating and administering is compatible with the principles in cl.7(1). If not, they will need to be able to justify the incompatibility in terms of cl.7(2). The certification process will occur not once, but twice – on the introduction of the Bill and before the third reading. This is considered to increase transparency as it requires those responsible for regulation to justify and be accountable for it.
6.2 The cabinet paper notes that changes will have to be made to the public sector to implement this proposal but that certification will not necessarily involve greater resources or increase costs.[9] We disagree. The preliminary work necessary to certify that regulation complies with the principles will involve significantly more work for the public sector (and litigation costs if challenged)[10].
6.3 At a time of significant resource constraints, it is difficult to see what value is added by requiring Ministers and Chief Executives to carry out a cost benefit analysis on proposed regulation. A senior economist has stated that far too much is placed on the notion that cost benefit analysis somehow offers a means of resolving issues involving deep policy choices and that subjecting the certification process to some sort of cost benefit analysis is “likely to prove a recipe for bad legislation” [11]. While a cost benefit analysis has its place, it is unlikely to ensure issues that are difficult to quantify, such as good will and trust, are reflected in the resulting legislation.
6.4 Clause 16(2) will also require every public entity to use its best endeavours to regularly review all the legislation that it administers (including legislation that predates the enactment of the Bill) for compatibility with the principles and report on what steps it has taken to achieve this in its annual report.
6.5 The more onerous reporting requirements will create more work for the public sector. The Commission can speak with some authority on this point having undertaken a similar exercise in the late 1990s when it was required to examine all legislation, regulation, government policies and practices for consistency with the HRA. The review, which involved an initial self-audit by each Government department, was so intensive and time consuming that the Government eventually elected not to continue with it[12].
6.6 The requirement to review existing legislation for compatibility could also mean changes may be made to legislation to ensure consistency with the legal principles outlined in the Bill. This could defeat or subvert the intention of the Legislature that passed the initial legislation.
7.1 One of the more contentious aspects of the Bill is a Court’s ability to declare a regulation is incompatible with the principles[13]. A finding of incompatibility is declaratory only. It is not binding and does not mean that the offending legislation would be struck down. A Court may also find that a legislative incompatibility can be justified. In deciding whether this is the case the test in s.5 BORA applies.
7.2 The effect of the right to make a declaration of incompatibility in this context would alter the traditional relationship between Parliament and the Courts. The Courts would increasingly become involved in policy decisions that will be both time consuming and expensive. It is also a major constitutional shift for New Zealand.
7.3 If the jurisdiction of the Courts to make declarations of inconsistency was to be extended beyond the limited right in the HRA this needs to be argued in the context of the constitutional review. Doing it this way is both premature and pre-emptive and undermines the fact that the government has established a process to enable such changes to be properly aired.
7.4 The Commission considers that allowing the Courts to make Declarations of Incompatibility in this way would alter the traditional relationship with the legislature. This is of major constitutional significance and should be treated as such.
8.1 Although the Commission agrees that the quality of regulation could be improved, it is not convinced that this Bill is the answer. One reason for this is that it is not clear what is meant by “quality”. Although the purpose statement specifically refers to “improving the quality of the Acts of Parliament”, “quality” itself is not defined in the Bill, making it difficult to discern what level of improvement is desirable. Given the lack of clarity and the wide ranging nature of the principles themselves, the certification process could become a moveable feast hindering, rather than promoting, good law making.
8.2 In our response to the Task Force’s paper on the Regulatory Responsibility Bill, we noted that the quality of legislation generally would be improved if the LAC guidelines were followed and existing legislative process properly applied and respected. We were also concerned that the increasing use of urgency and the limited time available for public consultation at the submission stage of the legislative process could result in ill-considered or poorly formulated law.
8.3 Since then the situation has deteriorated further, leading the Commission to develop a discussion paper - Strengthening Parliamentary Democracy – which addresses a number of matters that arise in relation to this Bill. The paper is available at www.hrc.co.nz/news-and-issues/human-rights-in-new-zealand/feedback-on-strengthening-parliamentary-democracy-paper
9.1 The Commission questions the need for this legislation. It does not address what we consider to be the most pressing problem with legislation at present, namely human rights compliance.
9.2 Further most of the principles in the Bill are already addressed in the LAC Guidelines and there are Parliamentary processes in place which would achieve the same result if they were properly adhered to.
