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MASTER CLASS david vs goliath DAVID VS GOLIATH The best chance of solving public law problems is to use a number of guiding principles, writes Mai Chen in her new book, The Public Law Toolbox. "FIRSTLY," WRITES MAI, "DEALING with government does not have to be David vs. Goliath. "A common concern of clients seeking advice is the imbalance of power in dealing with the government. The government has powers that no private individual has to make law and to exercise public power. They can use taxpayers' money and have government departments and agencies to advise them. The government has the power to tax and to require the provision of confidential and commercially sensitive information. The government also has taxpayer-funded lawyers (Crown Law) to defend itself against legal challenge. Governments have unique vulnerabilities, however, there are more ways to attack their decisions than those made in the private sector. Legal obligations usually constrain the exercise of public power, and breaches can be challenged in court, or complaints made to public agencies. The government is also subject to the Official Information Act 1982 and is accountable to Parliament, to constitutional watchdogs and ultimately to the electorate through the ballot box every three years. These checks and balances make the legal, administrative, reputational and political risks very different for government actors than for the private sector. Citizens and businesses also have the public law toolbox to help resolve government or regulatory issue in every area of the economy as well as commercial law remedies. The toolbox can also assist those wanting to influence policy and law reform issues for business or democratic reasons. So while government's influence over the lives of citizens has expanded with growing regulation and laws, citizens now enjoy a greater ability to influence and to challenge government. For example, social media has democratised the lobbying process through online petitions and Facebook or Twitter campaigns against policies and laws. Government and its officials are held to a higher standard than ordinary citizens; they can be publicly criticised even if they act within the law. These unique vulnerabilities, together with the availability of the public law toolbox to those interfacing with government evens out, to some extent, the power imbalance between the government and its citizens and business. Secondly, timing is critical. 44 | www.hermagazine.co.nz Most clients do not understand that government works to yearly and three-yearly (election) timetables. The longer you leave a problem, the more resources will be needed to achieve a policy, legislative or administrative outcome with a decreasing likelihood of success. Conversely, there are occasions where delaying action until a more propitious point in the electoral or budgetary cycle can be crucial to success. Timing is also important for lobbying. You have to know how the system works and what is going on in the system to understand when your advocacy on policy and legislative decisions will have greatest effect. There is also a lead- time in government that needs to be factored into dealing with the government. There is a pipeline that policy and legislation has to travel through, and processes and authorisations that need to be obtained. FIND A COMMON NATIONAL OR PUBLIC INTEREST. The most important determinant for success in fixing a problem with government is not who you know, as clients often think, but whether there is a shared national or public interest for fixing a problem. Politicians and officials have to be able to justify policy or law reform, or expenditure of public funds to the electorate. The skill is in finding a shared interest with government in having a problem resolved. The common interest principle also allows David to get Goliath to help rein in competitors, by convincing the government to regulate a competitor if it is in the national or public interest. Thus, David co-opts Goliath to fight other Davids. A FURTHER PRINCIPLE IS BE WILLING TO COMPROMISE Being able to compromise with government is a strength; not a weakness. Government is large and powerful and there are limits to fighting city hall. It is the role of government to balance many differing competing interests and to provide a response that is in the national interest. Inevitably, that means that some citizens and businesses will be disappointed.