Supporters argue the bill, championed by David Seymour, aims to improve lawmaking and transparency. Photo / RNZ
By Lillian Hanly of RNZ
Lawyer Tania Waikato has slammed the Regulatory Standards Bill as a “blatant and audacious attempt” by the Act Party to “subvert our democratic processes for their own private gain”.
She used her submission to raise the issue of safety following the release of her personal details, calling it a threat to democracy.
Those in support of the bill have said it’s a necessary tool to improve lawmaking.
It comes during a day of submissions that included former MPs, unions, a private company, as well as a long opponent of the bill, Jane Kelsey.
MPs from the Finance and Expenditure committee heard arguments in opposition and support of what has been dubbed by some the Treaty Principles Bill 2.0.
The bill - championed by Act Party leader David Seymour - sets out “principles of responsible regulation” and would require ministers to explain whether they are following them.
It would also set up a new board to assess legislation against those benchmarks.
Some have called it a “procedural” bill, rather than a constitutional one, that looks to introduce the concept of good lawmaking, as well as being a mechanism for transparency.
Others have raised concerns around the failure to uphold Te Tiriti o Waitangi. A former Act MP has given a scathing rebuke of the “economic dogma” it represents.
A former district court judge also got into an academic joust with Labour MP Deborah Russell, who told the submitter “there’s no need to patronise me”.
A small group gathered outside Parliament for the day, calling themselves The People’s Select Committee, to provide a space for those who haven’t received formal speaking slots to make their case.
Waikato, who has previously represented Te Pāti Māori MPs, made a heated submission, raising concerns about escalating security threats for those who oppose it.
She said she had to have a security escort to Parliament after her address was posted publicly alongside vitriol towards her.
“Let that sink in,” she said. “A security escort to give an oral submission on a bill that falsely claims to be about improving legislation.
“These right wing extremists have followed the lead of the Minister for Regulation, David Seymour, who has published photos of other academics online who have been critical of this bill.”
Seymour has been criticised for posting images online of those opposing the bill, with the slogan ‘Regulatory Standards Derangement Syndrome’.
“In doing so, the minister has given implicit support to the actions of these extremists to target experts and others who are speaking out against this bill,” Waikato said.
“Is this truly the kind of democracy that you want? One where academics and lawyers are having their personal safety threatened for opposing a bill.
Overall, she called the bill an “affront to the constitutional foundations of Aotearoa” and a “cowardly, covert attack” on Te Tiriti o Waitangi that desecrated the partnership between Māori and the Crown.
She said it was an attempt by the Act Party and its foreign sponsors to “constitutionally entrench their far right political views into the very fabric of our society”.
“The influence and control that it will give to the Act Party and Minister Seymour is dangerous, undemocratic and unjustified.
“The supreme irony is that the bill itself was assessed as being unnecessary legislation by the Ministry for Regulation itself, the minister has provided no explanation for why he is ignoring his own ministry’s advice and proceeding.”
Owners of a resort in the Marlborough Sounds spoke in support of the bill. Their case was around the bill affirming and protecting property rights.
The resort is mainly built on private land, but the strip of foreshore, or “Queen’s chain”, represents a “significant portion of the footage leading onto the foreshore”. It’s also the key means for guests to arrive, given there is no road into the resort.
“Nothing takes the place of the importance of the foreshore reserve.”
Historically, there have been perpetually renewable licences administered by the Department of Conservation, now they only have the ability to issue fixed-term concessions.
They argued that the cut crossed the personal and private rights being considered by the bill.
“Without the tenure on that foreshore service area guaranteed, it makes our plans for the further development of the place somewhat questionable,” they said.
“We think that had the Regulatory Principles bill been in place when those amendments were effective, the impact on private property rights would have been highlighted, would have been considered.”
The Council of Trade Unions (CTU) opposed the bill, saying it would not achieve its stated goal of improving legislation.
