Writing regulations on how to write regulations
Returning Effective Power to the Citizenry
Something has gone terribly wrong in New Zealand. The practical Kiwi-can-do attitude that got things done seems to be dying. Getting anything done has become encumbered to the point where the social fabric is breaking down. As one examines what’s changed, it becomes clear it is the culture of government. Where once the elected representatives represented their constituents, walls have been built between the people and the system that governs.
The balance of power is skewed toward the ministries and the PM and Cabinet, where the democratic principle of elected officials voting their electorate is lost. To restore the balance of power, rules on voting instruction need to be changed, and the electorate MP’s and Ministers need their own staff of well-informed researchers to give them an independent assessment of the information provided (or not) by the Ministries and government agencies to the MPs and Ministers.
End party whip telling Electorate MPs how to vote
Change: Prohibit party line voting by Electorate MP’s; only permit party votes by List MPs
Why: As demonstrated by the first MMP government where one party held majority power, the PM and an inner circle of senior MP’s undermined the fundamental principles of democracy. The voters elect electorate representatives to speak for them, not for a political party. When they give a party vote, they are supporting the party platform.
What this policy will do: It limits the power of the party whips. The electorate MP’s will take their direction from their electorate, not the party. As members of a party, electorate MP’s can be expected to have a particular affiliation, but as representatives of the people, they cannot be told how to vote by the party.
Independent MP Researchers
Change: Fund three Office of MP researchers for each electorate and ministerial office
Why: To become an electorate MP one must win a vote of the people. To become a list MP, one must rise through the party ranks. Neither requires skills in understanding what law and rule making is about, and too many MP’s find they rely on the government agencies – the ministries – for advice. Unfortunately, such agencies have their own internal interests that are not necessarily aligned with the public interest. For MPs to remain informed, they require independent advice under their sole control. Not control as a party, but for each electorate or ministry.
What this policy will do: Each electorate and ministry is funded to employ three law & rule researchers. These researchers would have no political alignment, and would generally be expected to be inherited by the subsequent electorate MP or Minister, regardless of party, although they would serve at the pleasure of said MP and tender their resignation at each election. Their job is to learn and inform their MP as to the detailed workings of the government agencies that impact MP their role (electoral district or Ministry) independent of the information supplied directly by the agency. In effect, the researchers become a form of checks and balances with full right of enquiry into any matter within the Executive branch of government – with no impediments of privacy, state secret (with some limits on overseas-intelligence information) or commercial sensitivity.
Citizen Advocate Services for Electorate MP’s
Change: Each electorate MP has 3 funded citizen-services staffers with right of enquiry into any agency
Why: Accountability has broken down. Government agencies use privacy as a shield to avoid accountability. They limit contact with the public to telephone numbers with long holding time, answered by uninformed staffers reading from the same web pages available to the public. Decision-making is anonymous and unaccountable.
What this policy will do: Citizen Advocate Services (CAS) would fund three “fair go” type staffers to cut through the agency barriers. One of the staffers should be a practicing lawyer, qualified to bring legal action to require agency compliance without delay. CAS would have full enquiry authority, not put off by claims of privacy, commercial sensitivity or other barriers. Agency personnel or contractors who obfuscate or obstruct would be subject to negative reports on their personnel file that would be included in promotion, demotion or termination reviews.
The Shield of Privacy and Commercial Sensitivity
Increasingly, accountability requests for information directed to central and local government agencies are deflected with claims of privacy and commercial sensitivity. While government officials have a personal right to not become the subject of public scrutiny, their roles should not be able to use privacy to avoid accountability for their action or inaction), errors and omissions, misuse and abuse of their powers.
Further, in contracts with the private sector, too often claims of commercial sensitivity are used as shields to block legitimate public criticism. In contrast, in many local governments in the United States for example, private sector tenders for government contracts – including sales presentations – are open to the public and often read/attended by competing vendors. The presenting vendor hates it, but the upshot is their competition improving their product or service to win the next contract, thus the people get more bang for their buck. Everyone adjusts to the new open-reality, and quality of life improves for all as a result.
NZ’s laws which obscure public transparency must be replaced to ensure the public knows what its public servants are doing behind closed doors.
