New Zealand has been on a remarkable roller coaster ride over the last couple of months as it has first confronted and
now flattened the Covid-19 curve. But now, as the ride is starting to perhaps become a little smoother, some cracks in
the basic machinery that require immediate attention, are becoming somewhat obvious. The haste to achieve perfection,
while understandable, has seen some corners cut to the detriment of our democracy.
The restoration last week of a functioning Parliament after weeks of unnecessary suspension has been welcome and
positive. However, one of its first actions was simply embarrassing. In the rush to be seen to be doing something
positive for the struggling small to medium business sector, squashed up against the wall by the closedowns brought on
by the Covid-19 lockdown, the Minister of Revenue introduced a Bill to provide tax relief to the sector. Because it was
acknowledged that the sector’s needs were extremely pressing, the government decided to rush the Bill through all its
stages in one afternoon, rather than follow the normal process that could take up to six months. That of itself was
neither unusual nor irregular – Parliament does have the authority to act swiftly in situations where it considers an
urgent response is necessary.
What was unusual was that the Minister introduced – and Parliament passed – the wrong Bill, accidentally bringing into
law a multi-billion-dollar loan scheme, and only one MP seemed to realise what was going on. He was ridiculed at the
time but was subsequently proven absolutely correct. While such an incident does not show Parliament at its best, the
primary responsibility for this error rests with the Minister of Revenue. He has shamefully and weakly tried to shift
the blame to the Parliamentary Counsel’s Office for providing the wrong Bill, but there is no escaping his direct
responsibility for not having checked before he got up to speak in the House that he was actually introducing the Bill
he meant to. The good intention of moving swiftly to aid struggling businesses was completely undone by Ministerial
shoddiness and basic incompetence. Now, the whole process will have to be gone through again, and the hope must be that
the Minister might take the time to check he has the right Bill this time.
Then came the leaked emails revealing that the Police held major concerns whether they had the legal authority to
enforce aspects of the lockdown, given that the Solicitor-General in official advice, which the Attorney-General has
steadfastly and wrongly refused to release, had apparently suggested there was no legal basis on which the Police could
stop, let alone detain, people under the lockdown. Added to this have been questions about whether the Director-General
of Health, who has been exercising sweeping powers during the lockdown, has been going beyond the somewhat narrower
brief envisaged by the Health Act 1956. At the same time, the Court of Appeal has hinted at concerns about the legal
process adopted to impose the lockdown. In dismissing an appeal in a specific case, the Court said that it had
nevertheless raised wider issues that could be the subject of a separate, possibly urgent, hearing. The President of the
Court of Appeal observed in a reference to various arguments being raised by legal academics about the legality of the
lockdown that there extraordinarily complex questions needing answers. He further observed that a report of Parliament's
regulations review committee looking at government powers in emergencies was “hardly approving".
Early this week the government announced that Covid-19 recovery related legislation would not require a Regulatory
Impact Analysis. Most people would have been none the wiser about what a Regulatory Impact Analysis is, and why the
suspension of the requirement should be of concern, so the announcement raised virtually no interest.
However, Regulatory Impact Analyses are an important check on the way the Cabinet does its business. Their significance
is set out clearly in the Cabinet Manual – the primary authority on the conduct of Cabinet government in New Zealand. It
makes it clear that a Regulatory Impact Analysis must be undertaken for “any policy initiative that includes
consideration of regulatory options (that is options that will ultimately require creating, amending or repealing Acts
or disallowable instruments).” All such proposals going before Cabinet require such an analysis to “ensure that Cabinet
has the best available information on the nature and extent of a policy problem, policy options, and risks and impacts.”
The analysis is usually made public when a Bill is introduced to Parliament.
Regulatory Impact Analyses are intended to warn governments against actions that are impractical, unworkable or
otherwise unnecessary, and alert the public to the risks involved. They have probably never been more necessary than
they will be in putting together the post Covid-19 economic recovery package, yet they are being abandoned. It smacks
very much of a government that now seems less interested in the “facts” and proper accountability for its decisions,
than being seen to be “doing something”. When governments assume that they know best, and that the law and convention
can be pushed aside if they conflict with their plans, the public has every reason to become concerned.
During the Covid-19 situation to date the government has won plaudits for being clear and decisive in its actions.
People have felt included in the process, and that, plus a still huge sense of community fear about Covid-19, has
secured their compliance. That is good and we should all be proud of the sacrifices we have individually made. However,
none of that justifies treating due process, and sticking to the law, as just some sort of optional extra that can be
picked up and discarded as it suits, as now seems to be the case.
This is the time for the government and its authorities to be seen to be acting in absolute accord with the law, not
doing their best to get around it when it does not suit them. After all, this is the government that promised to be the
“most open and transparent ever.”