Since we don't learn about it in school; or on the telly - or on Tik Tok? On purposes & principles ... & science.
(P.S. - always happy for input by those with greater expertise, so nudge me if I'm incorrect)
Are we taught such things? I don’t think so, that’s why I’m putting this here.
The release and deployment of technologies – biological weapons, anthropogenic emissions, surveillance technologies - arguably represents humanities most existential threat. The harm we see across nations now from the exponential rise in technologies produces states of chronic disease, mental illness and disability that arguably exceeds current climate related harm.
These risks are vastly underrepresented in modern media where anthropogenic risks predominantly revolve around carbon emissions.
Our laws never seem to get to the bottom of the issue. Our legislation somehow not hitting the ‘spot’ - so as to steward and protect health? It never seems appropriately anticipatory, our environment, our health and our freedoms appear in an increasingly precarious state.
Yet our laws, our regulatory hooks catch communities – through mass medicalisation, carbon guilt, anthropogenic pollution, chronic illness and surveillance. But they never seem to entrap big business. The contradictions are extensive. Individuals, small business and farming communities must downsize and comply to prevent pandemic and climate change calamities.
However - the projected compound annual growth rates (CAGR) for the biometrics, pharmaceutical chemicals, biotechnology, ready-to-eat and processed food market, identity verification solutions and services and chemicals are grandly impressive.
The projected profits far exceed growth rates, for say, a basic item that is understocked in most family homes - vegetables. Despite the kilometres travelled, the waste, and the offtarget harm of this commercial stuff. These corporations strategically lobby to increase market access. Increasingly public-private arrangements steward the public to use a product, - or be exposed to a product - on a daily or weekly, or monthly basis.
How can and should our governing laws act to protect ordinary Kiwis, to protect their health and protect the environment?
What we require is legislation that demands that officials and regulators actively work to protect health, protect civil society. But what we end up with, are drippy, weak laws - or stronger laws that are somehow eroded and fail to have any regulatory teeth.
But when we fail to institute ethical norms, fail to fund independent science (and knowledge), and fail to resource inquisitorial regulators, we can’t know what is happening and we can’t adopt best practice. We produce a state of ignorance.
We can’t act on what we don’t know. This Substack briefly summarises why and how our laws seem to entrap people, but not big business.
DEMOCRATIC PURPOSES
Public officials (civil servants) get their power from the legislative statutes that grant them their power. The statutes, or Acts of course, are proposed and passed by Parliament.
By convention, a statutory purpose is placed near the top of statutes, creating an over-arching compass. Purpose provisions can state principles and rules to help assist with the interpretation of legislation, help shorten legislation to ensure common themes are not endlessly repeated. Purposes also promote consistency in the language and form of the legislation. Some examples:
Health
From what I understand, the Official Information Act has great purposes, but it is actively gamed by Ministers & officials, and the Ombudsman has only weak powers.
The Pae Ora (Health Futures) Act’s (above) purposes, and the Health Act’s (below) function are great - to protect, promote and improve public health.
The Health Act 1956, instead of having a purpose, has a function of Ministry:
Unfortunately the purposes of our main health laws contain irreducible contradictions - there are no requirements to increase access to safe and nourishing foods that prevent chronic and infectious disease. No demand that officials look at the environmental determinants of disease which far exceeds any genetic determinants.
Poor food is the primary driver of complex comorbid disease. But without higher order obligations, officials functioning inside the health sector inevitably focus on equity of access to medical treatment. This can never protect health.
The market failure here (suppressed prices of shelf-stable hyperaddictive processed foods) could be specifically addressed in the legislation - it is an upstream issue. The government refuses to take steps to increase access (affordability) to health, unprocessed, vegetables, fats and proteins; refuses to acknowledge the relationship between mental illness and nutrition status; and publicly address the addictive potential of processed food.