Policy analyst Jack Foster said the CTU does not object to improving the quality of legislation, it thinks that is a “valid and desirable objective”, but claimed the bill doesn’t do that, and instead proposes ideological principles.
“Although the sponsoring minister has attempted to dress them up as neutral standards of good regulatory practice, they quite plainly reflect and seek to embed in law, making peculiar and marginal libertarian beliefs about the supremacy of individualism and private property rights.”
Foster said there were other “far more widely accepted principles” that were absent from the bill. He explained these as whether the legislation is consistent with the Tiriti o Waitangi or with other existing legislation, as well as whether it is evidence based, whether it is enforceable and whether it is equitable and sustainable.
Similarly, the Law Society also stated New Zealand could “do better” with its arrangements for legislative design.
Tim Stephens said the guidance and requirements in this area are distributed across different agencies, they’re relatively informal and they have accountability mechanisms. But, he pointed out the bill was not an “effective response to dealing with these issues”.
“The reason for that is that the main mechanism in the bill is a transparency mechanism.”
Stephens said transparency mechanisms only worked if “transparency injects a sense of obligation or shame or just potential downsides for the person responsible for the matters being highlighted”.
“It seems to us that there’s just no real prospect that the transparency mechanism in the bill will have that kind of effect.”
He also highlighted the ability for government to “discount these principles on the basis of political calculation”, that any repercussions or consequences “won’t be a problem or just be worth it”.
“For an example of that, it’s hard to go past this bill itself,” he said.
“It’s striking that a bill purporting to promote good lawmaking and high quality legislation should so conspicuously fail to meet its own standards on those fronts.”
A kura kaupapa Māori based in Wellington told the committee the bill was “racist in design”.
Rawiri Wright said it made no mention of state obligations under Te Tiriti o Waitangi towards Māori, no acknowledgement of Māori indigenous rights, and gave no considerations of the “notions of collective ownership”.
“Instead, it focuses on individual rights, the accumulation of wealth by individuals and companies, and the exploitation of resources, which would inevitably lead to continued environmental degradation,” Wright said.
“It promotes only one worldview of the right kind of legislation that is good for the country, but that is only from a white, monocultural worldview by definition.”
He asked the committee to consider the negative implications of the bill on the Māori education sector.
The chief economist for Business NZ told the committee it was important that appropriate scrutiny was placed on decision makers to ensure regulatory interventions were soundly based.
John Pask, speaking in support of the bill, said it wasn’t a “silver bullet” but another tool in the toolbox toward improving the quality of regulation in New Zealand.
He made some suggestions for improvement, including ensuring the independent regulatory standards board had “appropriate skills to undertake sound cost benefit analysis”.
“Moreover, Business New Zealand sees a role for the public in terms of scrutinising the reports of that board, perhaps through an annual select committee process.”
Pask also indicated the considerations for “regulatory takings” - where compensation might be required due to government decisions - should be “looked at and perhaps tidied up” for more clarity.
He suggested local government regulation be included in the remit of this legislation.
Jane Kelsey told the committee this was the fourth time she’d submitted on the various iterations of this legislation.
She said Seymour was not someone who “can or should be trusted by any executive power”.
“Let me be very clear that from my own experience, David Seymour does not give a toss about transparency, accountability and good governance.”
She raised the issue of regulatory takings, and the possible consequences.
“In terms of the chilling effect of the potential compensation that will be sought, for example, if National seeks to pursue its introduction of competition in the area of supermarkets and banks and and electricity companies,” she said.
Kelsey challenged National and New Zealand First for allowing the bill to “get this far”.
“You have the ability and responsibility to stop this bill. Now.”
Retired judge David Harvey spoke in support of the bill, because it introduces the concept of “good lawmaking”.
Harvey said every piece of legislation involved some form of erosion or interference with “individual or corporate liberty.”
He argued that it wasn’t a “constitutional” bill, an argument he claimed had been reported or published, and that it was in fact “procedural.”
