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Govt's legal advisors criticise rushed exploration ban process

Tuesday 30th October 2018

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Consultation on legislation to implement the government’s planned ban on new offshore exploration should have been wider given its potential for “significant environmental, economic and societal impacts,” the country’s independent legislative advisor says.

Consultation on any bill usually includes a “pre-introduction” phase which includes subject matter experts, industry, consumers, interest groups and often the public. Post-introduction consultation usually follows through the select committee process.

“Both stages must combine to mean that consultation is robust, meaningful and effective,” external lawyers on the government’s Legislation Design and Advisory Committee said in a submission to Parliament’s environment select committee.

“It helps to ensure the legitimacy of the legislation in the eyes of the public and those affected. An effective consultation programme can increase public acceptance of the legislation, increase compliance with it and lower the administration costs of implementing and enforcing it.”

The select committee yesterday reported the legislation for the ban back to Parliament after receiving more than 2,300 submissions. The bill to effect the ban announced in April was introduced in late September, and open for submissions for two weeks. The government has claimed the urgency was needed to ensure new onshore exploration blocks can be offered next year, though the oil industry has rejected that as a reason for a hasty process.

In its report, the select committee acknowledged how split submitters were, with many wanting permits revoked and onshore exploration halted. Industry and others warned the ban would reduce security of gas supply for power generation, and potentially increase emissions by delaying the local shift away from coal use and by reducing production of methanol, which is increasingly used internationally as a low-emission fuel.

They also acknowledged the number of submitters, including many iwi groups, that had criticised the truncated consultation process.

The National Party minority on the committee said the ban is “retrograde step” for the country’s broader climate change objectives and will be reversed. The bill is due for its second reading on Thursday.

The Legislation Design and Advisory Committee reports to the Attorney-General. It was formed in 2015 to help improve the law-making processes across government departments and agencies and ensure they meet fundamental legal and constitutional principles.

It comprises senior legal and policy advisors from Crown Law, the Parliamentary Counsel Office and other major ministries. An external subcommittee, also appointed by the Attorney-General, comprises senior barristers and partners from many of the country’s major law firms and senior legal academics.

The external subcommittee’s submission was solely on the bill’s process, rather than the government’s underlying policy to ban new offshore exploration.

It said the adverse consequences from the significantly limited pre-introduction consultation - evidenced by the Ministry of Business, Innovation and Employment not being able to consult with industry on the ban - probably can’t be remedied due to the limited timeframe of the subsequent consultation.

The committee said the bill “is not minor in its intended effect” and nor is it so urgent that an extra week or two could not have been added to the consultation process.

“The background documents provided publicly with the bill do not contain a sufficient explanation of why such time limitations and analytical constraints were imposed.

“The fact that a political decision has been made cannot be equated with meaning that pre-introduction consultation ought to be tightly circumscribed. Were that so, many bills would have little pre-introduction consultation.”

The committee had recommended public submission timeframes be extended to enable wider input and to ensure all relevant issues were identified.


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