The Regulatory Standards Bill Proposals - Part 2

A Consideration and the Reaction to the Proposals

This is the second part of a three-part series on the proposals for a Regulatory Standards Bill. The Proposals (there is not a Bill as yet) are contentious. Some might think that the opposition to the Proposals are a reflexive response to anything proposed by the ACT Party.

In this part I examine the responses to the proposals and make some introductory comments about some of the issues raised. I focus on the themes that appear from a selection of submissions and article in opposition.

Responses to the Proposals

There are a number of common themes that arise from the responses to the proposals. I should make it clear from the outset that this analysis is based on a limited number of submissions that were filed but it becomes clear, especially from the submissions opposing the proposals that common themes become clear.

That said, those submissions in favour of the proposals echo some of the themes appearing in those opposing.

One theme was the limited time that was available to craft and file submissions. There were concerns about the insufficient consultation period, especially during the Christmas holiday, and the recommendation for a minimum six-week non-holiday period for public submissions. ​This is associated with a criticism that the proposal is being rushed through the democratic process with limited public consultation. This concern is echoed by the New Zealand Law Society who criticized the proposal for being consulted on hastily, especially over the Christmas/New Year period, which they believed undermines the quality of the consultation process.

Jane Kelsey who was an early critic of the proposals before they were released stated, among other objections, that there had been three earlier attempts to introduce this legislation. Although it was not stated as such, it seems that here objection was based on some form of legislative exhaustion, although there are examples on the statute books of legislation in existence which has been enacted solely because of the tenacity of those proposing it.

Those who object to the proposals are in the majority critical of the principles proposed and do so under five major thematic classifications:

1. Ideological

2. The Libertarian nature of the proposals

3. The imbalanced focus on property rights

4. The emphasis on equality and the omission of equity

5. The absence of any reference to the Treaty of Waitangi.

Dame Anne Salmond expresses a concern that encompasses most of these themes. Salmond’s critique 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 well-being of the population.

She argues that radical libertarian ideologies are contributing to extreme inequality in New Zealand, with policies favoring tax cuts for the rich and reducing support for the poor, such as withdrawing funding from charitable food banks and denying emergency food grants.

Her concerns are that the government is not respecting democratic processes, with policies being ideologically driven and not evidence-based. Public submissions on significant bills are being sought during times when public engagement is low, such as the summer holiday period, which undermines proper democratic debate and engagement.

She is of the view that the proposals prioritize individual and private property rights over social and environmental concerns, which could undermine collective and environmental rights.

Dame Anne’s critique lacks specificity when it comes to ideological and libertarian critiques, using these as shorthand for clearly what she considers to be a wider malaise, but regrettably does not go into specifics.

Like many opponents who object on similar grounds, one can only conclude that the use of the words “ideological” or “libertarian” are used in the sense of “veto” words which need no further explanation and are automatically condemnatory without further explanation or evidence.

Dame Anne does raise five social concerns about the Bill which echo some of the themes that I have identified. These concerns are:

1. Increased Inequality: The bill's emphasis on individual and private property rights over social concerns could exacerbate existing inequalities, favoring the wealthy and powerful at the expense of the poor and marginalized. ​

2. Undermining Public Services: By prioritizing deregulation and reducing government intervention, the bill could lead to the deterioration of essential public services such as healthcare, education, and social welfare, which are crucial for supporting vulnerable populations. ​

3. Erosion of Collective Rights: The bill could strip away collective rights and protections that benefit society as a whole, including labor rights, social safety nets, and community-based initiatives. ​

4. Reduced Social Cohesion: The bill's libertarian principles may foster a more individualistic society, undermining social cohesion and the sense of community that is vital for a healthy and supportive social fabric. ​

5. Impact on Indigenous Rights: The bill could negatively affect the rights of indigenous communities by prioritizing private property and individual rights over collective and ancestral rights, potentially leading to conflicts and further marginalization of these communities. ​

These concerns are clearly indicative of a preference for a collectivist approach to the duties and obligations of Government and a general opposition to what could be considered a more individually focussed approach and a preference for individual self-responsibility rather than the State being the solution for all ills.

The New Zealand Council for Civil Liberties, which might be expected to support initiatives which favour individual liberty echoes the ideological concerns.

