Tess Newton Cain: We need a new law about kava … or do we?

Kava Act 2015 amendment … “In most cases we don’t need a new law or new powers; what we need is to enforce the ones we already have.” Image: SBS

OPINION: By Tess Newton Cain in Port Vila

There have been a couple of stories recently in Vanuatu about kava exports and one of the questions that comes up is monitoring exports to make sure that the material that is leaving the country is of the right standard. The following extract from one such story stood up and waved a big red flag in my face:

“While the existing law already provides us with legal power, we need the extra legal backing to put stricter control measures against farmers and exporters and other people for that matter, in particular owners of kava bars who sell ‘makas’ to the exporters.”

This is a quote from the Director of Biosecurity and the “extra legal backing” he is talking about is a 2015 amendment to the Kava Act that has yet to be gazetted. I have no doubt that the amendments to the Kava Act are relevant and important, especially in light of renewed interest in the product overseas.

What I am concerned about is referring to a delay in the availability of new powers as some sort of excuse for enforcing ones that already exist.

I am a lawyer by training and so people often look quite surprised when I answer the question “do you think we need a law to deal with that?” with something along the lines of “probably not”.

Don’t get me wrong, there are definitely areas of the law that need to be revised, to make them more appropriate to modern day circumstances. But in most cases we don’t need a new law or new powers; what we need is to enforce the ones we already have.

It’s quite simple: if you do not have enforcement, you will not develop a culture of compliance. Sure, some people will comply with the law because that is their nature, or it reflects how they have been brought up and educated.

Complying with laws
Some people will take care to comply with laws because if they don’t they may be deported.

But for most of us, knowing that those with power (police officers, customs officials, biosecurity staff etc.) will exercise it and if they do, it will likely result in something we won’t like, is a key driver of making sure we are doing the right thing.

Law enforcement serves several purposes, one of which is deterrence. Enforcement by those in authority deters people from breaking the law. Making enforcement visible is one of the best forms of “awareness raising” there is.

The French have a term for it “pour encourager les autres” – when people around me see the law enforced against me, they check their own behaviour to make sure the same thing doesn’t happen to them.

A particular subset of this topic is around collection of fees, taxes or fines. If a state authority, such as a ministry, is putting forward increasing a fee or a tax, we need to look beyond the headline. If enforcement is weak, an increase of this type means that those of us who comply with the law are being penalised and are in effect subsidising those who don’t pay and are not made to do so by those in authority.

Again, if you want a culture of compliance you need to develop a culture of enforcement.

In late 2015, we saw the successful prosecution of 15 MPs for bribery and they were subsequently found guilty of breaching the Leadership Code. It was a landmark for good governance in Vanuatu, and throughout the region.

Enforcement needed
It did not require the creation of any new laws. What it took was for all the relevant players (police, prosecutors, courts) to enforce laws that have been around for quite some time.

Over the last few years, we have seen the amount of VAT collected rise significantly. That is not because the law has been changed, but because the VAT Office has worked to improve its enforcement procedures. They are now looking to do something similar in relation to collection of import duties. The law hasn’t changed, the culture of the organisation has.

So, next time you hear someone such as a politician or a bureaucrat or (my particular favourite) a “technical adviser” say that what is needed is a new law or a new power or an increase in a fee or penalty, it should prompt you to ask some questions.

What laws or powers already exist to deal with this issue? Are they enforced properly? Will these new measures be any use if no one enforces them? And maybe if you start asking these questions, others will be encouraged to do so as well.

Tess Newton Cain, is the principal of TNC Pacific Consulting. This commentary was first published in the Vanuatu Daily Post.