A response to sincerely-held concerns about the Regulatory Standards Bill

NZ Herald

2 days ago

It appears that most of those opposing the Bill emphasise its failure to include Treaty of Waitangi principles. For them, this omission represents a fundamental threat to Māori wellbeing and New Zealand's constitutional framework. Some fear it will undermine decades of progress.
These fears reflect what people have been told, and genuinely believe.
Distrust of the bill's intentions is significant. The most ideological submitters think the bill is driven by an unacceptable 'neo-liberal', libertarian ideology.
Many more think it prioritises individual property rights over collective wellbeing.
The bill's premise is the opposite: that the collective rules all. Parliament represents the collective voice of the nation. Its laws are those of the collective. It is sovereign lawmaker. Nothing in the bill changes that.
Instead, the bill makes the Government of the day more transparent and accountable to Parliament when asking Parliament to pass a regulatory measure.
Specifically, the bill requires the Government to inform Parliament about departures from key fundamental legal principles, and to provide a reason.
Parliament is free to ignore that information. It would be as free as now to implement strong environmental protections, extensive public health measures, or policies specifically to advance Māori interests.
The Bill draws on ten legal principles from the Government's own Legislation Guidelines. Photo / Mark Mitchell
That is the key point. It is why the bill is merely a transparency measure.
A related, sincerely held view is that the bill's selected principles are ideologically biased. They screw the scrum in favour of individual rights.
Yet the state's first duty is to protect citizens in their persons and possessions. National defence, the police and the courts are fundamental state responsibilities.
At their most basic, constitutional arrangements need to protect citizens, as groups and as individuals, from the unprincipled abuse of the state's power.
Chapter 4 of the 2021 edition of the Government's Legislation Guidelines distils 10 default principles from 'the fundamental constitutional principles and values of New Zealand law'.
The 10 default principles include preserving the rule of law, a presumption in favour of liberty, and respect for property rights. That is not extreme, it is basic.
The six broad principles in the Bill draw heavily from the most relevant of those default principles. This is not accidental. The 2009 Regulatory Responsibility Taskforce drew them from earlier editions of the same publication. (Space does not permit going into differences here.)
Why not include a reference to Treaty principles? The open question is 'precisely what difference would this make'? Specific examples would be helpful.
For some years now Cabinet has required officials to identify departures from these 10 default principles. Ministers must give reasons for such departures. This is to be done before a measure is put to Cabinet or to a Cabinet Committee. The same requirement applies to another 138 default principles from the other 22 chapters in the guidelines.
The problem here is that Cabinet can ignore its own requirements when it wishes to do so. Hence the concerns about measures pushed through Parliament under urgency.
The bill aims to make it harder for governments to ignore such requirements, at least in respect of the most fundamental common law principles.
Another widely expressed concern is that complying with the bill's assessment requirements will cost many millions of dollars in public sector time.
First, that would be worth it if enhanced parliamentary scrutiny could help prevent regulation disasters, such as the housing affordability disaster.
Second, it is hard to see any additional costs from the scrutiny the bill proposes – if officials and ministers are complying with the myriad of existing requirements.
With respect to the review of existing laws and regulations, there will be additional costs. But the scope for using rapidly-improving AI to greatly reduce those costs has not been factored into current estimates.
Nor does the Regulatory Standards Board have 'sweeping powers'. It is pretty toothless. It declares a finding but cannot force anyone to pay it any attention. Its function is to increase transparency.
Finally, some common ground. Experts widely agree that regulatory quality in New Zealand is a concern.
The challenge now is to move beyond misunderstandings toward a more constructive, better-informed and less ideological discussion about how more transparent and principled lawmaking can better serve New Zealanders.