New Zealand Engineering 1998 October

Regulatory Reform

Talking the talk and walking the walk

As George Bernard Shaw said, every profession is a conspiracy against the laity. And as with all good conspiracies, each profession has its passwords, its specialised language known only to the initiated. How many engineers can deny a sense of secret superiority at knowing what is really meant by "stress and strain"? Lawyers feel much the same about "vested interests".

A significant part of any professional's training consists of learning the specialised vocabulary of their profession.

What brought that to mind was the August 1998 issue of the New Zealand Law Journal, and particularly the juxtaposition, on facing pages, of the attitude of the Minister of Commerce, the Hon John Luxton, to commercial law reform and the attitude of the Law Commission to section 86 of the Fires Prevention (Metropolis) Act 1774.

Hang on a minute, I hear you say, in 1774 there were no law courts in New Zealand, no written law, and certainly no metropolis. Very true, but when written law came to New Zealand it did so in the form of the law of England as it was on 14 January 1840. Of course, that law has changed a great deal since then, but a great many provisions of English Acts still apply in New Zealand, including such landmarks on the road to democracy as Magna Carta (1297) and the Bill of Rights (1688). The same applies to the common law, the law that is embodied in judicial decisions as opposed to Acts of Parliament. Thus New Zealand law is the outcome of centuries of English experience built on and modified by 158 years of New Zealand experience.

Herculean task
What section 86 of the Fires Prevention (Metropolis) Act 1774 says, in its 18th century language, is that the owner of property from which fire spreads can be liable for the damage caused only if the fire started or spread as a result of his or her negligence. And quite right too say I (and, far more importantly, says the Law Commission).
So there is the Law Commission supporting the retention of an 18th century English law, but on the very next page of the New Zealand Law Journal there is the Minister of Commerce announcing plans to "clean up the existing law and ensure that new law is both necessary and well designed". In the Minister's view "the current body of law has been accumulating for a long time, and there are connotations of the Augean Stables".

The Minister's concern is that current laws are imposing excessive and unnecessary compliance costs on New Zealand in general and on business in particular. As he says, compliance costs include "the hidden cost of understanding what you have to comply with". Therefore, he wants laws to be written in clear words, and no doubt he would dislike the 18th century wording of the Fires Prevention (Metropolis) Act 1774 as much as he says he dislikes the word "appurtenances" in the Innkeepers Act 1962 and the word "replevin" in the Distress and Replevin Act 1908. The Minister's point is well made, although no doubt he gave those particular examples more for humorous and dramatic effect than as serious concerns, just as he mocked the requirement of the Abrasive Blasting Regulations 1958 for "workers to name their hats" (actually a requirement to ensure that once a protective helmet with integral air supply has been used by someone it must be disinfected before being used by anyone else).

Of course, no-one could graduate in law without having "appurtenance" and "replevin" in their vocabulary, but the Minister is not concerned with lawyers, his concern is with the people who must comply with the law.

Thickets of incomprehensibility

To that end, he has instructed his officials to review certain Acts, although not the Innkeepers Act nor the Distress and Replevin Act nor even such thickets of incomprehensibility - to all but specialists - as the Property Law Act, with its baffling provision that the rule in Shelley's case is abolished, nor the Land Transfer Act, with its references to profit à prendre, messuages, and both corporeal and incorporeal hereditaments. Presumably the list of Acts for review reflects the assignment of responsibilities between different government departments; it is unfortunately impossible to envisage any kind of law reform which will eliminate turf wars between civil servants.

Here, I must declare a personal involvement: one of the Acts being reviewed is the Building Act, and my employer, the Building Industry Authority, devotes a large proportion of its resources, including my time, to reducing the costs of compliance with that Act and its Regulations. It does so by general education, by specific advice, and by making recommendations for amendments. I am sure I speak not only for myself but also for the Authority in welcoming an outside view of how further improvements might be made (and in being duly thankful that the Minister's officials include some of the few professional engineers still in the public service).

Obviously, it is impossible to disagree in principle with the concepts of law reform in general and of reducing compliance costs in particular. However, it is only too easy to be apprehensive about how those concepts are going to be applied in practice. In particular, whether the baby of sensible law (in some cases a decidedly elderly baby) might be thrown out with the bathwater of specialised language.

After all, is it necessarily true to say that in order to understand your legal obligations you must understand every word in the Act of Parliament which imposes those obligations?

Most of us have bought houses, almost always with the help of a mortgage, and most of us have a very clear understanding of the corresponding obligations whether or not we have studied the relevant provisions of the Land Transfer Act and the Property Law Act. We all pay income tax, but very few of us have read a word of the Income Tax Act. Are we any the worse for that?

On the other hand, if you are in the abrasive blasting business then you really ought to be familiar with the Abrasive Blasting Regulations (which I found to be old-fashioned but not particularly difficult to understand, and I have never blasted an abrasive in my life). If you are an engineer who designs buildings then, in my view, you really ought to be familiar with the Building Regulations (although from the inquiries I receive a surprising number are not) and have at least a nodding acquaintance with the Building Act.
Those who do talk the talk, in the sense that they understand the legislation that affects them, should also be prepared to walk the walk by contributing to the reform of that legislation.

That contribution is clearly necessary, because although the Minister's intentions are admirable it is chilling to see the extent to which he appears to be relying on his officials and appointees. No doubt they will consult as widely as they consider necessary, but that might not be enough.

I strongly recommend, therefore, that engineers should seize the initiative by taking a good look at the various Acts and Regulations with which they need to be familiar in the course of their professional practices. In concert with their fellow practitioners, possibly under the auspices of the Institution, they should identify provisions which they consider to fall short in respect of effectiveness, efficiency, equity, transparency, and clarity. It might well be that the reform of those provisions is already in hand (as it is with several provisions of the Building Act), but if not then engineers should bring their concerns to the attention of the responsible Minister and the Government as a whole (if that is an appropriate term in today's political climate).