Earthquakes spur new approach to crafting better laws
Concerns about constitutional implications of Canterbury earthquake emergency legislation has led a policy expert to develop new legislative tools and methods.
19 May 2017
Sarah Kerkin, who graduated this week with a PhD in Public Policy, studied the constitutional implications of the policy response to the 2011 Canterbury earthquakes, to see if systems-based analytical tools could help design constitutionally-balanced and legitimate law.
"One of the cornerstones of New Zealand's constitutional law is the separation of powers. Parliament, the judiciary and the executive are all supposed to have balanced powers to prevent overreach by any one branch of government.
"However, the policy response to the earthquakes led to an enormous amount of power being concentrated in the Minister and Cabinet," she says.
"To deal with the crisis, the Canterbury earthquake legislation authorised Cabinet Ministers to propose new laws that could override any existing ones apart from a few crucial laws, such as the Bill of Rights Act and the Constitution Act. Technically, for example, the government could have amended requirements for local government elections in Canterbury.
"Of course it didn't and I think it's a testament to how deeply ingrained constitutional principles are in modern politics that that power wasn’t abused."
Sarah's PhD research at the School of Government proposes a new way of doing things, using various policymaking tools that help legislators design laws that are effective—and avoid unintended consequences.
"That's important not only to ensure a proportionate response to an immediate crisis like a major earthquake but also to ensure the new laws don’t have unintended consequences in the future, after the crisis has passed.”
Her proposals are based on systems analysis—a methodology that originated in the science and engineering disciplines as a way of defining problems, developing solutions to those problems, and ensuring the solutions would work in the real world.
“Systems analysis has become very influential in management theory and I came across it while I was on a management course for work. It struck me that systems analysis could be really useful in dealing with big constitutional issues.
"I thought about it for ages, and eventually told my husband one afternoon that someone should do a PhD on this. After much debate, it turned out that person was me!"
Sarah's research is already paying dividends in her work as a Chief Advisor at the Ministry of Justice. As a member of the cross-government Legislation Design Advisory Committee, she had the opportunity to advise the Ministry of Civil Defence and Emergency Management on draft legislation to respond to the Kaikoura earthquakes in November 2016.
While the Kaikoura response legislation is closely modeled on the Canterbury recovery legislation, it contains important limits on the powers of Ministers to amend existing legislation, which addresses concerns about the risk of legislative overreach.
"Constitutional issues are complex and they go to the heart of our society and legal system. They don’t usually have simple, obvious answers," she says.
"It can be hard to predict the consequences of constitutional change, and the presenting problem may not be the actual problem. That makes it difficult to respond quickly to tough constitutional issues when they arise.
"Ultimately, I hope my research and the systems tools I assessed will help policy analysts when dealing with these problems, and thereby strengthen New Zealand’s policymaking capabilities—and our constitutional protections."