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Government and Advice: Reflections on the Wellington Policy-Making Culture

Claudia Geiringer and Dean K. Knight (eds.) 'Seeing the World Whole - Essays in Honour of Sir Kenneth Keith' (Victoria University Press, Wellington, 2008) at 274-297

Victoria University of Wellington Legal Research Paper Series Palmer Paper No. 66/2015

13 Pages Posted: 27 Feb 2013 Last revised: 25 Mar 2015

Sir Geoffrey Palmer QC

Victoria University of Wellington - Faculty of Law

Date Written: 2008

Abstract

The New Zealand government is required to have a policy on every subject at all times. Essentially, the executive government has two fundamental types of activity: developing policy and executing it. There are many different sources of policy, including those in the political system such as ministers, Cabinet, the public service and political parties,, and those outside the system such as royal commissions, the media and international law. It is important to bear in mind that the context within which policies are developed and the process is never the same from one policy to another. The New Zealand scene is not readily capable of systematic or authoritative description and analysis.

This paper suggests that New Zealand can and should do better in devising policy and implementing it. The policy advice and implementation system in New Zealand exhibits weaknesses that should be rectified. Greater emphasis is required on the conversion of policy into legislation. Bad law often results from bad policy, but bad law also frequently taints good policy because of poor legal and regulatory design. Both the executive and the Parliament seem at their weakest when attempting to address complex issues that cut across legal frameworks and individual portfolios, and which should engage the whole of government.

The paper evaluates where the problem with policy lies, finding that part of it is created by the disjunction between the policy process and the legal instrument choice. Inability to secure at a central level coherence and control over regulatory interventions shows the same characteristics: problems of design. Bad law and bad regulation go hand in hand. The vertical departmental structures in which policy is developed, and the relative insulation of such structures from horizontal whole-of-government factors, contribute to the issue, as does the lack of capacity for policy development within the public service. The focus of the paper is the details of how problems occur when policy ideas come to be converted into legal and regulatory instruments.

The author discusses in detail a number of matters, including problems of assessing the Crown’s legal risk, the experience with the Legislation Advisory Committee Guidelines, the work of the Legislation Design Committee, and the work done by the Ministry of Economic Development on better methods of regulatory design and measuring in advance the impact of regulatory interventions. Developments in Parliament suggest the climate may be right to attempt to address the problems outlined in this essay. The first is the Regulations Review Committee’s recent Inquiry into the Ongoing Requirement for Individual Regulations and their Impact. One of the report’s recommendations is that a sunset regime for statutory regulations should be developed and introduced. The second development was the introduction of the Regulatory Responsibility Bill, aimed at improving parliamentary laws and regulations by specifying principles of responsible regulatory management.

Parliament could contribute more toward scrutinising legislative and regulatory proposals if it were given the tools to do the job. To successfully address the problems of legislative design, and regulatory design, the issues have to be engaged with earlier in the policy design process.

Keywords: New Zealand government, executive, policy creation, policy advice and implementation, legislation

JEL Classification: K19, K39

Suggested Citation

Palmer QC, Sir Geoffrey, Government and Advice: Reflections on the Wellington Policy-Making Culture (2008). Claudia Geiringer and Dean K. Knight (eds.) 'Seeing the World Whole - Essays in Honour of Sir Kenneth Keith' (Victoria University Press, Wellington, 2008) at 274-297; Victoria University of Wellington Legal Research Paper Series Palmer Paper No. 66/2015. Available at SSRN: https://ssrn.com/abstract=2225556

Sir Geoffrey Palmer QC (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

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