Anne Salmond: A flawed bill
The Regulatory Standards Bill sets out its fundamental precepts in the form of 'principles of responsible regulation'. These prescribe that good legislation should not unduly diminish individual liberty, security, freedom of choice or property rights, except where this is necessary to protect the liberty, freedom or rights of another.
In this view of the world, there are persons with rights and property, whose liberty must be protected unless it impinges on those of another person. Here, human life is about individuals pursuing their rights and freedoms, without undue interference from others.
There are three key problems with this framing. First, it is partial, and mistaken; second, it's non-adaptive; and third, it does not meet its own standards. Basing all lawmaking in New Zealand on so faulty a framework is bound to lead to trouble.
To address the first point: the Regulatory Standards Bill emphasises individuals and their rights and freedoms at the expense of collective rights and values. This demonstrates a radical misunderstanding of human life. Though individuals are important, human beings are incorrigibly social animals.
Partly, this is a matter of biology. Babies have a mother and father (or at least, they did until technology intervened); and when they're born, they have a long period of vulnerability during which they have to be cared for and taught various skills if they are to survive. Kinship, with families and kin groups, meets this need.
With the emergence of language, human beings coordinated their activities in increasingly complex ways, building settlements for shelter and security, sharing experience and knowledge in fishing, hunting, gardening, trading and developing new technologies. The ability to co-operate is a key adaptive advantage of the human species.
Pleasure came from other social activities – singing, art to share with others, games, sports and so on. Knowledge was passed on down the generations.
As the size of human settlements grew, ways of regulating social life became more elaborate – laws, courts, the police and Parliament itself, for instance. The whole process of making laws – including the Regulatory Standards Bill – is a social activity.
Nor is it just about relations with other people. The relational networks between human beings and other life forms and the wider environment are also far-reaching and vital to human survival.
Whakapapa, for instance, along with western relational philosophies, is grounded on these realities. It is not just Te Tiriti that's at risk in this bill, but te ao māori itself, with its whakapapa framings that include all forms of life, and its kin-based hapū and marae.
None of this is recognised in the Regulatory Standards Bill, bar a hollowed out account of 'the rule of law'. Though individuals matter in human life, relational frameworks are vital to survival, at different scales and with other life forms, landscapes and seascapes, as well as with other people. Any framing of the world that does not recognise these basic facts is partial, and mistaken.
To address the second point, a framework that ignores the foundational importance of collective institutions, property and values in human life is non-adaptive. If people are taught to prize their individual freedom and property above all – for instance, the cost-benefit calculating individual of neoliberal economics – the bonds that bind families, communities and societies begin to fray.
If the collective rights and values that underpin the social contract, including justice, truth, fairness and respect for others, are undermined, injustice, misinformation and disrespect are likely to follow – as we have seen in the tactics used to promote this bill.
If economic models based on the pursuit of self-interest are privileged in law making, ideas of public service begin to fade. Families and voluntary organisations falter; and institutions created to care for others – early childhood centres, schools, hospitals, retirement villages and the like – become dedicated to the pursuit of profit.
At the same time, knowledge about relationships with other people and the wider world is set aside. It is no accident that the coalition Government that agreed to pass the Regulatory Standards Bill has withdrawn funding for basic research in the humanities and the social sciences.
Policy-making becomes based on ministerial 'reckons' rather than evidence. The disciplines of law, public policy, political studies, public health and nursing, philosophy, the arts and literature, history, urban design, environmental studies, architecture, human geography, sociology and anthropology are defunded, as if understanding human life does not matter.
And if relationships with other life forms and the environment are ignored, these also become dysfunctional, with the mass extinctions of other life forms, polluted lakes and rivers, ravaged landscapes, melting glaciers, heating oceans and climate change. None of this contributes to social cohesion or prosperity.
A bill that fails to recognise the key challenges facing the human species, and frustrates the strategic deployment of different forms of social co-operation in the public interest is dangerous and non-adaptive.
Since the neoliberal revolution of the 1980s, New Zealand has already gone a long way down this track. If we want a peaceful and productive society, a bill that tips the balance even further towards the privatisation of social life and the living world around us is unlikely to prove constructive.
On the third, and final, point, the bill fails to meet its own standards. Although the Regulatory Standards Bill requires that individual freedom and choice are given priority in law-making, there are many aspects of compulsion and top-down control in the provisions of this bill.
These include the roles of the minister of regulation and his hand-picked board, and the requirement to review all laws and regulations, past and present, against a particular ideological framing.
