LEGISLATION AS CODE FOR NEW ZEALAND: OPPORTUNITIES, RISKS, AND RECOMMENDATIONS March 2021 Tom Barraclough | Hamish Fraser | Curtis Barnes ACKNOWLEDGEMENTS This report was generously funded by Te Manatū a Ture o Aotearoa, the New Zealand Law Foundation. Our thanks to the Law Foundation Board and to NZLF Executive Director Lynda Hagen. We also extend our thanks to the NZLF Information Law and PoliCy ProjeCt Advisory Review Committee and the project manager of ILAPP, RiChman Wee. Thank you to the University of Otago FaCulty of Law and the New Zealand Law Foundation Centre for Law and Emerging Technologies for providing access to library resources during this research. Thank you to the various people who have engaged with us or provided support in the course of producing this report. They have not seen the final report and any errors are attributable only to the authors. Our thanks to Nadia Webster, RiChard WallaCe, Pim Willemstein, NiCk Vaughan, Mariette Lokin, Meng Wong, Matthew Waddington, LaurenCe Diver, Dave Parry, Roopak Sinha, Joanna Pidgeon and Tim Jones for discussions during the course of this research. Thank you also to Paul MiChel, NiCk Nisbet, Jason Morris and Siobhan McCarthy for their responses to a case study shared during the research. ProduCed with funding from the New Zealand Law Foundation Information Law and PoliCy ProjeCt. MarCh 2021, AuCkland, New Zealand EXECUTIVE SUMMARY OVERVIEW AND PURPOSE This report aims to provide a basis for senior deCision-makers in New Zealand to CritiCally assess and aCt upon the potential of law-as-code initiatives. It was stimulated by the growing attention to the “Better Rules” programme, a “better rules approaCh”, and international “rules as code” efforts. From this starting point we investigated the wider field of “law as code” to assess feasibility, risks, and benefits. There is extensive researCh underpinning the many different aspeCts of this topic. Describing this research in sufficient detail would require the use of Complex domain-specific language that is only reasonably understood by those with robust knowledge of linguistics, law, computer science, and other topics. Instead, we have aimed to share key conclusions for non-experts and to justify our reCommendations. Law-as-code approaches have significant potential benefits that are supported by an extensive history of academic legal and computational research and praCtiCe. By Contrast, the Claims and aspirations of some advoCates of “legislation as code” approaches are unjustifiably optimistic about the capacity of code to have equal status to the law, or the benefits of removing legal interpretation from the way legislation works. Despite this, we identify clear opportunities with publiC and private benefits for proportionate and effeCtive use of law-as-code approaches to poliCy development, as well as the use of computational models of legal instruments. We identify two existing statutory frameworks for inCorporating both a “better rules approaCh” and “rules as Code” models into existing government administration: a. Legislation can be revised and clarified through the legislation revision programme under the Legislation Act 2019 where shortcomings are identified in legislation through a better rules approach; and b. We identify a pattern of statutory drafting that authorises identifiable people to delegate statutory powers and funCtions to “automated eleCtronic systems”, enabling computational models of the law to be deployed in defined circumstances. On this basis, law-as-code approaches should be explored further in New Zealand, partiCularly in relation to Current internet filtering legislation, and in the re-write of the ResourCe Management Act 1991. We also propose an incubator (or similar) involving both government and non-government actors. Trust, confidence and reliability in law as code approaches can be built through transparent, multi-stakeholder collaborations on use cases and publiC sharing of case studies. 1 KEY CONCLUSIONS BETTER RULES & RULES-AS-CODE DIFFER We address two reCent phenomena within the New Zealand Context that have Come to be known as “better rules” and “rules as code”. These labels have become conflated and confused. We think it necessary to maintain a distinction between these two phenomena, and we articulate that distinction in Part 2. The distinCtion is best understood by considering how Better Rules brings a service design methodology to policy development, with rules- as-code being one potential output of a Better Rules process. “Rules- as-Code” is a wider concept encompassing all things related to the capturing of rules (inCluding law) in Code. In short, “a better rules approach” is a policy development method and “rules as Code” is a topic of investigation that