As the Regulatory Standards Bill goes before a select committee, Seymour responded to some of the criticism. Video / Mark Mitchell
Opinion by Thomas Coughlan
Thomas Coughlan, Political Editor at the New Zealand Herald, loves applying a political lens to people's stories and explaining the way things like transport and finance touch our lives.
The Finance and Expenditure Committee heard submissions on the Regulatory Standards Bill this week.
The government is committed to passing the bill, which is included in the coalition agreement between National and Act.
Most submissions received by the committee oppose the bill.
The diplomat Murray Hewitt, our very own Sir Humphrey and perhaps New Zealand’s best-known public servant the other side of Ashley Bloomfield, famously moonlighted as manager for the band Flight of the Conchords.
One of his singular achievements in this endeavour was booking a Central Park gigfor the band at the culmination of a tour – a feat of diplomacy up there with the very best.
When the gig arrived, bandmates Bret and Jemaine found themselves hunched under a rotunda somewhere in Newark – a different state to the Central Park.
Murray’s explanation: he promised a gig in “a” central park in Newark, not the Central Park in New York.
Hewitt, the fictional diplomat, and Winston Peters, the real life one, have precious little in common, but Act leader David Seymour fired a warning to his colleague across the Cabinet table this week over the NZ First leader’s wavering support for the Regulatory Standards Bill, just in case Peters had been taking notes from his fictional public service subordinate.
Peters and his colleague Shane Jones have floated making changes after the bill returns from select committee and then passing it, as promised in the coalition agreement.
Sniffing a plot to water the bill down before it is passed, Seymour went public this week to remind his partners that the coalition agreement commits them to passing “the” Regulatory Standards Bill, not “a” Regulatory Standards Bill.
It won’t come to that (probably) – the polls are too close to risk an election, particularly one triggered by internal instability. But the fact it even needs to be said is an example of how fraught things have become.
In the early days of the coalition, to everyone’s surprise, it was relations between Act and National that were the frostiest, with National’s insistence on having its way rankling Seymour and Act, who believe that way of thinking is a hangover from the first-past-the-post era.
Now it seems a vector of conflict has opened between Act and NZ First too, with both sides having a different view of this Government’s kaupapa: Act is willing to risk short-term unpopularity, even losing an election, for long-term foundational change; NZ First is not.
Acting Prime Minister David Seymour says the coalition is committed to passing the Regulatory Standards Bill. Photo / Mark Mitchell
The tension in the Cabinet room is nothing like the inferno of anxiety burning away over the Finance and Expenditure Committee’s investigation of the bill held over Zoom this week.
Has there ever been a select committee like this?
Technological changes at Parliament, a new era of social media politicking, and profound ill feeling against the Act Party after the Treaty Principles Bill have conspired to turn what might have been a fairly bland and technical few days of hearings into something of a circus.
The bill sets out principles of “good” regulation and requires ministers to assess legislative proposals against those principles, although it does not bind their hands in any way.
It also creates a Regulatory Standards Board, appointed by the Minister for Regulation (though members would require Cabinet approval), that would independently decide whether legislation complied with the principles. The board can recommend changes, but that’s where its power ends.
The bill has a retrospective interest, meaning existing regulations will come under its gaze too.
The objectors fall into two main camps: the first thinks the bill is a colossal waste of time and resource, unnecessarily ideological and will, at the margin, hamper but not block “public good” regulation.
As Seymour’s own Regulations Ministry and the Legislative Design and Advisory Committee have said about the bill, it duplicates the work done by Regulatory Impact Statements, the Legislative Design and Advisory Committee, and Parliament’s Regulations Review Committee.
The principles themselves are not universal and are more accurately described as Act’s principles of good regulation. They’re not as contentious as you may think from the public outcry; they’re more liberal than neoliberal, but if Act wanted this bill to last beyond the first 100 days of the next Labour Government it might have included a Treaty clause and a nod to collective rights.
Former Revenue Minister David Parker passed a slightly less powerful Tax Principles Reporting Act in the last Parliament. These principles were still mostly left of centre, but they were consulted on in a bid to form some consensus before the legislation was passed (like much consultation, it was waste of time — the law was repealed in just three days less than a month after the coalition took office).
These criticisms have been made in submissions, public commentary and in a polite but bloody Passchendaele of keyboard warfare in the Newsroom comments section. Their proponents are familiar faces on the select committee circuit, Wellington academics and lawyers associated with Victoria University, Jonathan Boston, Eddie Clark, Graeme Edgeler, Dean Knight and Sir Geoffrey Palmer.