Ultimately, as Peter Thiel has written, a libertarian version of 'freedom' and democracy are incompatible. Taken to the extreme, the unfettered pursuit of freedom by individuals undermines democracy and the rule of law, and the rights of others.
Some may want to take New Zealand in this direction. Judging from public reactions to the Regulatory Standards Bill, however, many New Zealanders have grasped where this bill would take law-making in this country, and do not want a bar of it.
Of the citizens who voted in the last election, only 8.6 percent of New Zealanders voted for Act, with its Regulatory Standards Bill. Of 23,000 submitters on the bill at the consultation phase, only .33 percent supported it. Of a reported 150,000 submissions to the select committee, a large majority oppose it.
This bill lacks even a fig-leaf of popular consent. If it is forced on the country, that flies in the face of the first principle in this bill – that no government should pass legislation that unduly restricts the freedom of choice of individuals.
This bill speaks of freedom, but practices ideological imposition. It is self-contradictory, unbalanced and non-adaptive. This subcommittee should do their Parliamentary duty, listen to the people, and discard it.
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When the politician pushing a controversial piece of legislation starts accusing his critics of 'derangement syndrome' – as David Seymour has done this week – then any chance of a rational debate on the Regulatory Standards Bill has gone out the window. Seymour's tantrum confirms the fears held by constitutional experts (and by many of the public) that Seymour is unfit to wield the powers conferred on by this legislation. The Bill is a hot mess. That may be intentional. Is it a genuine power grab on behalf of corporates and foreign investors? Or is it a toothless rollcall of libertarian platitudes? Or is it something in a shot across the bow of the courts meant to chill their enthusiasm for upholding any environmental right or consumer protection that the business sector is known to oppose? For Seymour, reaching clarity on any of this may be irrelevant. After all, the politics of polarisation consciously generates fear and heat and anger; its what turns society into rival tribes, for the purposes of divide and rule. As with the Treaty Principles Bill, stirring up the liberal Establishment is one of the main goals of the exercise. In other words, it doesn't really matter if the Regulatory Standards Bill gets passed, for not. For ACT, it will have served its purpose if it merely becomes a media circus, in which Seymour gets to tread the parliamentary sawdust once more as the ringmaster, while the rest of the public cheers and jeers. That's how politics-as-performance works. It is never mainly meant to be a politics of substance. If it works out that way, that's only a bonus. Seeing red at red tape All along, Seymour's tendency to equate 'regulation' with ' red tape' has signalled the ideological bias behind his pet project. The Regulatory Standards Bill happens to be targeted at the body of environmental, consumer, workplace and Treaty-based regulations that have been developed since the 1970s to meet the needs of a modern, pluralistic society. No doubt, regulations are annoying and bothersome to the narcissists in our midst, but most of the time, those rules exist for a reason. They make society more liveable, for the majority of us. A social safety net is a hindrance only to the sort of people who never have to rely on it. Back to the Future Unfortunately, this means that the public has to explain patiently to the likes of Seymour, Federated Farmers and BusinessNZ that central government should respond (a)when extreme weather conditions driven by climate change wreak havoc on communities and households (b) when rivers and lakes get polluted for profit (c) when fishing stocks are driven to the brink of collapse (d) when our rate of workplace fatalities exceeds those in comparable countries (d) when predatory pricing is rife at banks and supermarkets and (e)when Māori health statistics continue to deteriorate... etc etc. You get the picture. Telling monolithic sectors of the economy that they have to act responsibly in the public good isn't socialism; its how a viable social democracy works. If anything we need more forms of co-ordinated action by central and local government to address the inequities in society. Instead, the coalition government seems to be intent on unloading the cost and responsibility onto individuals, households and communities. It seems to be intent on atomising society, not on bringing it together. Needless to say, this political philosophy – it relies a lot on stoking fear and greed, division and resentment - prepares us badly for the social and environmental challenges that New Zealand is facing over the next 25 years. In that respect, the Regulatory Standards Bill is a real throwback. It is as retro as the acid-wash jeans and shoulder pads fashionable during the mid 1980s high summer of neo-liberal thinking. And because the political worldview of Seymour (and his corporate sponsors) seem to be frozen in that primitive period of mid-1980s market economics, there's a historical dimension missing entirely from the draft Bill. Basically, there are no criteria for discerning' good' regulation from 'bad' regulation, beyond the whims and prejudices of the people chosen (by Seymour) to administer the legislation. What could possibly go wrong? While this may not be apparent to the ACT Party, regulation isn't just about red tape and bureaucracy getting in the way of the buccaneers of the boardroom. For the century preceding the 1980s, regulators working in tandem with government, business and (to a