With all the publicity surrounding the Treaty Principles Bill, another Act Party initiative – proposals for a Regulatory Standards Bill – almost flew under the radar. I say “almost” because it was detected and 23,000 submissions were received during the consultation period.
The proposed bill is promoted as an attempt to improve legislation and regulation, and ensure regulatory decisions are based on principles of good lawmaking and economic efficiency.
There have been three unsuccessful attempts to introduce such legislation, the last, a member’s bill by David Seymour in 2021. Though there has been general support towards the aim of improving regulatory quality, some components of previous bills have received considerable criticism from legal practitioners, academics, and constitutional experts.
Three major areas are covered in the current bid – legislative design principles, good lawmaking principles and regulatory stewardship principles. The legislative design principles have been the most contentious.
The principles focus first on the rule of law, stating the law should be clear and accessible and should not adversely affect rights and liberties. It states that everyone is equal before the law, there should be an independent and impartial judiciary, and issues of legal rights should be resolved by the application of +law rather than the exercise of administrative decision.
The principles emphasise the fact that legislation should not unduly diminish a person’s liberty, personal security, freedom of choice or action, or rights to own, use and dispose of property. Nor should legislation deprive a person of property, unless preconditions are fulfilled.
Taxes, fees and levies should be related to the cost of the service provision. The constitutional role of the courts in ascertaining the meaning of legislation should be preserved.
There have been a number of critical responses to the proposals. In suggesting it was a solution in search of a problem, the New Zealand Law Society criticised the hasty consultation period, especially over Christmas and New Year.
Many commentators say the proposals advance a libertarian agenda. One wonders whether this is a reflexive response to any proposal advanced by Seymour or his party.
Dame Anne Salmond’s critique, on newsroom.co.nz, is generally about the negative impact of radical libertarian ideologies on New Zealand society, focusing on issues such as extreme inequality, social fabric erosion and policy decisions that harm the wellbeing of the population.
She maintains the proposals prioritise individual and private property rights over social and environmental concerns, which could undermine collective and environmental rights.
But her argument lacks specificity, using ideological and libertarian critiques as shorthand for what she clearly considers to be a wider malaise. One can only conclude that “ideological” or “libertarian” are used in the sense of “veto” words that need no further explanation and are automatically condemnatory without further explanation or evidence.
In my view, the proposals are examples of classical liberalism at work. This holds that while laws are essential for the functioning of society, their formulation and implementation must be carefully managed to avoid eroding individual freedoms.
Lawmakers and enforcers must be mindful of the impact of laws on personal liberties and strive to achieve the delicate balance between collective security and individual rights.
It is through vigilant public oversight, democratic participation, and adherence to the principles of justice and equality that the erosion of individual freedoms can be minimised in the process.
In the debate that inevitably will follow, it would be helpful to dial down the rhetoric and ramp up the reasoning.