To somewhat oversimplify: the conundrum of the bill, in the view of these people, is not that the bill is a powerful constitutional innovation rushed through under urgency, but given its only real power is to shame ministers into being better regulators, it’s unlikely to do much more than create a lot of unnecessary and unread paperwork.
Former Prime Minister Sir Geoffrey Palmer is a vocal critic of the bill. Photo / Mark Mitchell
A Government, using Parliament, will still be able to do almost anything it wants at any speed it wishes, with unread regulatory standards declarations filed neatly beside their section 7 Bill of Rights counterparts and their “thanks, but no thanks” advice – the paper-thin checks and balances of our “yeah, nah” constitution. Politics will always trump paperwork.
As for unintended consequences, the biggest unintended consequence will be what the coalition does with all this advice. Ministers in a hypothetical second term may find themselves spending much of their days arguing with the Act party over why they’re ignoring a regulations report arguing for change to this or that regulation.
As an exasperated Boston described the effect of the law on a future government: “why would multiple ministers want to make themselves look stupid not just once, but repeatedly, every year from here on potentially until eternity?”.
Members of this group are concerned the bill will make certain things such as public health and environmental regulation more difficult, but are clear-eyed about the fact that the bill doesn’t force this outcome. Power still rests with Parliament and ministers.
The second camp of critics has a slightly wilder flavour. The group would include popular lawyer Tania Waikato, who is associated with the Toitū Te Tiriti group, Dame Anne Salmond and Te Pāti Māori’s social media accounts.
Waikato said the bill would “entrench… far right political views” into the fabric of the country via a “regulatory constitution” and its passage would raise “significant red flags about the introduction of fascism to this country”.
While Salmond wrote in Newsroom that the law would “tie the hands” of the state if it wished to regulate “private activities or initiatives that create public harm” (like smoking), by “requiring” those who benefit from laws or regulations to compensate others for the losses of profit that may arise from such regulation.
Te Pāti Māori, meanwhile, took to Instagram claiming the bill would let judges “strike down Māori-focused laws”.
The anxiety arising from this criticism was pictorially represented by submitter Annie Collins. She drew a stick figure Minister for Regulation, Seymour, sitting atop the flow chart of state, vaguely resembling, in pixelated Zoom form, the famous frontispiece of Thomas Hobbes’ Leviathan and held it aloft to the committee while voicing her fear the bill would lead to “international corporations suing us”.
The correctness of Waikato’s critique is a matter of taste. The principles are certainly right of centre but it’s a stretch to link the bill to anything fascist.
Salmond’s criticism is more straightforwardly incorrect. A principle of the bill is that those adversely affected by regulation be compensated, but as with everything else in the bill it doesn’t force the Government to compensate anyone for anything.
Some in the first basket of submitters noted the principles may burrow themselves into our laws through the courts. The Legislative Design and Advisory Committee also noted courts may “read in” the principles when making decisions in the way the Bill of Rights has been “read in” over the past three decades, but this bill specifically excludes allowing companies to sue the government.
For those of the Act persuasion, there’s also a whiff of hypocrisy here – only a few years ago, during the pandemic, these sorts of attacks were swiftly labelled misinformation in the media and the wider public.
There is a real sense on their side that public enforcement of the truth has a partisan bias. Act is taking things into its own hands, with unedifying attacks on Salmond and other critics as suffering from a “derangement syndrome”.
The challenge for Parliament is that the critiques of dubious factual merit are the ones that appear to be getting most pick-up.
Pity Labour’s MPs on the committee, opposing the bill for reasonable and justifiable grounds, but missing out on the attentional cut through garnered by the orgy of unfounded anxiety spread by their benchmates and their supporters.
One of the challenges faced by the committees is the sheer number of submissions. Nothing can be done about that – reducing people’s right and ability to participate in democracy is a far greater evil than maintaining the genteel lie that all of these submissions are properly read and listened to.
A bigger challenge is people using their oral submissions as a stage set for content creation rather than engaging with the bill in any substantive way (Waikato’s “fascism” submission falls into this category).
This is a new problem. The streaming of committees only began during the first term of the Ardern Government and regular streaming of all public committees only began in the last Parliament.
The streaming means submitters regularly clip up their appearances for use in political campaign videos. There’s always been a performative element to select committees and campaign groups have, for decades, banged their particular drum in submissions that are only tangentially related to the bill in question.
But the problem Parliament has now is the sheer number of submitters who submit in this way, vastly outweighing substantive submissions.
What happens when voters’ main engagement with the committee room is watching a social media video deliberately misinforming them about the nature of a law going through Parliament?
What happens when the committees are all theatre and not, as the Conchords might say, Business Time?
