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Forgiveness vs permission: A cautionary tale of retroactive legislation

by Paul S Allen

Blog originally posted on idealog.co.nz 9 October 2011

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?

idealog

Paul S Allen

thewaterside.co.nz.

Legislation in Retrospect – Update

“Changes enable police surveillance bill to proceed” (RadioNZ)

I'm Watching You
I’m Watching You

(A follow-up to “Legislation in Retrospect“)

I am pleased that the select committee has changed the Video Camera Surveillance (Temporary Measures) Bill so that it does not apply in retrospect. This is a move in the right direction.

BUT

This Government has now clearly stated that they are prepared to change the law to suit their own interests and not in the interests or basic rights of the people whom they represent.

Once a Government brushes against the allegation of corruption (or corruptive practices and intentions) it is stained permanently.

The fact that they even looked at pushing through retrospective legislation in the first place shows the true nature of the current Government. Who is to say that if they had a full governing majority they would not have just forced that legislation through in spite of public objections?

A warning for the future, perhaps?

Paul S Allen
Barb Wire

Legislation in Retrospect

I'm Watching You

I'm Watching You

Legislation should never be applied in retrospect. 

The New Zealand government is trying to pass this into law at the moment.

Video Camera Surveillance (Temporary Measures) Bill

The part of the bill that needs to be opposed or removed relates to the retrospective application.

To retrospectively legalise the illegal activities of officials is a vote in favour of corruption.

We do need to address the use of covert surveillance, but to retrospectively apply the bill could lead to allegations of corruption of the government who are trying to bring a pre-designed outcome to a case that the government is trying to pursue through the courts.

DBHOH_BILL_11056_VideoCameraSurveillanceTemporaryM (pdf)

Part 2
Temporary continuation, and savings

Declaration of continued lawfulness 15

5 Temporary continuation of lawfulness of certain uses of video camera surveillance

  1. (1)  This section applies to the use of covert video camera surveillance as part of, or in connection with, a search, if that use—
    1. (a)  occurred prior to the coming into force of this Act; or 
    2. (b)  occurs before the close of the day that is 1 year after thedate on which this Act comes into force. 

I see this as the thin end of the wedge and sets a precedent for the government to repeat this process for other situations as well.

Any implementation of the bill should only apply to future action.

Legislation should never be applied in retrospect.

Paul S Allen

www.thewaterside.co.nz

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