It argues that the proposals are based on flawed analysis and reasoning, driven by an ideological motivation that is not aligned with New Zealand's context or past work. The Interim Regulatory Impact Assessment lacks sufficient analysis to justify the proposed legislative changes.

However, there is sparse detail on why the analysis is flawed.

Melanie Nelson is a trenchant critic of the proposals. Nelson considers that the proposal is an ideological blueprint to entrench right-wing libertarian values and neoliberal economic ideals.

These values prioritize property rights and typically emphasize minimal government intervention in the economy, individual freedom, and free-market principles.

Right-wing libertarianism advocates for personal and economic freedom, while neoliberalism focuses on deregulation, privatization, and reducing the role of the state in economic affairs.

She suggests that the proposal is rooted in libertarian ideology, prioritizing property rights and individual freedoms over collective responsibilities, societal needs, and environmental protections and is an ideological blueprint that prioritizes property rights and individual liberties over collective wellbeing, environmental protection, and te Tiriti obligations.

The NZCTU echoes Ms. Nelson’s concerns, considering that the proposals embed ideological beliefs as technical standards, and creating a large compliance burden. These views are echoed by the Public Service Association and the Sustainable Business Network.

Although there was concern about an overemphasis on the protection of property rights on the part of most objectors this theme was especially emphasised by the environmental groups making a submission.

The proposal was seen as prioritizing the property rights of companies over the human rights of individuals, which is contrary to internationally agreed norms and standards for personal liberty and human rights. In addition the proposal was seen as prioritising property rights over public protections, potentially weakening democracy and essential safeguards for the environment and public health.

The New Zealand Law Society pointed out that expressions regarding liberties of the person, personal security, and property in the proposed Bill is seen as incongruous. These concepts were deliberately omitted from the New Zealand Bill of Rights Act 1990 and should not be introduced as "standards" in a Regulatory Standards Bill.

The Commissioner for the Environment argued that the principles do not adequately consider the complexities of environmental regulation, such as the limitations of private property rights, the use of public goods, and their relationship with Te Tiriti o Waitangi.

In addition it emphasised that predictable property rights are important for productivity growth but should not be considered absolute, and that regulations should be able to modify individual property rights when necessary to enhance productivity and maintain ecological services.

The Commissioner advocated for a balanced approach between public and private property rights emphasising that while predictable property rights are essential for productivity growth, they are not absolute and must be balanced against public interests and the management of public goods and common resources.

This highlights that many environmental regulations concern public interests and that regulatory principles should reflect the complexity of managing both private and public property rights and the submission argued that individual rights and liberties cannot alone define the limits of regulation and that public resources, such as water, air, and biodiversity, should be explicitly defined and protected.

The submission also suggests that any use, alteration, or destruction of public resources should require compensation unless explicitly allowed by regulation. Overall, it calls for regulatory principles that consider both private and public property rights, the interests of future generations, and obligations under international law.

Another objection argued that the principles on liberties and taking of property are seen as inappropriate for resource management law, which often deals with conflicts between individual rights and the wider public or environmental interests. Many decisions under the Resource Management Act (RMA) aim for sustainable management rather than focusing solely on individual liberties or property rights.

The focus on property rights was seen as an example of libertarian principles by some objectors.

One objector group considered the proposals would severely constrain future governments from implementing policies such as raising taxes for climate change initiatives or redistributing income, due to its emphasis on protecting property rights.

They believe it is fundamentally anti-democratic, prioritizes individual property rights over collective democratic rights, and would severely constrain the ability of future governments to implement policies for distributive justice and public welfare. They argue that the proposal promotes inequality and undermines the concept of collective decision-making in a democratic society.

The same objector group considered the proposal anti-democratic for several reasons:

1. Prioritization of Individual Liberties: The proposal emphasizes individual liberties and property rights over collective democratic rights and distributive justice, which is viewed as undermining the principles of democracy. ​

2. Constraints on Government: The proposal would severely limit the ability of democratically elected governments to implement policies such as raising taxes for public welfare or climate change initiatives, as these would be assessed against principles like the protection of property rights. ​

3. Inequality Before the Law: The proposal principle that "every person is equal before the law" is seen as misleading because it inherently favors those with more property and resources, thus perpetuating inequality. ​

4. Undermining Collective Decision-Making: The proposal of people coming together to form collective agendas and make collective decisions, which is a core aspect of democratic governance. ​

5. Historical Rejection: Former Bills have been rejected multiple times by various entities, indicating a broad consensus against its principles and approach. ​

Overall, the objector group believes the Bill's focus on individual rights at the expense of collective democratic processes and social justice makes it fundamentally anti-democratic. ​

The objections to the omission of the Treaty of Waitangi focus on the absence itself as a problem as well as an example of favouring equality over equity.

