Writing laws

Parliment passed some poorly-drafted law during the term of the Clark Government, notably the Electoral Finance Act 2007, a most controversial set of laws widely condemned across the legal and quasi-legal community.

The Electoral Commission noted that it had had a "chilling effect" on political participation, but even before it was passed into law the Law Society and the Human Rights Commission had condemned it.

But then we had the example of a bad practice being retrospectively tidied up to legitimise the original activity, in the Appropriation (Continuation of Interim Meaning of Funding for Parliamentary Purposes) Act, which legally permitted political parties to continue to spend our money in the election campaign for purposes the Auditor-general had earlier determined were illegal.

While there are checks and balances to safeguard the public interest in new law, including institutional authorities and, ultimately, the courts, there has long been a need for prospective legislation to be better drafted in the first place.

To this end, the former prime minister and president of the Law Commission, Sir Geoffrey Palmer, has proposed a possible solution which, when examined simply in the context of making better-drafted law, should be considered by all parties in the House.

"Bad law often results from bad policy, but also bad law frequently taints good policy because of poor legal and regulatory design," according to Sir Geoffrey.

"The cost to the community from bad law and bad regulatory design is heavy; individuals cannot ascertain what their obligations are, nor can lawyers easily advise on the outcomes of disputes that occur under these laws.

"Heavy compliance costs are imposed often with inadequate analysis as to whether they are proportionate to the problem being addressed."

He also points out that the legal risk to the Crown - "the most sued entity in New Zealand" - is exposed by bad law, and that where complex issues are involved, a whole-of-government approach should be adopted.