Drastically cut privacy & commercial sensitivity
Change: Open almost all government functions to public view, available without censorship, omission or obfuscation – and do so using government web pages open to everyone.
Why: Transparency is uncomfortable for anyone except the most outstanding performers. But discomfort is what brings about improvement. A transparent government becomes the focus of what is called crowd-sourcing, where private citizens become unpaid researchers focusing on inefficiency, waste or even wilful corruption. They do for free what media used to do when advertising in newspapers supported independent investigative journalists.
What this policy will do: The privacy laws will be amended to greatly restrict invoking them in public matters. Further, penalties for obfuscation, obstruction or delay will become personnel offenses that go on the personnel file and may result in penalties, demotion or dismissal. Privacy may protect a person’s name, where it is clear they may be unfairly targeted, but never their office. Most tenders and contracts with the private sector will be published online and all presentations captured in video and posted online. Government accounting will be published online, down to the transaction level, where a claim of privacy will require the same legal process as procuring a search warrant – permission of the court.
Regulation and Associated Costs
The cost of compliance with laws and regulations is becoming onerous; to the point where it is polarising NZ into a comfortable class who dislikes the cost of compliance but can afford it, and a struggling class who finds they are locked out of an adequate standard of living due to the excessive rules and regulations.
Tax versus User Pays
Problem: In democracies, people pay tax because they value certain services that benefit the public good. However, over time, the State begins to see taxes as its right, as the obligation of the people without accountability for how well those taxes are invested in the public good. More recently, the neo-liberal concept of User Pays appeals to elected officials because it takes some public services off the books.
The checks and balances of elected officials protecting the people’s money is lost as User Pays uses divide and conquer tactics where individuals face demands rather than the taxpayers as a whole. User Pays creates a monopoly lacking any effective checks on agency dictates.
Demands for fees, charges, contributions and levies are passed on to individuals, and in projects with fixed budgets, the government cut comes first, meaning the money needed for the applicant’s project is reduced, or in many cases, those costs are passed on to the final customer in the form of higher prices where it becomes a de facto tax. This has now become such a problem that public interest is damaged. For example, affordable housing has been regulated to the point where housing is no longer affordable by 90% of prospective first home buyers and 77% of Kiwis agree home ownership in New Zealand is financially out of reach.
Change: Significantly cut back on User Pays as a revenue source for central and local government. User pays fees must be clearly shown to benefit the applicant.
This change is proposed as part of the Citizen Advocate Services (CAS) described above. On its own initiative, or through citizen-request, CAS may demand a fiscal impact report of any User Pays. CAS may demand a change to the charge (including requirements for private consultants) to require the public benefit is paid by the taxpayer through agency funding. Fiscal impact includes not only charges by the agency and requirements for costly consultants, but also the cost of time and the cost of distracting the people from their work. Time and stress is as much a “tax” as fees, charges, levies, fines and 3rd party charges.
What this policy will do: On a real-time basis as the people encounter regulatory costs that are alleged to benefit the pecuniary interest of the person (user pays) but the person feels part or all of the benefit is in the public interest, said person may complain to any MP’s CAS (typically their electorate MP or the respective minister), and the CAS must investigate, and if it finds the complaint to have merit, to order the costs be properly apportioned. The agency may appeal the decision to the district or high court, but the respondent will be the office of the MP, not the complainant.
Redefine how public risk is covered
Problem: One of the adverse effects of the leaking home crisis was the determination that as the sole remaining party, under the principle of joint and several liability, territorial authorities were found to be liable for billions of dollars in damages caused by rotting buildings. In response, local governments radically increased the cost of building consents, demanding extreme detail with every risk covered by consultant reports.
This especially is the case where the agency (including local government) perceives a liability risk in making a decision. To reduce their risk, they require consultant documentation that is paid by the applicant. With no cost control, these fees, charges, contributions and levies are passed on to the public, where it becomes a de facto tax. This has now become such a problem that public interest is damaged. For example, affordable housing has been regulated to the point where housing is no longer affordable by 90% of prospective first home buyers and 77% of Kiwis agree home ownership in New Zealand is financially out of reach.
Change: Significantly cut back on User Pays as a revenue source for central and local government. User pays fees must be clearly shown to benefit the applicant.
