Laws should give effect to the policy intent while upholding legal and constitutional principles. Careful policy analysis and early consideration of legislative design helps achieve this outcome. It’s important for the policy process to consider legal issues proactively, so that advice can include an informed assessment of whether legislative change is the right intervention for the problem or opportunity.
Policy practitioners often deal with policy issues that may result in changes to the law. This includes any changes to Acts of Parliament, regulations, and other legislative instruments, whether major or minor.
Policy practitioners therefore need to know:
- how to assess the impact and cost of any change to legislation or regulation
- how to spot common problems with proposals for changing the law
- when non-legislative alternatives are likely to be a more suitable way to resolve an issue
- when to talk to legal teams, the Parliamentary Counsel Office (PCO), and the Legislation Design and Advisory Committee (LDAC)
- how to work with legal teams on the detailed design of legislation, as well as the ‘big picture’ policy issues
- how to ensure Cabinet Paper recommendations create a smooth pathway between policy approval and drafting instructions
- how policy stewardship obligations apply to maintaining a cohesive set of laws when considering changes
- how to consider implementation aspects of changing the law, including operational implications for the government, transitional provisions, and outreach and education that might be needed as a result of shifting to a new legal framework.
Policy practitioners also need to be able to help their agencies meet stewardship obligations by identifying emerging gaps in the law, or areas where the current law is becoming out of date. PCO has an ongoing revision programme, and can help agencies identify longer-term reform needs.
Policy practitioners should consider the full spectrum of possible levers to achieve policy objectives below, to determine whether legal intervention is the right tool for the job.
Spectrum of levers for government intervention
The LDAC Legislation Guidelines should be used when legislative or regulatory options are being considered. All Cabinet Papers seeking approval to introduce bills or submit regulations must indicate whether the LDAC Guidelines are complied with. It is best to use the LDAC Guidelines early in the policy process, so agencies can consider issues that may influence their recommendation on the comparative merits of law reform options.
The LDAC recently recorded the LDAC 101 webinar – less than half an hour introducing the who, what, and why of the LDAC. It’s useful for people who would benefit from an introduction to the functions of the LDAC and how they can help. The webinar is informative and easy to watch. We encourage you to contact the LDAC secretariat if you have any questions about legislation design or engaging with LDAC.
The Ministry of Justice provides information about human rights and Bill of Rights compliance reports to ensure policy proposals uphold New Zealand’s human rights obligations. Once a bill is drafted, agencies must also allow two weeks for the Ministry of Justice to vet compliance with the Bill of Rights Act 1990, prior to the bill being submitted to the Cabinet Legislation Committee (see Development and approval of bills).
Treasury is responsible for the strategic coordination of the regulatory management system, including regulatory stewardship. They provide information on impact analysis requirements for regulatory proposals and departmental disclosure statements.
The Public Law team within the Crown Law Office can support agencies by providing legal advice, including when legislative and regulatory reform options are being considered (e.g. clarifying the interpretation of existing provisions and the extent of legal risk to the Crown these present).
The Regulations Review Committee scrutinises regulations and other delegated law. They can hear complaints on regulations. The Regulations Review Committee has the power to disallow regulations on grounds set out in the Standing Orders (see Standing Order 327).
The Government Regulatory Practice Initiative (G-REG) has a set of resources for regulators – these include short films, webinars, and research papers on improving regulatory practice across government.
Recently G-REG have produced a new series of short films on how to make regulatory stewardship really work. For example, this short film Conversations between Regulatory and Policy Practitioners provides tips on how the policy design work underpinning regulatory change can be improved by early collaboration and conversations.
In August 2021 the Policy Project hosted a Policy Forum for policy managers and principal advisors on the interface between Policy and Law. Three speakers presented on the following topics:
- Lifting the quality of policy advice on issues involving law reform – Eliza Prestidge-Oldfield from Policy Project in the Department of the Prime Minister and Cabinet.
- Regulatory Stewardship: Legislative tools for the adaptation of regulatory systems – Denny Kudrna from the Regulatory Stewardship Team at the Treasury.
- The Legislation Design and Advisory Committee: what you need to know – Matthew Green from the Legislation Design and Advisory Committee.
Eliza Prestidge Oldfield also produced a webinar presentation on Lifting the quality of policy advice on issues involving law reform.