Forgiveness vs permission: A cautionary tale of retroactive legislation
by Paul S Allen
I have often heard from leaders the saying “It’s better (easier) to ask for forgiveness than to ask for permission”. This may be so, but it does not ever justify the actions of those asking – it merely “fixes” a problem.
To me this is laziness, ignorance or incompetence on behalf of the leader, whether that leader is in government, private sector or community organisation.
There has been debate recently about a certain piece of legislation, the Video Camera Surveillance (Temporary Measures) Bill, that the government has tried to pass under urgency.
The discussion has mainly centred around one aspect of the act – the application of the bill – and not necessarily about its content. The area of concern was the proposed retrospective application of the bill to justify the illegal actions already taken by the Crown and its officials, to reach an outcome in favour of the government.
I have no issue with using initiative and decision-making on the front line, but it needs to be done within the bounds of delegated authority, or by mandate due to exceptional circumstances, but even this mandate can be worked out ahead of time.
To do the best you can with the information and resources that you have in hand at the moment of decision is excellent, but to decide on a course of action that you have no authority to take, then ask for that action to be justified later by retrospective minutes or law changes is asking for trouble. Allegations of fraud, corruption and a lack of transparency will cause organisations or government to become tarnished.
So what can be done to prevent this from happening?
Setting and enforcing clear lines of delegated authority, spending levels, policies and procedures, including situations of exceptional circumstances, can avoid many allegations against organisations and governments.
A person (leader) or government that finds themselves in a situation where they have breached these guidelines or policies needs to be held to account, and to rectify the circumstance.
Once a course of retrospective legislation or policy decision has been requested (note, I have said requested, not taken) the credibility of that organisation has been lost, and its leadership needs to seriously look at the tenure of their positions for the sake of their organisation, no matter how popular or charismatic those people are.
The Video Camera Surveillance (Temporary Measures) Bill, although not perfect, has passed after the removal of the retrospective clause.
But the fact that the government has proposed to use retrospective legislation in the first place should stand as a warning to all. The question is will they try to do it again: and if so, for what?
Paul S Allen