My Regulatory Standards Bill submission

I ran out of steam towards the end but here it is...

My name is Ryan Ward. I am a Senior Lecturer in the Department of Psychology at the University of Otago. I have expertise in the history and social and political context of worldwide and New Zealand drug policy.

I strongly oppose the Regulatory Standards Bill. As proposed it seems little more than a cover for an ideological libertarian agenda. I will not answer all of the questions in the discussion document, as many seem irrelevant to a more substantive discussion of the main issues. I have strong opposition to the entire framing of the bill, its characterization of the problems to be addressed, its principles for regulation, and the unilateral power it confers on the Minister of Regulation and his hand-picked Regulatory Standards Board.

The bill as proposed seems to be in substance very similar to a bill that has been rejected three times by Parliament in the past 25 years (indeed it is patterned after the rejected 2021 bill). It appears to be little more than an attempt to enshrine in law corporate rights and privileges that supersede any consideration of the common good of the public, the environment, or marginalized groups within Aotearoa. It will also tie the hands of future governments who propose to legislate in favor of the public good rather than corporate interests. Tellingly, it also completely omits Māori and Te Tiriti o Waitangi from the discussion, indicating that it plans to rewrite Aotearoa’s constitutional framework in order to eliminate existing protections.

The first sentence of the Minister's foreword states that “Most of New Zealand’s problems can be traced to poor productivity, and poor productivity can be traced to poor regulations.”

It’s difficult to even begin to know what to make of this initial framing. Does the minister actually believe that most problems are due to poor productivity? What problems? Lack of adequate healthcare? Lack of quality housing availability? Lack of environmental protections or meaningful climate change preparation? Lack of adequate worker compensation or protections? The huge gap in wealth between the richest and the poorest in Aotearoa? The poorer outcomes across the board for Māori and Pacifica people? High rates of anxiety, depression, and suicide among our youth? Lack of community cohesion among our general population?

Can all of these problems be traced, as the minister says, to poor productivity and poor regulations?

In his first sentence, the Minister betrays what types of problems he feels are important to address. This is a strictly economic concern. One that views New Zealand as a profit generating machine, rather than an interdependent social body consisting of layered interactions and dependencies. One that views the government’s responsibility as being to enable corporate profits and extraction of wealth rather than to provide for the welfare and common good of all citizens.

Of particular concern is that corporations are considered individuals according to the Interpretation Act 1999 and the Legislation Act 2019. Therefore, any rights and privileges attributed to individuals in the bill apply equally to corporations.

Specific comments:

Background

1. Page 10 notes “in its 2023 Briefing for the Incoming Attorney-General, the Legislation Design and Advisory Committee (LDAC), which has responsibility for promoting good quality legislation in New Zealand, noted a tendency towards using legislation in cases where it was not strictly required, or where it covered matters already addressed in existing legislation.”

It is ironic that the Ministry of Regulation’s own review of the proposed bill has said that it is unnecessary, duplicates existing legislation and regulatory processes, and is unclear in how it will achieve what it proposes to achieve. Thus, the Minister’s own bill fails according to the standards he hopes to enforce for other legislation.

2. Page 14 states “The Legislation Design and Advisory Committee (LDAC) promotes quality legislation by engaging with agencies early in the development of policy and legislation to resolve problems in the design of legislation and to identify potential public and constitutional law issues.”

The Minister has not engaged with the relevant agencies, particularly those Māori entities which stand to be greatly affected–or sidelined completely–by this new regulatory arrangement.

3. Page 17 and 18 states that the new bill is patterned after the 2021 Regulatory Standards Bill with the exception of “amendments to some of the principles in the 2021 Bill to better align them with broadly accepted principles and practices”, “establishment of a Regulatory Standards Board rather than giving a role to the courts in finding legislation inconsistent with the principles”, and “new powers and expectations to give effect to the Ministry for Regulationʼs regulatory oversight role.”

It is unclear to what extent the principles proposed by the Minister constitute “broadly accepted” principles. They seem to be phrased in a way that hides their true intent to codify libertarian, individualist, and corporate friendly regulation. If the public truly understood the nature of the principles, I doubt the Minister would find such broad acceptance.

Sidelining the courts seems to be a direct measure taken to nullify any potential mitigating role that the Treaty of Waitangi could play in blocking corporate entities from running roughshod over any existing protections. It seems convenient and an utter conflict of interest that the Minister’s handpicked Regulatory Standards Board will be charged with determining whether legislation is consistent with its principles, with no recourse to the courts in case of disagreement. This arrangement seems likely to encourage narrow, ideological interpretations and readings of legislation which conform to the already narrow and ideological principles.

