Whether one likes the Government’s policy decisions or not, it is far more accountable to Parliament for its regulatory actions than its predecessors - even when there are gaffes such as Chris Hipkins’ last week
Opinion: Covid-19 Response Minister Chris Hipkins’ erroneous announcement last week that masks in public places were no longer mandatory under the orange traffic light setting led critics to argue his slip was another example of how complex and unworkable the government’s regulatory response to the pandemic had become.
After all, they said, if the rules have become so confusing and complex that not even the minister responsible seems to know what they are, let alone be able to explain them clearly, it is surely time to do away with them.
While many aspects of the government’s regulatory response have been overbearing and somewhat unnecessary, the explanation for Hipkins’ lapse in this instance was simple brain fade, not complex and incomprehensible regulations. Compounding his faux pas was the fact that ministerial brain fade is now becoming a regular occurrence for this government’s ministers.
In the same week, Housing Minister Megan Woods was all at sea when answering a question about the Reserve Bank’s Official Cash Rate, which drives mortgage interest rates. Not only did she not know what the current OCR was - the Reserve Bank had just raised it by 0.5 points to 1.5 percent - she seemed to have difficulty explaining its implications for mortgages. As she is the housing minister it is not unreasonable to expect her to have been well briefed and familiar with the issues.
Then there was the case of Police Minister Poto Williams not being able to answer media questions about police incident response times. While these were largely operational matters the minister could not be expected to know the full details of, she should at least have had better responses prepared, especially as she has been in the portfolio for over a year now.
Governments deserve to be criticised when they rely on regulations to impose their will, rather than pass specific legislation through Parliament. But when it comes to the Covid-19 response, criticism of the regulatory process the government has followed to implement its response decisions is wide of the mark.
The Covid Public Health Response Act 2020 sets out in detail the powers of the Government in dealing with the pandemic response. The act empowers the director-general of health, in concert with the minister, to make specific Covid-19-related public health orders, and specifies the purposes for which these orders can be made. It also prescribes the form such orders should follow, how they are to be publicised, and when they are to expire. The act requires Parliament to approve any such regulations, within a specified time. (Normally, regulations are made by the governor-general on the advice of a relevant group of ministers without any prior reference at all to Parliament.)
In addition, Parliament’s regulations review select committee, first established during the 1984-90 Labour government, and always chaired by an opposition member, has the power to review any such regulations that have been made. Its role is not to comment on the merits of any decisions, or the policy behind them, but rather on how those decisions are implemented by regulations.
So, while governments will always be criticised for controversial policy decisions, as indeed many of the decisions relating to aspects of the Covid-19 response have been, it is increasingly difficult to justify criticism on the grounds of an improper or not especially thorough regulatory process. Indeed, bills being introduced to the house now almost always contain a regulatory impact statement, often longer than the bill itself. Current legislative procedures and the rules for making regulations are now sufficiently specific to make it difficult for a minister not to be on top of what is happening each step of the way, no matter how complex the issue.
It was not always that way. Over the past 40 years successive governments have taken frequent steps to codify and streamline the regulatory process to overcome earlier criticisms that former governments were virtually able to do what they liked, with or without Parliamentary approval or scrutiny. Our system was frequently described by political scientists back then as “look, no hands” because governments were in effect elected dictatorships.
For those who yearn for the perceived halcyon simplicity of those earlier times, it is worth reflecting on how draconian things were at that time. In those days, it was not uncommon for ministers to commandeer the national airwaves, usually at the end of main evening television news on the one channel providing such news services, to announce some bold new policy move to be implemented almost immediately, without consultation. Frequently, but not always, the relevant opposition spokesperson was offered time to respond the following evening, but by then it was invariably too late, and the policy change had already been made.
The most extreme example occurred one night in June 1982 when the then prime minister and minister of finance, Sir Robert Muldoon, appeared at the end of the television news to make a 19-word announcement: “The government has passed regulations today to implement a wage and price freeze for 12 months from midnight tonight.” The story is told of ministers meeting the following morning, without the prime minister, to work out the scope of the previous evening’s announcement.
This was the most sweeping peacetime intervention made by a government without any Parliamentary approval. Muldoon’s government had a one-seat majority in Parliament at the time, and its resort to regulation in this way meant it was spared the prospect of the wage and price freeze - which was controversial even within some sections of the National caucus - ever being put to the test of a vote in Parliament. Free-market Housing Minister Derek Quigley had resigned a few days earlier over the increasingly interventionist direction of the government’s economic policy, specifically the “Think Big” projects, and there were serious questions about how secure the government’s slim majority was.
By contrast, even though sittings of Parliament were controversially and unnecessarily suspended altogether on public health grounds for a short period after the start of the pandemic in 2020, all the present Government’s moves have been subject to rigorous Parliamentary scrutiny since May 2020.
Muldoon’s wage and price freeze lasted for almost two and a half years until it was repealed by the incoming Labour government at the end of 1984. It had crippled the New Zealand economy while it lasted, leading to David Lange’s famous quip that Muldoon ran the economy “like a Gdansk shipyard”. When it was lifted there was the inevitable inflationary surge in wages, prices, and interest rates, which exploded further once the Goods and Services Tax and its one-off 10 percent inflationary effect was introduced in 1986. It was not until after the passage of the Reserve Bank Act in 1989 - over seven years after the introduction of the wage and price freeze that gave the bank the power to control inflation through monetary policy - that inflation was finally brought under control and the country was able to enjoy the nearly 30-year path of low inflation and interest rates, which is now coming to an end.
The carnage of the wage and price freeze had been made possible by the provisions of emergency wartime legislation passed by the Fraser Labour government in 1944. For over 40 years - until 1987 when the Lange Labour government finally repealed it - successive governments had been able to rely on the extreme provisions of the Economic Stabilisation Act 1944 to implement all manner of sweeping policies. The Muldoon government was particularly adept at using its provisions.
Section 4(2) of the Economic Stabilisation Act charged the minister of industries and commerce with “… doing all he deems is necessary or expedient … for the stabilisation, control, and adjustment of prices of goods and services, rents, other costs, and rates of wages, salaries, and other incomes”. Under Section 11, the governor-general was empowered to approve such regulations “as appear necessary” to give effect to the act and its provisions. The Economic Stabilisation Act contained none of the procedures for the making, duration, and implementation of regulations that the Covid response legislation includes in such detail.
The combination of the repeal of the Economic Stabilisation Act, the passage of the Reserve Bank Act, and the establishment of the regulations review select committee in the 1980s means the extremes of the Muldoon government’s conduct could not be repeated today. Whether one likes the current Government’s policy decisions or not, it is far more accountable to Parliament for its regulatory actions than its predecessors.
This more defined sense of accountability places greater pressure on ministers to be on top of their game, which makes slip-ups such as Hipkins’ last week harder to overlook and therefore more embarrassing. In his defence, it is probably a symptom of overwork - he is also Minister of Education, Minister of Public Services and Leader of the House as well, each major portfolios, and must be sorely in need of some respite.
The time may have come to adopt Health Minister Andrew Little’s recent sensible suggestion of doing away with the separate Covid-19 response portfolio and absorbing it back into the health portfolio, leaving Hipkins more time for his equally crucial other portfolios. However, nothing seems likely to happen before the end of the round of flag-waving international trips the Prime Minister has begun this week. In the meantime, Hipkins will just have to keep carrying his burden, and hoping for no more faux pas.
