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Regulatory Impact Statement:Regulatory Impact Statement: Increasing the Visibility of Legislative Quality Issues

The Nature of the Problem and the Case for Further Action

9. The nature of the problems with the quality of legislation in New Zealand, and the case for taking further action, was more fully canvassed in Treasury's 2011 RIS. For convenience the main points from the 2011 RIS are summarised below.

The quality of legislation matters a lot

The scope for problems, and the consequences of getting it wrong, are considerable because:

  • the law can impose significant demands on us;
  • legislation is the dominant source of our law;  and
  • both the stock of legislation and the rate of legislative change is significant.

Good quality legislation has a number of important generic attributes

  • It is robustly tested, so it is more likely to deliver on its policy objectives;
  • It is consistent with accepted legal and rule-of-law principles;
  • It is easy to access, and to understand;  and
  • It follows a fair and open process of development

NZ legislation is not comparatively bad ... 

International surveys do not suggest that New Zealand has fundamental problems with legislative quality - at least relative to other OECD countries.

.... but could still be much better 

Many people familiar with the development of NZ legislation, including those opposed to the Regulatory Standards Bill (like the Legislation Advisory Committee), would agree with this quote from the Explanatory Note for the original 2006 Regulatory Responsibility Bill

"In too many cases, [good legal] principles are not fully observed.  Far too many Acts and regulations are the result of undue haste, poor quality processes, and inadequate scrutiny."

Why NZ's existing legislative scrutiny arrangements struggle to be effective

Some of the problems with existing scrutiny arrangements are set out in Annex 2.

It is suggested that two fundamental challenges underlie and can explain many of the problems experienced with legislative quality and with existing legislative scrutiny and quality assurance arrangements.  These challenges, explained in more detail in the 2011 RIS, are:

  • the difficulty and growing complexity of the regulatory task in a modern, open, liberal democracy;
  • the strong incentives, pressures and human biases that operate on politicians, officials and private interests to push for legislation, to push for it to be made quickly, and to downplay or ignore the risks of poor legislative outcomes.
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