First published in ‘The Post’ on Tuesday 20 February 2024

“There should be a law against that”. Sometimes said in jest this statement often has serious undertones with many believing laws are the best way to control the right sort of behaviours.

Why do we have laws? On the face of it the answer seems simple. Laws help maintain order and justice, providing the backbone of any society to protect citizens.  Laws protect our rights, our property and us. They establish guidelines for acceptable behaviour and provide consequences for those who violate them.

My answer is to protect our rights and freedoms while fostering a safe, fair and prosperous society. A benchmark for principled based law-making.

I get nervous at any hint of legislation designed to appear that a serious problem is being taken seriously. There are plenty of examples. The 2006 law making micro-chipping dogs compulsory in New Zealand was apparently to stop rogue dogs from mauling children. Unsurprisingly rogue dogs are still attacking and mauling people in the same numbers. This poor law-making failed to meet its intent, but it still exists. While the law abiding dutifully micro-chip their dogs the savage dog attacks continue.

Last week the Australian Parliament passed the Fair Right to Work (Right to Disconnect) Bill 2023. A summary on the Parliament of Australia website says the new law “Amends the Fair Work Act 2009 to: prevent employers from contacting employees outside of work hours; and provide that employees are not required to monitor, read or respond to work communications from their employer outside of work hours.”

This generated media interest on this side of the Tasman and enthusiasm for similar action from some quarters. At first glance this sounds fair. If workers are expected – or worse coerced – to work outside normal hours shouldn’t the employer be taken to task? Or is this an attempt to legislate for work-life balance – something that each of us would define completely differently.

Life is seldom black and white and there are always multiple factors to consider. For example, do we actually know if there is a problem in New Zealand, and if so how prevalent is it?

COVID lockdowns have facilitated flexible working hours and working from home. Many office workplaces still offer employees the option of some ‘work from home’ days each week and flexible working hours outside 8 till 5 if it doesn’t impact productivity and is more suitable for workers. Although these arrangements are seen as positive in more contemporary work environments it does make work hours harder to define.

Most employers adopt flexibility too when it comes to employees dealing with personal issues at work, including checking emails, organizing appointments and the like. Is it productive to enshrine rigid “my time, your time” rules in legislation?

When the starting premise is that every employer is a bad employer, the wrong measures will inevitably be put in place to the detriment of innovation, personal responsibility and good employee-employer relationships.

Huge effort goes into drafting new laws but despite the research behind the ideas we have too many acts of parliament that when tested by the courts are found to be inflexible and result in unintended consequences. The best example of unintended consequence was the 1917 law forcing pubs to close at 6pm which resulted in the 6 o’clock swill. Lawmakers then did not foresee that the short period between the end of the working day and pub closing time would result in men crowded together to drink as much beer as they could before bar service ended.

Fast forward to today where there are also laws that drive the wrong behaviours and plenty with loopholes you could drive a truck through.

Our court system is overburdened. It isn’t coping with the laws we already have so we shouldn’t be contemplating adding more to the statute books that are ill defined, contain unmeasurable concepts in the name of “reasonableness” and are not enforced. In fact, the lawmakers should be looking at existing laws that are outdated and not delivering their intent. David Seymour is attempting to do exactly this in his new role of Minister of Regulation.

Lawmakers should ask if new and current laws serve us well. If not, they should be changed or abolished. Also important is consideration of what the role of government in our lives should be, and what should be left to individuals and communities. Ever more restrictive and stringent regulation doesn’t help, it detracts from the self-responsibility inherent in our society and risks the statute book replacing common sense and good behaviour.

Good law should be clear, enforceable, and routinely enforced. If proposals do not meet these criteria, we should go straight back to the drawing board. So when you next jest “there should be a law against that” be careful what you wish for.

ENDS