Improving the Quality of Legislation - the Legislatory Advisory Committee, the Legislation Design Committee and What Lies Beyond
12 Pages Posted: 28 Nov 2012 Last revised: 22 Mar 2015
Date Written: 2007
The inductive method of the common law, as opposed to the more deductive method of policy analysis appeals greatly to many lawyers, judges and legal academics. Legal academics prefer to write analyses of judicial decisions rather than to analyse the policies, drafting and implications of new statutes. But to focus primarily on case law at the expense of legislation is misplaced and misguided. The main source of new law comes from legislation; it requires much more attention from lawyers, judges and academics than it has received in the past.
However, if statute law bears such importance then quality control of legislation must be essential. The expectation in New Zealand now is that new Acts be drafted in plain English. This is not to say that the whole of the statute book is plainly, clearly, and succinctly worded. But notwithstanding, plain English drafting is not enough to produce high quality legislation. The Legislation Advisory Committee attempts to improve the quality of law making in a variety of ways. Its work has value and its Guidelines provide a checklist of factors to be considered when drawing up legislation. But they are not always followed and the Committee is not at the centre of the legislative process. As a result, the impact on the quality of New Zealand legislation appears to be benign but peripheral. Something more is required.
In response to this lack, the Legislative Design Committee was introduced to provide high level advice on the framework and design of legislation at an early stage of policy development. This new committee may, in conjunction with the Advisory Committee, provide significant impact on quality, but the degree of success will require assessment after further experience. Both committees might also benefit from amalgamation into a combined entity.
A more profound issue not addressed by either Committee is the other aspects of legislative design and practice not covered in the Advisory Committee guidelines. Matters such as Treaty of Waitangi principles, Bill of Rights Act, Human Rights Act and Privacy Act implications, and international obligations must be taken into account. Quality of regulation has also been problematic.
To successfully address problems of legislative design, all these relevant matters must be engaged with early in the process of policy design. It may be too late by the time the proposal even goes to Cabinet. But to try and deal with all these issues at the beginning of the policy development process, and to bear them in mind as the process iterates, is a Herculean task. We do also need vigorous examination of whether legislation meets policy objectives after it has been passed. More considered monitoring of legislative design, effect and consequences is necessary.
Keywords: law reform, legislation, legislative process, New Zealand, Treaty of Waitangi, New Zealand Bill of Rights Act, regulation
JEL Classification: K19
Suggested Citation: Suggested Citation