Commentary on current issues
New Zealand’ s three-yearly revision programme
We commented in our June 2009 Legislation Newsletter that five yearly review of regulations would be considered by the Australian Government to be “process heavy”. At first sight, something rather more onerous appears now to be proposed in New Zealand. The Legislation Bill (introduced into the New Zealand Parliament in 2010) includes a provision (clause 30) under which the Attorney-General must prepare a draft three-yearly revision programme for each new Parliament. The Chief Parliamentary Counsel is to be required to prepare revision Bills in accordance with the current revision programme.
The objective, however, of this reform is rather more limited than first appears. Under proposed section 31(3):
“A revision Bill must not change the effect of the law, except as authorised [by one of two provisions]”
(The two provisions allowing for changes to the law refer to “minor amendments to clarify Parliament’s intent, or reconcile inconsistencies between provisions” and updating of monetary amounts).
The exercise appears to be somewhat trivial, limiting revisions to changes which have no policy implications. We are not sure how this sits with the assertion on the New Zealand Parliamentary Counsel Office website that:
“In practice, policy and drafting are not mutually exclusive but form a continuum”.
Infrastructure and its regulatory framework
It can be expected that a Law and Policy Reform Brief about delivery of basic services by the private sector [Effective Regulation of Water and Energy Infrastructure Services, ADB, Brief No. 2 August 2008] will emphasise the importance of the regulatory context in which services are provided. Well, it does, referring both to an effective regulatory framework and the quality of the governance decisions made in that framework:
“Improved infrastructure and utility services are important for economic growth and can contribute to a better quality of life for the poor. The development of quality infrastructure and utility services needs an effective well-governed regulatory framework. [...]”
UK Guidance on Regulation
The process of making, implementing and reviewing legislation can be seen as a cycle, as depicted in the following diagram:
The phase after a law is made is important for two reasons:
- the implementation process commences;
- the law is reviewed. In some cases (such as subordinate legislation in Australia or local laws in Indonesia) the review can lead to the legislation being cancelled after it has been in operation for only a very short time. In any jurisdiction the review process can commence very soon after implementation, so that the implementation and review processes run concurrently. The review process should lead, in time, to revisions or replacement legislation being prepared.
The implementation process is important to the success of legislation – a law which is disregarded is worse than no law at all (as it adds to the complexity of the statute book and uncertainty as to people's obligations).
In Indonesia the implementation phase is called socialisation (sosialisasi). In the United Kingdom, the term guidance is given to the process of explaining to stakeholders the obligations in a new law and how to comply with it. The UK Government has recently issued a revised Code setting out good practice for what guidance should be. The 2009 Code of Practice on Guidance on Regulation sets out eight “Golden Rules” of good guidance: these assert to “business and the third sector” that the guidance which they will receive will be:
- based on good understanding of users (the “target audience”);
- designed with input from users and their representative bodies (the early involvement of end-users could be through a “stakeholder panel” or user-testing. Representative groups, such as trade organisations, can be useful sources of knowledge and advice);
- organised around the user's way of working;
- easy for the intended user to understand (it is to be jargon-free);
- designed to provide users with confidence in how to comply with the law;
- issued in good time;
- easy to access (which is more than we can say for the Code itself, which can be difficult to download);
- reviewed and improved.
We have the impression that the Code is intended for Government agencies rather than end-users. To get into the swing of things here, the target audience appears to be Government agencies. We cannot say whether the Code has been organised around agencies' ways of working, or whether it was issued to agencies in good time.