encompasses the full history of scholarship detailing historic and contemporary attempts to model legal systems in maChine-executable languages (code). A BETTER RULES APPROACH IS GOOD FOR POLICY DEVELOPMENT A “better rules approaCh” (disCussed in greater detail at Part 2) is a method for supporting policy development with Clear contemplation of how the policy will be implemented and delivered using digital systems. The CapaCity for poliCy, regulation and legislation to be implemented in digital systems is fundamental and only growing in importanCe. We reCommend using a better rules approaCh when it is likely that government or non-government actors will use an automated (or semi- automated) electronic system to give effect to the law. Independently of whether poliCy is eventually operationalised in digital systems, a better rules approach produces more ConCeptually coherent and logically consistent policy through the appliCation of service design techniques, and through concept modelling and computational testing. This makes the task of a legislative drafter easier because of the way a drafter is presented with a fully formed, logically Coherent policy to refleCt in legislative drafting. If a better rules approaCh is made suffiCiently open to non-government actors, it enables the poliCy, the legal instrument, and the computational model of that poliCy to be sCrutinised by a range of actors and institutions before it is implemented. This would be complemented by existing Select Committee processes, and would contribute to the production of better, more reliable policy. We identified other situations where, in substance, the key aspects of a better rules approach were being explored. This gives us ConfidenCe in the universality and essential merits of a better rules approach. 2 LEGISLATION CAN BE WRITTEN IN CODE, BUT SHOULD NOT BE In both “better rules” and “rules as Code” disCussions, there is frequent referenCe to the ConCept of “legislation as Code”, as well as the idea of “translating” law into Code. By way of illustration, we include excerpts from publiC materials around better rules and rules as code in an Appendix. In Part 3, we CritiCally assess the notion of “legislation as code” and reach our most important conclusions. We have been unable to identify anything that would prevent the New Zealand Parliament enaCting legislation that is written in Code, consistent with the prinCiple of Parliamentary Sovereignty. Any legislation produCed aCCording to the CorreCt proCedure is valid, even if the Content and effect of that legislation is morally repugnant, or its form and symboliC medium is highly irregular. Neither would Change the faCt that it is the law of the land. Other Constitutional aCtors, inCluding ExeCutive and Judicial branChes would be obliged to give effect to such a legal instrument in the usual way. However, we ConClude that for both pragmatiC and prinCipled reasons, rules written in Code (i.e. maChine-executable languages) should never be given the status of legislation. Importantly, at the level of prinCiple, enacting code creates serious constitutional confusion and risks undermining the separation of powers between the ExeCutive, JudiCial and Legislative branches of government. At a pragmatiC level, inCorporating Code direCtly into legislation would be a departure from reCent moves to make legislation Clearer and more ConCise by avoiding excessive detail and prescriptive drafting, as well as esoteric expression. Code should remain subordinate to legislation. “Translation” is not a useful concept when describing the relationship between legislation and code. Instead, Coded models are better understood as a an interpretation of what the law requires. The faCt they are Computational models does not Change this, even where parallel drafted. Further, in practice, most computational models will draw on a wide range of legal sources, and the notion that a single model will represent a single legal instrument is diffiCult to sustain. PARALLEL DRAFTING ONLY REDUCES INTERPRETATION RISKS, IT DOES NOT REMOVE THEM Some advoCates of rules as Code or better rules approaChes appear to argue that parallel drafting a legal instrument and a computational model of that instrument during the poliCy development proCess will lead to “isomorphism” between the two. In context, this appears to be understood by some as meaning a perfect correspondence of meaning between the two instruments (the law and the code) with no further need for “interpretation” or “translation” between natural language and maChine language “versions” of legislation. 3 It is largely aCCepted that perfect correspondence of meaning between maChine and natural languages is an impossible goal. Isomorphism is best understood as “traceability” between