“It can be amended. It can be repealed by subsequent governments, and it can, like the New Zealand Bill of Rights Act 1990 be ignored in the legislative process.
“The only thing is that, if it is going to be ignored, those who are responsible for ignoring it are going to have to stand up and say, why.”
Harvey also said the bill should reference Te Tiriti o Waitangi because it involved elements of governance and of “equal application of the law.”
He didn’t know how that should be done within the scope of the bill, but said there should be “some recognition of the Treaty.”
A leading Māori data scientist argued the bill “fundamentally fails to uphold Te Tiriti o Waitangi”.
Te Kahui Raraunga’s Kirikowhai Mikaere told the committee it disregarded the collective rights and aspirations of iwi Māori and prioritised private property and corporate interests over public good, environmental protection and the wellbeing of iwi Māori.
She said the privileging of individual and corporate rights would have a “negative and long term impact” when it came to the data landscape of the country. She also said it would risk the “very delicate social license” of trust the country had of its own data system.
“Data is not only a strategic asset, and what we know to be probably the biggest commercial asset in the world, it is a national asset for New Zealand, and what we recognise is this bill puts at jeopardy that national asset.”
Mikaere argued the Bill had also failed to honour Te Tiriti principles of partnership and participation in its creation.
“Even the way that the bill was crafted, was in isolation of Te Tiriti partners.
“Going forward, it reflects the values of and priorities of a very small number of New Zealanders.”
The Taxpayers’ Union argued New Zealand’s poor quality regulations was one thing holding back the country’s economy.
Executive director Jordan Williams said the bill was a “litmus test” for whether the Government was serious about getting New Zealand back into the “status of the first world economy and with first world living standards”.
Williams said the bill was primarily about transparency.
“The bill is, in effect, an information disclosure regime.
“It does not obviously tie the hands of Parliament, other than forcing lawmakers to turn their minds to cost trade-offs and regulatory takings, among other things.”
Williams said it was an “encapsulation” of what used to be seen as “just good law making”.
He challenged the MPs listening, saying one of their key roles as an MP was to uphold the rule of law.
“Frankly, if you vote against a bill that requires disclosure of the rule of law implications of proposed legislation, I’d put to you that that is a failing of what is traditionally a duty of being a public representative in Parliament.”
Ray Deacon, an economist for the group who also submitted, adding that the “economic cost of poor legislation is enormous”.
“There has been no plan to assess the quality of legislation. There has been no plan to improve the quality of legislation. Therefore, there has been no plan to reduce the economic cost of redundant, ineffective or poorly implemented regulation.”
He argued there had been an ad hoc approach to reviewing and amending legislation and only when it was impossible to ignore.
“This bill provides the legal structure for assessing the quality of existing legislation. This has to be worth something.”
A former member of Parliament for the Act Party gave a scathing rebuke of historical legislation she said had ripped apart New Zealand’s collective strength.
In opposing the bill, Donna Awatere Huata referenced the State Sector Act which “turned our public service into a business.”
She said the Reserve Bank Act legislated that “inflation matters more than jobs, more than housing, more than food on the table, more than anything.”
Huata said the Public Finance Act “made our children invisible unless they could be turned into an output”.
She told the committee the Fiscal Responsibility Act “made caring a liability.”
“These laws have got to go. They are not neutral. They slash jobs without a single thought of the devastation to families pushed us into unsafe homes, or worse, into cars or the streets.
“They gouged fairness and equality, tore the spirit from our public life, recreating the misery and hatred of the poor of 19th century Britain.”
Huata argued the Regulatory Standards Bill would take “the economic dogma that caused this harm” and elevate it into “constitutional doctrine”.
“It would make it almost impossible to rebuild, to fix the broken systems, to honour Te Tiriti o Waitangi, to re-weave tikanga into public life.
“It would allow courts to override our voices, your voice, my voice, the voice of community, of collective care.”
-RNZ
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