The Regulatory Standards Bill — Government Bill 155-1 under the name of the Minister for Regulation — was introduced to Parliament on May 19.
It received its first reading on May 23 and has been referred to the finance and expenditure select committee.
As alluded to previously in this publication (ODT 4.1.25), earlier attempts to introduce this legislation failed in 2006, 2009 and 2011.
In 2021, with the support of the National Party, a Bill to this effect was introduced by the (now) minister, but did not get off the ground. It was condemned as a dangerous constitutional shift undermining public and collective rights and threatening parliamentary sovereignty.
Nothing about this Bill has changed except that the National-Act New Zealand coalition agreement provides for support of the Act policy programme by National.
In this regard, the situation is different from that of the failed Principles of the Treaty of Waitangi Bill, which National and New Zealand First supported only to the select committee stage, then voted it down.
Why is this Bill of such concern? The reasons are the same as they were two decades ago, being:
— That the proposal represents a constitutional entrenchment of neo-political principles with an accumulation of power in the hands of the minister of regulation;
— Tying principles of good regulation to property rights as a fundamental of good lawmaking overlooks entirely the ancillary fundamental of good lawmaking being strengthening communities, enhancement of environmental standards and protection of vulnerable groups.
The proposed primacy of free market and individual rights is false as both are reliant on law and order and inherent obligations to protect the vulnerable (persons or environment) and maintain a reasonable balance where equity and justice is accorded the same value.
Existing legislative guidelines from 2021 provide that "legislation should be consistent with the Treaty of Waitangi and should reflect the fundamental values and principles of a democratic society". This Bill does neither.
Current guidelines identify the principle that "everyone is subject to the law".
This Bill changes that to "every person is equal before the law" which reflects the Act party’s policy to eradicate equity-based programmes which seek to redress systemic inequality.
Equality in this sense is a procedural right, free of class or status. It is not, and never has been, the right to be treated the same.
Equating property rights with personal liberty creates dangerous territory, the focus on which will obliterate the duty to preserve the environment and address substantive inequality issues.
Going down this path will open the door to compensation claims in the event of any actions impacting adversely on property rights.
There are already in place substantive regulatory controls. The advice to the minister in this instance is, in essence, that the proposed legislation is unnecessary.
The extent of powers placed in the hands of the minister, the proponent of the Bill, is excessive. The objective of the Bill is to encapsulate more than 20 years of neo-liberal, libertarian dogma, designed to elevate and protect the interest of property above all else.
Successive parliaments have soundly rejected this legislation in the past. The prime minister must ensure that the Bill is amended to recognise all of its defects or simply decline to support it on the basis that it is not good law.
Act NZ leader David Seymour would be unlikely to surrender his upcoming deputy prime ministership given the patience shown to date in getting this hobby horse across the line.
— Noel O’Malley is a Balclutha lawyer and past president of the Otago District Law Society.
