The Regulatory Standards Bill is “dangerous” and “alarm bells need to ring”, critics of the proposed government legislation say.
Feedback on proposals that will inform the bill close tonight and some are concerned it will entrench Act Party ideology in the country’s constitutional framework.
But proponentsof the bill said it is about better regulation and more transparent lawmaking.
Emeritus professor Jane Kelsey has long opposed the intention of the legislation.
“While everyone’s been focused on many of the extreme policies the coalition Government has put forward, there’s been very little attention to the more systemic and seemingly boring things, such as the Regulatory Standards Bill,” Kelsey said.
“But alarm bells need to ring.
“The fact that this was in the coalition deal effectively circumscribes what scrutiny there can be. So there has been no effective engagement.”
The Regulatory Standards Bill is not yet before Parliament, but a discussion document is open for consultation through the Ministry of Regulation.
Up for discussion is a set of principles outlining what constituted “responsible regulation”, including rule of law, liberties, taking of property, taxes, fees and levies, role of courts, good law-making and regulatory stewardship.
Also up for discussion is a mechanism for assessing whether new laws were consistent with those principles or, if not, whether the departure was justified.
There is also a proposal for the establishment of a Regulatory Standards Board to respond to concerns raised around the consistency of regulation. It would be made up of members appointed by the Regulation Minister and would be able to make non-binding recommendations.
Feedback on the discussion document will inform the final version of the bill, which is set to pass under National and Act’s coalition agreement.
Long history
Similar legislation has a long history of previous failed attempts to make it law.
New Zealand Initiative senior research fellow Dr Bryce Wilkinson helped write a report that became the foundation for an earlier version of the bill.
He said the mess the Labour Government inherited in 1984 – “suppressed inflation, big fiscal deficits, big overseas deficits, draconian blankets, interest rate controls” – led to the idea that New Zealand needed a better regulatory constitution to prevent it happening again.
It was about making sure good regulations could pass unimpeded, Wilkinson said.
The other side was to make it harder, or have “more hurdles to jump through”, for proposed laws and regulations that weren’t sound.
“Good-quality regulation to economists like myself is one in which the benefits to people who are affected by it exceed the costs to people who are affected by it. So it’s regulation which makes people better-off.”
From a legal perspective, the protection of personal autonomy and property is important too, he said.
Regulation Minister David Seymour said the bill’s purpose is to increase transparency in lawmaking.
It prioritised individual and property rights because “New Zealanders deserve the ability to make a difference in their own lives”, he said in a statement.
“That’s how more New Zealanders can grow their businesses and create opportunities for others.”
‘Dangerous bill’
Kelsey said the Act Party’s priority for private property rights excludes balancing considerations.
“If this goes through, all of those things that might be precious to many of us, social considerations, environment considerations, Te Tiriti o Waitangi, will be subordinated, if not, deemed irrelevant, in the policy- and legislative-making processes.”
Act, with 8.64% of the vote in 2023, is using coalition negotiations to get this passed “through the back door”, Kelsey said.
“So even before we look at the content of the bill, we’ve got a travesty of democracy taking place.
“It’s basically about the protection of private property and wealth.”
Kelsey is also worried about the goal of having minimal regulation of everything, highlighting the legacy of leaky homes, the deaths at Pike River, and the lack of regulation around finance companies or aged care facilities.
Melanie Nelson is a researcher, writer, analyst and cross-cultural consultant who has been publicising the bill online.
She is also concerned about the lack of a “democratic mandate” for “constitutional changes of this magnitude”.
It is a “constitutional straitjacket” and a “dangerous bill”, Nelson said.
“The Regulatory Standards Bill would shift most of our laws, regulation and government interventions to align with the right-wing libertarian ideology of the Act Party.
“So this bill really supports the ‘haves’ and makes it much harder to improve the lot of the ‘have-nots’.”
The bill would also mean things like the environment, public interest, social issues, and Te Tiriti o Waitangi would be ignored when laws were being made, she said.
Wilkinson said it was about allowing balance and offsetting considerations.
“What’s the balance? That’s an open question. It’s not an ideological question, although people’s preferences or views will come into it, so you can’t expect everybody to reach the same conclusion,” he said.
He highlighted the country’s housing shortage and section 85 in the Resource Management Act which he said allowed for the “open-ended ability” to block housing developments “without having to pay compensation for the lost value to the community”.
“The people blocking housing development are ‘not in my backyard’ people.”
Those people were not being confronted with the cost of a housing shortage, he said.
Treaty considerations
A preliminary Treaty Impact Analysis conducted for the proposed bill noted it did not include a principle related to te Tiriti and its role as part of good law-making.
“Meaning that the bill is effectively silent about how the Crown will meet its duties under the Treaty/te Tiriti in this space.
“While this does not prohibit the Crown complying with the bill in a manner consistent with the Treaty/te Tiriti, we anticipate that the absence of this explicit reference may be seen as politically significant for Māori and could be perceived as an attempt by the Crown to limit the established role of the Treaty/te Tiriti as part of law-making.”
Seymour said if the bill had existed in early colonial days, “the governments of the day would have been required to follow better processes instead of those that led to much of the Māori grievance that is with us today”.
Nelson criticised the consultation period falling over the summer holidays and at the same time as the Treaty Principles Bill submissions.
She also pointed out consultation opened the same day Hīkoi mō te Tiriti arrived at Parliament.
That showed a lack of commitment from the Government to ensure the public was aware of the proposal and its significance, and to seek genuine feedback, she said.
“It really appears to be an attempt to restrict public awareness of it, because they know it’s likely to be very unpopular with the majority of New Zealanders.”
The Office of the Clerk said other bills had been open for submission during the summer period in previous years.
“The timeframe a bill is open for submission is decided by the committee considering it, taking into account factors such as the date the bill is referred to the committee and the date the bill is due to be reported back to the House.”
As the bill is not yet before Parliament, it has not been assigned a committee.
Seymour announced “next steps” in a press release on November 19, opening the consultation period.
