But Trumpian distractions aside, it’s essential not to overlook what I describe as constitutionally dubious content and the grossly flawed legislative process behind a bill that ironically promises to prioritise the rule of law and good lawmaking.
We’ve been here before, with versions of the bill trying and failing to pass the legislative checks and balances in 2006, 2011, and 2021. And yet, if enacted, it would require all current and future laws to be tested against a new set of principles, with a ministerially appointed board at the helm.
However, in my view these principles are ideologically loaded, elevating libertarian ideals of individual responsibility over collective welfare, equity, and Treaty of Waitangi obligations.
For an alternative view: A new law to get our mojo back as a country
Even if a board’s decision isn’t binding, it has the potential to influence future laws and destabilise the current constitutional framework in the process.
Belligerent approach to due process
Traditionally, you have to play fair and stick to the rulebook if you’re going to change the game altogether. Yet, an urgent Waitangi Tribunal hearing in May revealed officials raised red flags about the bill as far back as December 2023, including its selective framing and the “significant omission” of Treaty principles.
By September 2023, officials advised Seymour the bill should explicitly recognise the Treaty and that any revision should involve meaningful Māori consultation. The advice was ignored.
When public consultation began in January this year, no full draft bill was included in the materials. The documents provided were heavily redacted, contradictory, and confusing, the tribunal report read. Official Information Act went unanswered.
[As an aside, last week, new Ombudsman John Allen released his final decision on the “large volume of complaints”, finding the Ministry for Regulation was entitled to withhold redacted information. Fair point, sure, but a costly one from a resourcing “efficiency” standpoint, I bet.]
Nevertheless, 22,821 people made submissions, and an overwhelming 88% opposed the bill outright. Only 37 supported the bill, and another 39 supported its content.
Cabinet approved the bill in May, despite officials’ advice warning it could be costly, inefficient, legally inconsistent, and constitutionally risky. The final Treaty Impact Analysis? Redacted.
The Waitangi Tribunal’s conclusion was scathing: the lack of meaningful and targeted engagement with Māori, punctuated by the concealed and inaccessible nature of the consultation process, ultimately amounted to multiple Treaty breaches.
Urging the Government to “immediately halt” the bill’s advancement, the tribunal warned that proceeding without consultation with Māori would create further breaches.
Rule of law … when it suits
And so it was. Cabinet went ahead just days after the tribunal report was released. The bill was introduced to Parliament on May 19 and debated under urgency less than a week later. It’s almost comical the Finance and Expenditure Committee reportedly allocated just 30 hours for the public submissions that closed last week.
However, the recent lack of due process is no laughing matter from a well-functioning society perspective, as it coincides with the release of the Law Society’s landmark report on the state of the rule of law in Aotearoa, also last week.
Globally, the rule of law is on the decline, and New Zealand is ranked sixth in the world, according to the World Justice Project’s Rule of Law Index.
Survey responses from 416 legal aficionados and research revealed successive governments are increasingly undermining the rule of law through rushed and opaque lawmaking.
The coalition Government’s use of urgency in its first 100 days surpassed that of the past five parliaments, declaring urgency eight times to pass 21 bills through 61 stages. Thirteen bills were passed entirely under urgency.
Quoting Sir Geoffrey Palmer, the report stated: “The number of measures enacted under urgency is excessive. One is compelled to ask what is the hurry? The answer seems to be political expediency at the expense of proper legislative process”.
Death of democracy in real time
The rule of law isn’t just a legal concept; it’s the cornerstone of democracy. Laws must be made transparently, applied equally, and enforced through independent institutions. It protects our rights, promotes economic and social progress, and ensures trust in government.
The Government’s own Coalition Agreement may have promised to pass the Regulations Standards Act as soon as possible. Still, it also pledged decision-making “based on sound public policy principles, including problem definition, rigorous cost-benefit analysis and economic efficiency”.
At best, we’re seeing sloppy governance that’s wasted a lot of time, money, and energy. At worst, like a play within a play, it’s an intentional erosion of democratic norms under the guise of good law that could burn the house down.
