Alex Penk

By Alex Penk - 09/02/2009

Alex Penk

By Alex Penk -

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Too quick off the mark  

This article was published in the Otago Daily Times, 15 January 2009.

Once again, a government seems to think that its favourite policies don’t require due process. The new Government’s hurried introduction of 90 day trial periods for new workers has put a few noses out of joint. This is no surprise. While the idea of trial periods is a good one, the process the Government is following leaves a lot to be desired. Although some of the concerns sound like scare-mongering, political posturing and self-interest, there are genuine questions being asked, questions that deserve to be taken seriously and treated with respect.

When there is disagreement over a proposed law, due process honours that disagreement by ensuring Bills clear a series of hurdles before they are passed – hurdles based on the free exchange of ideas and robust debate. The process should give Bills careful scrutiny and allow everyone to have their say before we change the law of the land. Not everyone will like the finished product, but people have a chance to voice their concerns, propose amendments, and be taken seriously. In the process, a Bill’s supporters might even see the wisdom of making changes or refinements. This time, we’re not bothering with all of that, and that is a concern.

I say this as someone in favour of trial periods. When the idea was put before Parliament in 2006, I made a submission on behalf of Maxim Institute supporting this change. There is much to like about the idea, including increased opportunities for those who would otherwise have a hard time convincing an employer to give them a go. It will also give employers a helping hand, by giving them the chance to see prospective employees in action on the job, and sparing them legal entanglements when things don’t work out. But though I, and others, like the idea, this case puts something bigger at risk – and the integrity of our law-making process. Earlier this year, constitutional law expert Jeremy Waldron delivered a Maxim Institute lecture on New Zealand’s “parliamentary recklessness.” He considered that we have “procedures for fast-track legislation which are quite disgraceful by world standards.”

Almost every law will be controversial in some quarters, but once it’s added to the statute books, we all have to obey it, regardless of whether we like it. In these circumstances, as Professor Waldron said, “any claim that the law makes on our respect and our compliance is going to have to be rooted in the fairness and openness of the democratic process by which it was made.”

Proper process also gives us the best chance of making good law. The Human Rights Commission points out that “rushed legislation is potentially risky legislation.” Proper process involves debates and votes in Parliament, public submissions, Select Committee hearings and reports, and robust public disagreement. These steps are not – or should not be – mere window dressing. They give us a real chance of improving and strengthening law before we have to obey it.

Not only does the process “reinforce democratic principles of transparency, participation and accountability,” as the Commission says, it allows the combined wisdom of submitters to be offered to make the legislation as good as it can be. Slowing things down with proper process also prevents us making law on the fly, and mature reflection and debate helps us see where there are unintended consequences to our actions.

We’ve seen how things go wrong when you legislate too fast, convinced of the rightness of your actions. The Electoral Finance Act promised to “promote participation by the public in parliamentary democracy.” It had the exact opposite effect. It was rushed through despite a mountain of legitimate public opposition, when more sober reflection might have made the last Government think again.

So it’s not good enough to assert that your law has good intentions, or will have good consequences. So often the devil is in the detail, and the Government can’t expect everyone to take it on trust that the law will work smoothly and well without putting it through the normal process.

The Government asserts that it “strongly campaigned on that legislation,” implying that by electing it the public has already had its say in favour of trial periods. Even if this is true – and it’s difficult to tell what the public thought was at the heart of a campaign and – promising something in a campaign does not excuse it from further scrutiny and does not trump all the reasons that underpin proper process. At a minimum, scrutiny is needed to ensure the legislation actually does what was promised.

The Prime Minister has also argued that the issue was “extensively debated” in 2006, and of course it went through public submissions and Select Committee then. But this doesn’t mean we can wave through any similar proposal now. This is a different Bill to the 2006 version that failed. It should satisfy the process, and the public, in its own right.

The Government also argued that the law is needed to fight the economic downturn, and this requires urgency. But even this argument is unconvincing. It is difficult to see how a delay of a few months – which is what proper process would take – would significantly hold back economic growth.

A cynic might suggest that there are obvious political advantages in passing this Bill quickly, rather than getting bogged down in a six month fight with the unions. But that sort of tactical manoeuvring is exactly what good law-making process is meant to prevent. Professor Waldron called for us “to get away from a situation where those who support a bill support rushing it through the legislature, and only those who oppose the measure express any concern about the process.”

A Government with the courage of its convictions should be prepared for public debate. Otherwise, all we are left with, in Professor Waldron’s words, “is a show of force, the posturing of preordained positions, and the quick and ruthless exploitation of momentary political advantage.” That’s not what anyone wants from their Parliament.

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Alex Penk

By Alex Penk -

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