The bill will give the Minister of Regulation unilateral control over many aspects of the regulatory arrangements. Given the Minister’s clear ideological bias towards an individualist and libertarian/corporate reading of the principles, this is too much power to be given to one person. It is not in the public’s best interest for one Minister to be given this much power over the regulatory arrangements.

Discussion area one

4. Page 20 states “These principles of responsible regulation would act as a set of criteria against which new regulatory proposals or existing regulation could be assessed. The principles would be broad and expressed at a high level. The Bill would require the Minister for Regulation to release guidelines that would set out in more detail how the principles should be interpreted and applied.”

Given the remit of the bill is all existing and future legislation, the specific ways that the principles are interpreted will have a huge impact on the process and outcome of any regulatory oversight. It is therefore inappropriate that the Minister be given the power to dictate how these broad principles should be interpreted and applied. If the principles are too broad for a reasonable interpretation to be reached by the board, the interpretation should be arrived at by the entire board, not according to the bias of the Minister. This would also mitigate any personal biases which Minister’s could bring to the table (provided the board is not hand-picked by the Minister, see suggestion below).

Page 20 further states “These principles are selective rather than comprehensive – for instance, they do not cover all the principles set out in the Legislation Guidelines. Instead, as the Taskforce noted, they “focus primarily on the effect of legislation on existing interests and liberties and good law-making process.”

“Existing interests and liberties and good law-making process” can be defined in a number of different ways and it is unclear what interests and liberties should be prioritized. Also unclear is what is meant by “good” law-making process. What is good to the Minister is likely not good to everyone, so what is meant by this?

Page 20 further states “other principles reflect new formulations of legal principles”. It would be necessary for a detailed accounting of how these new formulations were arrived at what the reasoning behind them is. It would also be important to see how these formulations agree or disagree with current formulations.

5. Rule of law - the proposed bill, at least the 2021 version and from what I can tell of this discussion document, violates at least four if not all five of the aspects of rule of law that it claims are critical to uphold.

-It is unclear until the bill is drafted whether it will be clear and accessible

-Depending on the definitions of relevant liberties, this bill could adversely affect liberty, and the purpose of the bill is to review all existing legislation to ensure compliance so it by definition could impact liberties or impose obligations retroactively

-The bill claims to value equality of all persons before the law but in reality prioritises the rights, liberties, and privileges of wealthy interests and corporations

-The bill sidelines the judiciary

-The bill sets up the board and Minister as a permanent administrative authority to have discretion over regulatory matters and therefore violates this aspect of the principle of rule of law

Liberties - this is a narrow and ideological enumeration of liberties that prioritises ownership and use of property. These are libertarian ideals that fail to consider other important liberties and rights that are critical to human flourishing or to consider the potential good of society as a whole instead of the rights of individuals

Taking of property - this principle seems to be little more than set a precedent to enable corporations to legally challenge any regulations that impact their profits

Taxes, fees, and levies- same criticism as above

Role of the courts - the bill sidelines the courts and places the balance of power with an administrative board

Good law-making - while it is unclear what exactly constitutes “good” law-making the bill as presently constituted fails all aspects of this principle

Regulatory stewardship - based on the evaluation of the Ministry of Regulation this bill fails on this principle

Discussion area two

6. Given the lack of clarity and failure for the bill to meet the standards required by its own principles, its ability to impose compliance on existing or future legislation seems suspect. Depending on the interpretation of the principles on a case-by-case basis, this step would impose an undue burden on any legislation and would greatly hamper the ability to pass timely legislation.

Discussion area three

7. As stated above, the establishment of the hand-picked Regulatory Standards Board is problematic to say the least. If established, this board should be independently chosen. As proposed, the board seems little more than the Minister’s personal taskforce to follow up on investigations that he would like to conduct. Given the ideological slant of the principles, it seems clear that these investigations would have little to do with actual matters of regulatory importance, and would merely serve as a vehicle to roll back worker and environmental protections and barriers to rampant corporate exploitation.

The board could also serve as a repository for like-minded ideological groups to lodge complaints and receive preferential treatment.

The establishment of the Board in lieu of the role of the courts seems to be an obvious sidelining of any considerations having to do with the Treaty of Waitangi

Discussion area four

8. The bill as proposed gives too much unilateral authority to the Minister for Regulation to set expectations and procedures related to the stewardship of other ministers and administrative personnel.

Given the bill’s failure to comply with its own internal logic, it is unclear what this responsibility and authority of the Minister would look like or how it would be put in practice.

Recommendation

I recommend the bill be rejected and no further versions of this bill be considered by Parliament in the future. All other versions of this bill have been rejected previously and there is nothing substantively different in the current version that warrants consideration. The Minister’s own ministry has indicated the bill is unnecessary and will not accomplish what it sets out to. Parliament should take this recommendation and reject the bill.