For example, we can see that health should not only be promoted, but it should be protected and improved by Ministry officials. Simply managing and mitigating chronic disease through medication and treatment is not a requirement at a high level for Ministry officials. But ultimately, this is by default what occurs…
Digital Identity Services Trust Framework Bill
Outside the health system, there is a new Digital Identity Services Trust Framework Bill which hasn’t yet been enacted.
Here’s a question: should this Bill instead state at high level - stewardship of a Aotearoa New Zealand’s digital identity system so as to ensure that digital identity services protect the rights, freedoms and health of the New Zealand people?
Yes - or no? … Then the legal framework and governance and accreditation functions.
Back to practicalities…
Royal assent and delegated legislation
Once an Act receives Royal assent (the approval of the monarch) - it comes into effect. All subsequent legislation (that can be produced by the officials away from Parliament’s gaze) must then be consistent with the overarching purposes/and or principles.
As well, all further subordinate (also known as delegated or secondary) legislation, produced using the statutory powers of the Act must be consistent with the overarching purposes. However, because of the Hon David Parker’s work a tonne of legislation now can quickly be passed without Parliamentary scrutiny.
DEMOCRATIC PRINCIPLES
Principles embed wider moral and ethical obligations, or considerations, into law, theoretically, directing officials to consider ethical grey areas. But we see less and less of overarching principles and purposes, with principles instead resituated instrumentally, lower in legislation.
When our statutes lack good overarching directives, particularly in socio-scientific environments, the production of policy and the development of legislation then tends to ruling by black and white technical concepts.
Health Act Principles
The principles in the Health Act for the infectious disease events were well thought out - because these principles took into account the potential for an infectious disease event, such as HIV/AIDS or SARS-CoV-2 - to have different risk profiles for different people. The law imposed an obligation that officials acting under the powers of the act should deal with infectious disease outbreaks proportionately to individual risk.
Digital Identity Services Trust Framework Bill
As you can see in the purposes section, for example, the Hon David Clarke’s Digital Identity Services Trust Framework Bill establishes a governance board and accreditation functions. The purpose is establishing the board - but how do they decide in the best interest … of whom? How far should the governors go to protect the public interest?
Working in uncertain environments requires broader principles to help guide decision-making. Importantly, Te Tiriti is included, of course. But what we can see in the image below, is that the principles are lower order. The Bill imposes technical principles which really, can’t give the governers foresight, or prevent abuse of power.
As you can see, it contains a purpose to deal with complaints and offences so as to promote public confidence. Why is this not higher? Why is there no obligation to act so as to promote public trust?
Secondly - we can see principles concern individual complaints - not preventing wider abuse of power. How can the prospective legislation promote trust (we’re talking about $9 billion worth of digital identity business here) - when the power differential between the individual and the service providers is so vast?
So the only way it is overseen is through complaints, not through active, investigative regulators? As I reckoned last week, this is a crappy Bill.
If the purposes and principles are narrow, and if the regulators lack teeth, will the Act achieve its’ stated aims, and will the public interest be protected?
The Parliamentary Counsel Office (PCO) drafts our legislation - but the public cannot conduct OIA requests to understand information flows between the PCO and outside entities. Another blackbox.
DEMOCRATIC BACKSLIDING - NARROW GOVERNING MECHANISMS
Democratic backsliding occurs when policy is deployed at scale, and where the information directing policy, as well as the policy outcome, consistently privileges political and financial interests. Excess power and influence aren’t something that pops up by surprise, power is mediated by financial resources, access to the corridors of power and a receptive government culture. Power exerts influence at multiple scales and is shaped across time as relationships with powerful (and resourced) interests are nurtured to co-evolve.
When legislation concerns the governance of science and/or technology – such as medicine, biotechnologies and newer digital technologies, all too frequently, there is a narrowing of governance obligations.
Far too often it is the stakeholders - the IP owners - their lobbyist affiliates - who are involved in policy development and then supply of information and evidence that supports deployment of their technologies.
