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The bill, part of National and Act’s coalition agreement, excludes a principle regarding Te Tiriti o Waitangi.
Critics, including Jane Kelsey, argue it prioritises private property rights over social and environmental factors.
Consultation on a discussion document about the Regulatory Standards Bill (RSB) has been gaining increasing public interest in the wake of the Treaty Principles Bill.
The Ministry of Regulation received almost 23,000 submissions, about 80% of them in the final four days of the consultation period.
Submissions closed on Monday night. The bill, which is yet to be introduced into Parliament, was set to pass as part of National and Act’s coalition agreement.
During the First Reading in 2021, Seymour said that bill “codifies what good regulatory analysis is” with the proposed principles. Photo / George Heard
Similar legislation has a long, and unsuccessful, history in Parliament.
Here’s what you need to know.
What is it?
The Regulatory Standards Bill is not yet before Parliament, but a discussion document on the matter had been open for consultation to inform the drafting of the legislation.
The document included a set of principles outlining what constituted “responsible regulation”, including rule of law, liberties, taking of property, taxes, fees and levies, role of courts, good law-making and regulatory stewardship.
It noted it was not proposed that the bill would include a principle regarding Te Tiriti o Waitangi.
Also up for discussion was a mechanism for assessing whether new laws were consistent with the principles, and where they weren’t, whether the departure was justified.
There was also a proposal for the establishment of a Regulatory Standards Board which would respond to concerns raised around the consistency of regulation. It would be made up of members appointed by the Regulation Minister (currently Act leader David Seymour) and would be able to make non-binding recommendations.
History
Various forms of similar legislation have been introduced to the House on three occasions — all have failed to become law.
2006 The Regulatory Responsibility Bill was a Member’s Bill by former ACT leader Rodney Hide
2011 The Regulatory Standards Bill was a recommendation of the Regulatory Responsibility Taskforce (established in 2009). Treasury indicated at this time it didn’t support the proposed bill.
2021 Member’s Bill by ACT leader David Seymour
During the First Reading in 2021, Seymour said that bill “codifies what good regulatory analysis is” with the proposed principles.
“It says that if Governments wish to make laws, they must make sure that they are consistent with the rule of law. They must not diminish the liberties of New Zealanders except as is necessary to protect New Zealanders' liberties. It says that laws must not take property unless compensation is provided.”
The coalition agreement signed in 2023 between National and Act indicates support for the legislation to pass. Photo / Mark Mitchell
The coalition agreement signed in 2023 between National and Act indicates support for the legislation to pass.
“Legislate to improve the quality of regulation, ensuring that regulatory decisions are based on principles of good law-making and economic efficiency, by passing the Regulatory Standards Act as soon as practicable,” it stated.
Seymour announced “next steps” in a press release on November 19, opening the consultation period that closed Monday.
He said it would bring the same “level of discipline” to regulation the Public Finance Act brings to public spending, with the Ministry of Regulation playing a similar role to that of Treasury.
For and against
A report written by Bryce Wilkinson for the Business Roundtable, now the New Zealand Initiative, became the foundation for one of the earlier versions of the bill.
Wilkinson said economists believed good quality regulation was where the “benefits to people who are affected by it exceed the costs to people who are affected by it”.
“So it’s regulation which makes people better off.”
Emeritus professor Jane Kelsey had long opposed the intention of the legislation, saying it was “basically about the protection of private property and wealth”.
She said the Act Party’s priority for private property rights excluded balancing considerations, things such as social or environmental factors, and Te Tiriti o Waitangi.
“All of those things ... will be subordinated, if not, deemed irrelevant, in the policy and legislative making processes,” Kelsey said.
Environmental groups agree, saying the bill would have the effect of undermining environmental protection.
Melanie Nelson was a researcher, writer, analyst and cross-cultural consultant who had been publicising the bill online.
She was concerned about the lack of a “democratic mandate” for “constitutional changes of this magnitude”.
Property
Kelsey has raised questions around the principle of property saying the scope of it was not defined.
The discussion document said “legislation should not take or impair, or authorise the taking or impairing of, property without the consent of the owner unless: there is good justification for the taking or impairment, fair compensation for the taking or impairment is provided to the owner, compensation is provided to the extent practicable, by or on behalf of the persons who obtain the benefit of the taking or impairment”.
Kelsey said “impairment of property” would include “measures that impact on its value or profitability”.
That could include issuing compulsory licences to ensure access to vaccines in a pandemic, climate change measures that impact profits or the value of carbon credits, not renewing mining permits for environmental or climate reasons, new restrictions on tobacco or alcohol sales and marketing, such as around plain packaging for tobacco products.
The concern was that governments might face a struggle or significant costs if challenged by private interests when looking after the public good.
In response to the example of tobacco regulation, Wilkinson acknowledged there is a public health harm, but said that’s just one part of the overall cost-benefit calculation.
“Saying that it’s bad for people’s health is a relevant consideration, but people who get pleasure out of smoking, that’s an offsetting consideration.”
“What’s the balance... That’s an open question. It’s not an ideological question, although people’s preferences or views will come into it, so you can’t expect everybody to reach the same conclusion,” he said.
Treaty
A preliminary Treaty Impact Analysis conducted for the proposed bill noted it did not include a principle related to te Tiriti and its role as part of good law-making.
“Meaning that the bill is effectively silent about how the Crown will meet its duties under the Treaty/te Tiriti in this space.
“While this does not prohibit the Crown complying with the bill in a manner consistent with the Treaty/te Tiriti, we anticipate that the absence of this explicit reference may be seen as politically significant for Māori and could be perceived as an attempt by the Crown to limit the established role of the Treaty/te Tiriti as part of law-making.”
What happens next?
The submissions will inform the development of a draft bill the Government intends to introduce to Parliament later this year.
There will be another opportunity to provide feedback on the bill as it progresses through select committee.