This change is proposed as part of the Citizen Advocate Services (CAS) described above. On its own initiative, or through citizen-request, CAS may demand a fiscal impact report of any User Pays. CAS may demand a change to the charge (including requirements for private consultants) to require the public benefit is paid by the taxpayer through agency funding. Fiscal impact includes not only charges by the agency and requirements for costly consultants, but also the cost of time and the cost of distracting the people from their work. Time and stress is as much a “tax” as fees, charges, levies, fines and 3rd party charges.
What this policy will do: On a real-time basis as the people encounter regulatory costs that are alleged to benefit the pecuniary interest of the person (user pays) but the person feels part or all of the benefit is in the public interest, said person may complain to any MP’s CAS (typically their electorate MP or the respective minister), and the CAS must investigate, and if it finds the complaint to have merit, to order the costs be properly apportioned.
Fiscal Impact of Regulation
Problem: Regulation is out of control. Rules are made in Wellington with no consideration of the cost, time and hassle that accompany them. The feedback loops that would make regulators aware – if they cared – do not exist. Consultation rarely reaches, must less listens to, the ordinary person impacted by proposed rules. The upshot is making life unaffordable for the majority of Kiwis.
Root causes: At one time, government presumed personal responsibility and regulation existed to control greed, ignorance and mistakes. In the past two decades, primarily in the name of health & safety, regulations have taken on a life of their own.
Regulations can becomes a de facto tax on the public, to such a scale the public interest is damaged. For example, affordable housing has been regulated to the point where housing is no longer affordable by 90% of prospective first home buyers and 77% of Kiwis agree home ownership in New Zealand is financially out of reach.
Change: On its own initiative, or through citizen-request, CAS may demand a fiscal impact report of any new regulation, at any time, including long after the regulation was put into effect when the public becomes aware of the costs. CAS may demand a change to the regulation to lower the fiscal impact, or require the cost is paid by the taxpayer through agency funding, not as user pays unless it can clearly be shown the pecuniary interest is apportioned its respective costs, and the public interest is paid by the public. “Fiscal” includes not only charges by the agency and requirements for costly consultants, but also the cost of time and the cost of distracting the people from their work. Time and stress is as much a “tax” as fees, charges, levies, fines and 3rd party charges
What this policy will do: All regulations must be subject to a validation test and if they fail, are to be eliminated and replaced by valid regulation. The terms health & safety will have precise meanings and require the regulation is written in a way that impacts the bad actors, but does not interfere with the rest of the affected people.
The Public Service
The pubic service has grown in size and at the same time is closing itself off from the people it ostensibly services. Far too many public servants – rebranded as officers, team leaders and senior managers – now take a degree in public service, then build a lifetime career within government, having no real-world experience in the industries they regulate. They have no understanding of the impact of their output on the regulated. Further, they are not held accountable for their errors, omissions or failures, and as their LinkedIn profiles show, they move from one government job to another. This needs to be changed.
Agency Personnel Sabbaticals
Problem: When agency personnel lack “real-world” experience, and are cocooned in a silo culture reinforced by their peers but isolated from public feedback and blowback, they make decisions that adversely impact the people. With the agency-made cultural insulation, they feel no pressure to inform themselves to make good decisions, but instead dig in and use the protections and resources of their agency to frustrate the people.
Need: The policy on fiscal impact addresses the situational matters, but the deeper problem is wilful ignorance. Learning is the cure for ignorance, and it comes through exposure to the persons affected by the agency’s acts (or non-action). The silo protections must be broken down, and this begins with exposing the personnel to the impact of their acts. This is not done by classes or seminars, but by sabbaticals, paid by government, in the field.
What this policy will do: For two months before starting any public service job that has any impact on the public, and one month every second year, the public servant shall be paid to take a sabbatical and work in the sector that is impacted by the acts of their department/team within the agency. The CAS will organise the sabbaticals, and if the volume is too great, additional CAS staff funding shall be provided to MPs to manage such citizen-services.
Personnel Accountability
Problem: Agency personnel are not personally accountable for errors, omissions, failures, fiscal blowout, bad policy, bad planning, bad execution, bad management, waste, inefficiency or bad performance, except in personal matters (e.g bullying, sexual misconduct, etc.). In some cases, as can be seen on their Linked-In profiles, they move to a new job in another agency of government. There are no rewards for risk taking, and no penalties for failure.
