Passing the Regulatory Standards Bill is part of the Act-National coalition agreement. Photo / NZME photograph by Mark Mitchell
Passing the Regulatory Standards Bill is part of the Act-National coalition agreement. Photo / NZME photograph by Mark Mitchell
The Waitangi Tribunal held an urgent one-day hearing on the controversial Regulatory Standards Bill on Wednesday.
Critics, including Māori leaders, argue the bill lacks a Treaty clause and impacts Māori rights.
David Seymour says the bill reduces red tape and improves lawmaking transparency, but 88% of submissions oppose it.
A piece of legislation that its architect, David Seymour, says will increase political transparency and turn “up the heat on bad lawmaking” has drawn thousands of critics to throw their support behind a claim with the Waitangi Tribunal.
In an urgent one-day hearing on Wednesday, the Waitangi Tribunal heard the concerns of those opposed to the legislation and the response from the Crown.
The hearing was urgent and brought forward to Wednesday because the tribunal must submit its report before the bill is introduced at Parliament, which is expected to be on Monday.
Lawyer Tania Waikato, who represented claimants Toitū Te Tiriti, told the panel the Regulatory Standards Bill (RSB) would essentially create a control gate through which current and new legislation would need to pass.
The bill would establish a set of principles that would relate to areas such as rule of law, liberties, the taking of property, taxes, fees and levies.
Agencies would be required to assess the consistency of bills with those principles and government departments would need to review their regulatory systems.
Act leader and Regulation Minister David Seymour is the architect of the the Regulatory Standards Bill. Photo / Mark Mitchell
Waikato said in that scenario, Treaty provisions would never comply with the new regulatory principles, accusing the Government of “slanting the entire playing field against the retention of the existing Treaty principles”.
She said more than 18,000 people had registered in support of the claim.
“In terms of picking the [regulatory] principles... that is where the system itself is creating a breach of te Tiriti because number one it is setting up te Tiriti for failure, it is setting up every single Treaty provision for failure.
“The system itself has entrenched a systematic framework that already requires adherence to these principles, which do not come from a treaty, they come from the Act Party, and [has] elevated them to a status by which every single law must be assessed.”
Passing the RSB is the latest in a years-long attempt by the Act Party to introduce this type of legislation.
The Waitangi Tribunal held an urgent one-day hearing on the bill on Wednesday. Photo / Supplied
As well as new regulatory principles, the bill would create a regulatory standards board to review whether legislation aligned with the principles.
Waikato said the Crown had “entirely failed” to engage with Māori during the development of the proposed bill.
In response, the Crown acknowledged there had not been specific consultation with Māori but “there was not an invariable or likely inconsistency with the Treaty” with the RSB.
The Crown said there had been various processes around the bill or similar regulatory standards policies for the past 20 years. This dated back to 2006 with former Act leader Rodney Hide’s Regulatory Responsibility Bill.
The process the Crown did go through included public consultation, the information garnered through that, the Treaty Impact Analysis, and engagement with, for example, Te Puni Kōkiri and other departments.
Last summer, a discussion document was put out for public consultation. It drew about 23,000 submissions. Most (about 88%) were in opposition with just 0.33% supporting or partially supporting it. The rest didn’t have a clear position.
The Crown told the panel the RSB would not “necessarily or invariably undermine” the place of the Treaty in New Zealand’s constitution or lead to a breach of the Treaty principles.
“There is nothing explicit in the RSB that would unpick existing ways in which the Treaty is taken into account through legislative and policy process.
“The RSB principles are just considerations and they can be departed from. The RSB does not create rights and the RSB will have to be interpreted in the light of Treaty and tikanga and it is open for that interpretation because the principles are rather open-ended.”
Dr Andrew Geddis, constitutional law expert and professor at University of Otago, said the RSB would set up rules for how future laws could be made and what they could say.
“Unless the bill has that effect, there is no point to it,” he told the Herald.
“It is intended to try to limit and constrain laws in the future. The intention is to load the dice so laws that are consistent with the Act Party’s views are easier to make, while those that aren’t face extra hurdles and difficulties.”
Dr Andrew Geddis, from University of Otago, says the bill will create rules for how future laws can be made. Photo / Otago Daily Times
Geddis, who made a written submission to the tribunal, said the RSB did not contain any reference to te Tiriti / Treaty of Waitangi, which raised concerns it would be overridden by the RSB’s “regulatory principles”.
“The principles that have been identified in the RSB talk a lot about equality of treatment and that we are all one before the law without acknowledging why there are good reasons for disparate treatment of Māori given this country’s history and the promises made to Māori.”
Claimants have also drawn similarities between the RSB and the now-defeated Treaty Principles Bill (TPB).
Dr Carwyn Jones, head lecturer for Māori laws and philosophy, Te Wānanga o Raukawa, said in his submission the bill would “create one of the most fundamental constitutional shifts in our legal history” by elevating the RSB principles above the Treaty principles.
Dr Carwyn Jones, head lecturer for Māori laws and philosophy, Te Wānanga o Raukawa.
“The RSB and Treaty Principles Bill represent a combined legislative pincer movement where the RSB seeks to finish what the TPB started.”
The Crown rejected this, saying the RSB was “distinguishable in substance” from the TPB.
“It doesn’t seek to specifically regulate the Crown-Māori relation, it doesn’t seek to create duties in respect of interpreting legislation which is one of the things the Treaty Principles Bill would have done if it had passed.”
Seymour said the RSB would make lawmaking more transparent by shining more “sunlight” on what politicians do and increasing “political penalties of being a bad lawmaker by making it easier for voters to understand making a law for them”.
“Under the Regulatory Standards Bill, if you don’t ask and answer the right questions before you make a law reform affecting people’s rights then someone can go to the regulatory standards board and make a declaration that actually you’re not a very good lawmaker.”
Julia Gabel is a Wellington-based political reporter. She joined the Herald in 2020 and has most recently focused on data journalism.