Vocal critic Melanie Nelson developed a template for submissions on the proposals which summarise the argument.

I note that she refers to the Bill which is a error on her part. Clearly she means the proposals.

1. The proposed Regulatory Standards Bill does not honor Te Tiriti o Waitangi and instead stresses "equality," which ignores the historical and ongoing discrimination against Māori. ​

2. Māori have not been treated equally under the law, with historical and current laws and systems discriminating against and harming Māori in areas such as land ownership, education, health, criminal justice, and child protection. ​

3. Te Tiriti o Waitangi recognized Māori tino rangatiratanga (total authority) over their lands, resources, and lives, which was not ceded to the Crown, contrary to what is stated in the English version of the Treaty of Waitangi. ​

4. The proposed Bill would give more power to the Ministry for Regulation to review existing laws and regulations based on principles that stress "equality" and ignore Te Tiriti o Waitangi. ​

5. The proposed Bill should not be drafted, and Aotearoa must work towards honoring Te Tiriti o Waitangi. ​

Likewise, Jane Kelsey noted that the bill's silence on Te Tiriti o Waitangi/the Treaty of Waitangi has been a point of contention, as it fails to consider the treaty's significance in New Zealand's legal and regulatory framework.

The World Wildlife Fund noted that the proposal fails to address how it will meet obligations under Te Tiriti o Waitangi and potentially narrows the role of the New Zealand Bill of Rights Act in law-making and regulatory systems.

The Sustainable Business Network was more outspoken. It argued that the proposal does not refer to Te Tiriti o Waitangi, reflecting an ideological desire to downplay or ignore commitments and obligations to Māori, which should disqualify the Bill from further consideration without addressing this omission.

However there is a common theme running through the submissions in support and in opposition and that it that a clear framework for regulatory activity is desirable. It is the nature of the framework that is contentious.

One supporter highlighted the need for compensation when government regulations restrict the use of private property, ensuring property rights are respected and expressed support for the establishment of a Regulatory Standards Board to ensure independent assessment and oversight of regulatory quality, and the need for regular reviews of the Regulatory Standards Bill.

Another supporter supported the proposal for the Regulatory Standards Bill because it aims to enhance the quality of regulation by ensuring that regulatory decisions are based on principles of good law-making and economic efficiency. This is particularly important for industries which are heavily regulated.

​Another supporter advocated for responsible regulation that avoids excessive or poor-quality regulation. Specifically, it argued the proposal will:

1. Enhance the quality of regulation developed by public bodies.

2. Ensure transparency and thorough analysis through extended disclosure requirements.

3. Promote better policy development by public bodies through a formal statement of Government expectations.

4. Strengthen the consultation process, ensuring public bodies undertake appropriate consultation.

5. Improve compliance monitoring and reporting, demonstrating how agencies meet Government objectives.

One supporter expressed support for a Regulatory Standards Board.

The benefits of having an independent Regulatory Standards Board include:

1. Expertise and Independence: The board would bring a broad cross-section of expertise and remain independent of the government, ensuring unbiased assessments and recommendations.

2. Addressing Inconsistencies: It would handle complaints about regulatory inconsistencies, implementation issues, and the content and design of legislation, helping to ensure regulations are clear and effective.

3. Prompt Fixes for Flawed Regulations: The board would provide a mechanism to promptly address and fix flawed regulations, giving confidence to industries affected by such regulations.

4. Regular Reviews: The board could undertake reviews on its own or at the direction of the Minister for Regulation, ensuring ongoing oversight and improvement of regulatory standards.

5. Public Engagement: There may be opportunities for public submissions on the board's reports, enhancing transparency and stakeholder involvement in the regulatory process.

Overall, the board would help improve the quality and consistency of regulations, benefiting both the minerals sector and the broader economy.

This has been a snapshot of some of the themes appearing in the submissions and commentary that I have been able to research. I believe that they are representative of the arguments in favour of the proposals and opposed to it.

Commentary