Transparency: The internet makes public disclosure of all acts far simpler. Require each agency to post its performance in detail so members of the public may analyse and identify the many ways agencies fail to deliver best practice with maximum value in terms of time, money and stress, including identifying the job titles responsible for the failures.
This will require significant change to privacy, commercial sensitivity and personnel accountability policies.
What this policy will do:
Open Information: Eliminate commercial sensitivity. If a business wishes to do business with the government, it must be prepared to fully disclose the contracts, and all payments available on line. Eliminate privacy as a shield for withholding information. For an agency to claim withholding, it must appeal to the court and pay both its own costs (out of its budget) and those of the people challenging such withholding. Open information is essential for the people to root out bad agency performance
Accountability: When bad performance is discovered, the CAS shall take up the case and identify the responsible personnel. Such findings shall go on the personnel employment record, and shall be considered for all personnel reviews, including salary, promotion, demotion and termination. The record shall be cross-agency so any person applying for any government job shall have their full record, including adverse performance findings, considered for any position funded directly or indirectly by the people.
Elections, Money and Influence
People do not contribute large amounts of money to political campaigns because they love democracy. They expect a quid-pro-quo. Perhaps the most extreme example of this is political campaigns in the USA where it never stops. It is expected of a member of Congress to spend half their time – 4 hours a day or more – raising money for their next campaign. This has not been the case in NZ, but it is increasing. This needs to be changed and with technology its easier to change.
Electoral Reform
Problem: Money buys influence. This creates inequity in government as pecuniary interest trumps public interest
Need: Tax-paid elections – A law on election reform would establish the channels through which all candidates make their pitch, with clear rules to block money for influence.
What this policy will do: The Internet plays a much larger role in elections, and it is the easiest to regulate. The government establishes an election web page provided for free to all candidates. It shall have three tiers
- Established parties – parties that have been in Parliament in at least one of the past three terms
- Small or emerging parties – parties that can show a membership of 200 or more
- Individuals – persons who put their name forth to gain a platform
For tier 1 parties, a tax-funded budget shall be set for hoardings and tier 2 a smaller budget based on membership.
The same shall be provided for mailers and a fixed budget for professional video presentations, paid for and sent by the electoral commission. The videos are recommended to follow the 1-3-18 format, meaning 60 second commercials, 3 minute elevator pitch and the 18 minute TEDx talk with each candidate allowed ten of each set to address the top ten issues in their mind.
Volunteers may door knock and hand out the official mailers, but no other printed matter. Volunteers may assist people in voter registration. Parties may call public meetings, with tier one and two funding for hall rental. Elected officials shall be prohibited from calling official meetings (ostensibly discharging their duties as MP’s) during election season unless specific dispensation is granted by the electoral commission.
No persons may pay for or provide electioneering material outside of the official process, except for advocacy on matters of policy that do not promote a particular party or candidate.
The right of reply to media editorials shall be accorded to any candidate, including Tier 3.
Platforms disallowed as mandates
Problem: During the election, political parties publish lengthy platforms read by very few, and then claim their planks as mandates when elected. This undermines democracy except for platform planks that had a high level of public debate.
Need: As part of election procedural reform, include in the law that platform planks are not mandates unless they had a high level of public debate.
What this policy will do: By placing the intent in the law, mandate claims are delegitimised, and while a party in power may do whatever they want, they risk adverse blowback when they try.
Outlaw lobbying
Problem: Lobbying is the sale of influence. A person develops an inside track within a party, and then crosses over into a consultancy where they charge private persons to gain access to the elected and appointed officials.
Need: People do need access to their elected and appointed officials. Officials need feedback including technical or complex information. Without it bad policy can be made. However this should not come with a price.
What this policy will do: Make lobbying illegal. Expand and fund the office of Ombudsman to include access specialists available to any and all persons. The specialists must be competent (and highly paid) so they can separate out the inappropriate applications from ones with merit. In most cases, merit means public benefit, but it also can mean improving the private sector so it is more competitive – thus indirectly benefiting the public. The specialists would not only evaluate, but would translate applications into the most effective form for an official or representative to digest and act upon. Essentially, the specialists become lobbyists paid by tax dollars.