When legislation fails to require officials to anticipate and address built in wickedness, the opacity of risk that is unseen, the distinct conflicts of interest - it fails in the public interest.
How and what governments value is closely associated with the ‘scope’ established by the construction of a new Parliamentary Bill, or by the Terms of Reference that guide decision-making committees. If the expertise of the committees are narrow in focus the policy will likely be narrowly crafted also.
Interdisciplinary evidence that might promote uncertainty can then be excluded, because it’s not a statutory obligation. Claims by publics concerned about ethical, and anticipatory rights-based issues can then be excluded, because they’re ‘not in scope’.
Downshifting of principles and purposes, remove the ethical and moral baselines that help us deal with uncertainty and complexity. Uncertainty demands that we take time to judge what we value. Biometric identification systems have dual purpose potential, and they are susceptible to function creep. Without restrictions on how much data will be gathered, it becomes impossible to determine the long-term impact of these systems, particularly when they risk people’s rights.
Such scopes do not consider how current policy might diminish trust and destabilise democracy over time, perpetuate pollution and disease, while furthering the political and financial interests of commercially aligned institutions.
Principles are something that are lodged much lower in legislation.
DEMOCRATIC BACKSLIDING – SCIENCE AND TECHNOLOGY.
I’ll say it again… For thirty years, science policy has directed funding to scientific research that can be identified by funding committees as excellent, and which has potential to produce an innovation, a product, process, good or service.
Innovation research is associated with the development of intellectual property (IP) and patents, which are designed to promote economic growth and drive income (such as through royalty payments. Excellent science is more easily associated with single discipline science. It is difficult for funding committees to identify excellence when interdisciplinary work is being undertaken across highly complex disciplinary fields.
As I have discussed, the shaping of science policy post-2000 has directed the bulk of RSI – research, science and innovation – to develop applied innovations that can be patented. Asymmetrical research trajectories constantly favour IP-related development over interdisciplinary research exploring the socially and environmentally driven causes of disease.
The focus on innovation directly produced short term (applied science) funding environments that produced barriers to longer term curious, exploratory, basic science research. In highly competitive funding environments, funding committees are more likely to select single discipline research proposals which they can easily evaluate, and can be seen to result in excellent, innovative discovery that would be financially responsible.
Simultaneously, governments encouraged public-private partnerships and cofounding arrangements for innovation development across Crown Research Institutes (CRIs) and universities. Arrangements often ensured that the industry partner would get first call on the resultant technologies. These shifts have produced contradictory environments, where ostensibly public good research facilities are contracted by the private sector.
This science focus has driven institutional ignorance. In such environments it is unlikely that these institutes will produce uncomfortable knowledge – which might contradict the principles and priorities of their institutional partners.
In the void, there are few, if any interdisciplinary experts who are willing to enter contested environments and criticise policy-makers, or big business. They lack the scientific expertise, but they also have worked in environments for which producing an innovation, an economic benefit, is the norm. For these researchers, going outside this cultural frame, is seen as politically controversial.
These shifts have altered the culture of the scientific enterprise. Of course, in New Zealand, our science and innovation system is not independent, or allied with education – it’s funded directly through the Ministry of Business, Innovation and Employment.
Therefore, in this environment, when researchers explore how risk manifests, such as how environmental exposures drive IQ loss or chronic disease; or whether technical shifts embedded in legislation presage a loss of democratic norms, their work is viewed as directly political.
When they advocate for new science, such as broader biomarker studies that demonstrate harm, such as inflammation, endocrine disruption or oxidative stress - their work is directly political.
For sociologists, the absence of broad disciplinary enquiry – where economic growth is prioritised - is eminently political in its aims.
The absence of law that should require officials to protect the public interest, that fails to build in mechanisms of inquiry in order to ensure adequate foresight, is just, as if not more, political in its aims.
#Technocracy.