9.3 Human rights compliance is stressed in the LAC guidelines but not addressed in the Bill. If greater attention was paid to human rights during the development of policy then there would, in our view, be no need for such legislation as any unintended policy consequences would have been addressed before reaching Cabinet level, let alone the Courts.
9.4 The Commission does, however, consider there is merit in Treasury’s suggestion that Parliamentary review is strengthened by giving it an explicit mandate to examine legislative quality issues. We would, in fact, go further and suggest that there should be improved Parliamentary scrutiny of BORA vets generally by requiring the Attorney-General to present a report on any legislation that breaches the BORA, allowing an informed debate on whether a breach can be justified.[14]
9.5 We also endorse the concept of a Select Committee with responsibility for the quality of legislation, particularly if it included human rights compliance. In the discussion paper on Parliamentary Democracy referred to earlier we recommended the establishment of a Human Rights Select Committee which would enhance systemic Parliamentary oversight and strengthen accountability on human rights matters.
9.6 If a dedicated Human Rights Select Committee is not an option then a committee based on the lines of a Scrutiny of Legislation Committee such as that in Queensland, might be another way of addressing both the Commission’s concerns and accord with Treasury’s proposal.
9.7 The Queensland Scrutiny of Legislation Committee has responsibility for examining legislation for consistency with broad principles relating to human rights and/or the rule of law. Scrutiny by the Committee serves to alert Members of Parliament and the public to inconsistencies with the principles (which are found in the Legislative Standards Act 1992, Queensland not having a Bill of Rights) and to assist the resolution by Parliament rather than the Courts of issues where competing principles or rights are involved. Any potential inconsistency with the fundamental legislative principles is examined by the Committee, including the sufficiency of any explanation or justification. In addition the Committee examines the second reading speech and explanatory notes for information regarding any inconsistency.
10.1 There is no evidence that new legislation will improve regulatory quality. Not only does the purpose of the Bill remain ambiguous, it will impact on New Zealand’s constitutional arrangements. There is already a commitment to reviewing these arrangements by the present Government and such matters are best dealt with under that mechanism. Further the certification process could have the undesirable effect of politicising the public sector.
10.2 It is also far from clear what relationship the Bill would have with the BORA and how apparently overlapping rights would interrelate. Because of the significance of the some of changes proposed, a more extensive and informed debate would be desirable to ensure that there was public consensus about the need for change.
10.3 The Commission considers that if the LAC Guidelines were followed and existing Parliamentary process more scrupulously adhered to and supplemented by a Select Committee with responsibility for ensuring quality legislation, then further legislation is unnecessary. We note that a significant number of Government departments also oppose the Bill as does the New Zealand Law Society and a number of legal academics.
[1] Ss. 5(1) & 5(2)(k)(iii)
Human Rights Act 1993
[2] HC AK
CIV-2010-404-000287[17December 2010]
[3] See also comments by Tanner, G.QC “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
[4] For more on this topic see Chye-Ching Huang, Regulatory responsibility and the law [2010] NZLJ 91 at 92
[5] Substantive equality expressly addresses the interaction between recognition and redistribution, focussing not on status per se, but those groups for whom status differentiation is correlated with disadvantage. Sandra Fredman, Human Rights transformed: positive rights and positive duties, OUP (2008) at 178
[6] Brian Fallow, New Zealand
Herald 24 March 2011
[7]
Richard Ekins, Regulatory Responsibility? [2010] NZLJ 25
[8] The Commission endorses the comments that Professor Paul Rishworth has made in this regard in relation to the problems with the conflicting standards of the HRA and the BORA before the introduction of the 2001 Amendment to the HRA: “A Second Bill of Rights for New Zealand?” Policy Quarterly (supra fn 7) at 7. See also the comments by the Ministry of Justice in the cabinet paper at [para 49]
[9] Cabinet Paper: Adoption of the Regulatory Responsibility Bill drafted by the Regulatory Responsibility Taskforce at [para 33]
[10] See Treasury’s comment in the Regulatory Impact Statement at p.15 in which they note that “...compliance costs could exceed benefits”.
[11] Geoff Bertram,
“Deregulatory Irresponsibility: Takings, Transfers and Transcendental
Institutionalism” (Policy Quarterly Vol.6, Issue 2, May 2010 at 49)
[12] Human Rights Amendment
Bill: Explanatory Note No.181-1 at
ii
[13] Clause 12, Regulatory
Standards Bill
[14] At present the Attorney-General only reports if a breach cannot be justified. See also comments by Treasury in the RIS at [paras 16 & 17]
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