lesser extent, unions) created the rules that have governed market competition. Capitalism thrived under this regime. In a recent essay in Washington Monthly, Phillip Longman spelled out just how far into the engine room of the economy those regulations reached. The majority of the public were employed, housed and fed by these egalitarian rules, to an extent that free market economics has failed miserably to match. Here's Longman, listing some of those beneficial regulations: Which kind of banks could operate here and how much interest could they charge, or pay? What rates could railroads or airlines set for transporting various types of cargo or passengers over different distances? How much profit could investors in electric utilities or telecommunication companies make, and what customers were they required to serve, and at what prices? Point being, these rules were the product of a collaborative process, not the result of a deliberately divisive one. It was a process that did not toss the lessons of the past onto a regulatory bonfire: Working with industry, federal lawmakers and regulators hashed out rules that determined who could enter and exit different key sectors, what terms of service they could impose and with whom they could merge. During America's century-long rise as a capitalist superpower, such market rules fit together to form an increasingly sophisticated and pervasive system. That system has been called 'regulated competition.' Sure, there was some regulatory capture, on occasions. But at the time, there was a shared understanding that if left unregulated, market forces will naturally converge into a few dominant players, who will then prey on their captive customers. That's what we're seeing now with our banks, supermarkets and electricity companies, and what we saw with our telcos in the recent past. It may sound like a paradox, but 'free' markets have to be constantly regulated in order to remain free. No doubt, this is a fallible process. Arguably, Big Tech today needs to be regulated for anti-trust purposes in the same way as the US oil magnates, railway barons and meat packing companies were in the past. Unfortunately it is these kind of 'sophisticated and pervasive' systems of regulation that Seymour and his boardroom friends are demonising (and wish to tear down) for their short term political and economic gain. The folly of doing so has already been demonstrated in post-Thatcher Britain, where devastated communities are now turning to Nigel Farage for their salvation. Likewise in the US, the millions of victims of de-regulated market forces have turned to Donald Trump. In New Zealand the same quackery – remove the chains of regulation and set our entrepreneurial spirit free! - is being preached to us by David Seymour. We need to oppose it, tooth and nail. Footnote: In the light of the coalition government's attitude to the coercive contracts now common within the gig economy – sign away your employment rights or you won't get the job – it is interesting to read this paragraph written by the US Supreme Court judges 114 years ago, as they ordered the breaking up of the oil empire of America's first billionaire, John D Rockefeller, into over 30 smaller companies. In England and in the US before 1911, the Supreme Court said: ... Public policy has been to prohibit, or treat as illegal, contracts, or acts entered into with intent to wrong the public and which unreasonably restrict competitive conditions, limit the right of individuals, restrain the free flow of commerce, or bring about public evils such as the enhancement of prices. Sheesh. If only New Zealand would prohibit (or treat as illegal) coercive contracts that limit the rights of individuals, wrong the public, restrict competition and foster public evils such as price fixing by supermarkets and electricity companies. Unfortunately, the simple-minded worldview being promoted by the Regulatory Standards Bill will make such public evils more likely, not less so. The Dark Star of Inflation There isn't an obvious link between central banking and the Grateful Dead. Yet two years ago, US Federal Reserve chairman Jerome Powell publicly confessed to the House Financial Services Committee that he has been a Grateful Dead fan for the past 50 years. To the vast irritation of Donald Trump, Powell is refusing to cut US interest rates until he sees what the inflationary impact of Trump's tariffs will be. Because of the uncertain inflation outlook, Australia's central bank also refused this week to cut interest rates. Yesterday, the RBNZ did the same. It kept the rate at 3.25% despite pleas by economists and by pundits that our economy is languishing in a really, really weak condition. Unemployment is at very high levels, employment is falling and people with little or no job security are feeling naturally reluctant to spend what money they have. Perversely people being thrown out of work, wage growth being suppressed and more households being daunted by high prices at the checkout all tend to be welcomed by the RBNZ. Why? Because they provide a brake on inflation. Given such brutal realities, its no wonder people have always flocked to the serenity of Dead concerts. Down the years though, the band's fan base have not simply been comprised of travellers on the psychedelic astral plane. The tireless tapers of Dead concerts, and the compulsive setlist compilers include a lot of workaholic Type A personalities as well. Here are the members of the RBNZ monetary policy committee that sets interest rates. No offence, but it isn't easy to spot the likely Grateful Dead fan (or fans) among them. Here's the Dead's signature track. By the time it ends, it will feel as if the policy committee's next meeting – and a further 25 point rate cut – is almost due.
