- The Bill makes an undemocratic attempt by a minority political party and its allies in the current government to define New Zealand law making and regulation in terms of their own ideology.
New Zealand’s MMP system is intended to ensure the fullest possible representation of all political outlooks within the nation. The Act Party, which is driving this Bill and the accompanying Ministry, is a minority party only in power due to that system.
Parties with different and even opposing views on legislation and regulation have recently and frequently been in government in this country. This should be enough to suggest redrafting at least the ideological aspects of this Bill to better reflect our vibrant democracy.
- The Bill as drafted is likely to lead to parallel and duplicate processes between parliament and the proposed Regulatory Standards Board. The proposed Board and accompanying Ministry will presumably be granted sufficient resources and statutory instruments to at least materially affect legislation in the direction it proposes.
In this regard we agree with the assessment made in the Regulatory Impact Statement that the Bill is: “likely to impact on the respective balance of powers between Parliament and the judiciary, invite a level of judicial interference which may seek to undermine Parliamentary supremacy in passing legislation, and introduce significant ambiguity in New Zealand’s legal and constitutional landscape.”
However, the Discussion Document states that the Board decisions and responses to complaints will be “nonbinding recommendations independent of Ministers and agencies.”
As such, the entire Bill proposes a vastly elaborate and expensive manner for the Minister of Regulation to publicly pursue political points based on his own ideology and personal views about how law should be made in New Zealand.
But the Bill also seeks to place undue influence in the hands of the Minister: “The proposed approach would therefore enable the Minister for Regulation to determine which types of regulation are required to comply with consistency requirements.” The Minister for Regulation is, conveniently, David Seymour, the proposer of this Bill and the holder of the political views it so plainly seeks to enshrine in New Zealand law.
The effective result of this can only be that for the time being David Seymour receives, by law, undue publicity for his views on what kind of law this country New Zealand should have and the accompanying enhanced ability to stifle the views of others.
- The political view informing the bill includes an undue, almost myopic, emphasis on one view of the economy’s role in a democratic nation. This tends to conflate the entire nation with that economy, as if they were one and the same.
For example, the Minister’s foreword begins:
‘Most of New Zealand's problems can be traced to poor productivity, and poor productivity can be traced to poor regulations.”
This is an extremely narrow assessment of the “problems” faced by a relatively small, post-colonial nation in the remote Pacific in the meta-crisis of climate change, pollution, biodiversity loss and global resource depletion. It suggests a studied or deliberate ignorance of an enormous range of other factors. It betrays an attempt to pre-empt and narrow debate and consideration of the issues we face to only economic considerations.
It is simply not the case that all New Zealand law must or should be primarily focused on “economic growth and productivity”. Aotearoa New Zealand is a nation, not simply a commercial venture. It is this kind of narrow focus on economic growth that is driving the global crisis.
- The Bill seeks to improve our democracy without referring to the document on which that democracy is based. It deliberately fails to refer to Te Tiriti o Waitangi or the Treaty of Waitangi. This betrays the ideological desire of its authors to at best downplay and at worst ignore the commitments and obligations within them. This omission alone should disqualify the Bill from further consideration without this being addressed.
This is also implicit in the proposed Legislative Design Principles that:
- “the law should not adversely affect rights and liberties, or impose obligations, retrospectively”
- “every person is equal before the law”.
And the accompanying similar statements on “Liberties” and “Taking of Property”.
This Bill is authored by the same minister who has put forward The Principles of the Treaty of Waitangi Bill. That made an even more blatant attempt to ignore the realities of Aotearoa New Zealand’s colonial history and its subsequent commitments and obligations.
With that in mind, it seems likely that these “principles” are actually a further thinly veiled, but highly specific attempt to find ways to argue against reparative action to redress the Crown’s colonial history and repeated breaches of its Tiriti/Treaty obligations to Māori, especially with regard to land rights.
They also seek to assess legislation in line with a certain kind of self-evidently libertarian, neo-liberal capitalist politics. This reflects their author’s political views, rather than the broader and shifting views of the nation over time.
Similarly, political bias is acutely evident in the “Taxes, fees and levies” section. Essentially, this section proposes means of cementing economic inequality in this country by arbitrarily reducing taxation and levies. It seems specifically designed to undermine the proposition of any form of wealth redistribution, welfare spending, or the use of taxation or regulation to promote positive social behaviour. For example, under these principles it would presumably be seen as “bad law making” to create a capital gains tax on multiple home owners in light of a lack of regulation driving economic inequality.
This, of course, is the declared position of the Act Party and to some extent the current government proposing this Bill. But here again, this is not a view universally shared by other political parties, or the hundreds of thousands of Kiwis who vote for them. As such, one political grouping’s views should not be used to attempt to frame how our legislative process works.
- Given the approach taken in the rest of the Bill and elsewhere by its authors, the idea that “Unnecessary regulatory burdens and undue compliance costs should be eliminated or minimised” also creates cause for concern.
Among the many things the current government considers “unnecessary regulatory burdens” are:
- removing the addictive and harmful sale of tobacco to future generations
- banning deep sea oil drilling off our shores in a climate crisis
- taxing high emissions vehicles to support the necessary transition to electric vehicles
- promptly including the nation’s largest greenhouse gas emissions generator in its Emissions Trading Scheme
- paying capital gains tax on multiple property ownership in an economy marked by spiralling house prices, a chronic lack of investment options and growing economic inequality
It is far from clear that such contentions with our physical reality should be enshrined in law. They certainly shouldn’t become embedded in the very scope of what we should or shouldn’t make law about.
One person’s “unnecessary regulatory burden” is another person’s “safeguard for society”. Parliament as a whole is the place where that should be deliberated on. It should not be the purview of a single Board proposed by a single government, let alone one minority party as part of a power sharing agreement.
What we would like to see
- Robust regulatory standards can be a powerful driver of positive change, enabling businesses to thrive while contributing to the greater good of society and the planet.
We know from decades of working with New Zealand businesses that regulations assist them to integrate environmental and climate stability into their operations. A clear and consistent regulatory framework will encourage businesses to innovate and invest in sustainability as a long-term business strategy. This will make protecting and restoring environmental health not just an obligation, but a driver of competitive advantage and innovation.
Businesses adapt their strategies and operations to align with whatever regulatory frameworks are active. It’s essential that they offer a clear, future-focused vision that integrates community benefits, climate action and environmental health. Doing so will encourage and foster business innovation and encourage businesses to think and act differently.
To be effective, regulations and regulatory processes should be consistent, strategic, transparent, proportionate, based on evidence and maintained and updated as needed.
Regulations must also ensure they benefit all, not just a small number of vested interests, but the wider community, including iwi/hapū.
This means that any proposed regulatory standards must properly align private sector goals with public interests, including a healthy environment and stable climate.
- Good-faith consultation
Regulatory standards must explicitly encourage meaningful consultation with all stakeholders, from communities to environmental groups to Māori. This approach will help foster trust and collaboration, which will, in turn, drive innovation and create long-term value for both businesses and the communities in which they operate.
Any proposed regulatory standards should prioritise good-faith consultation, ensuring businesses are actively engaged in transparent dialogue with all relevant stakeholders. This will foster more inclusive and sustainable outcomes, where businesses incorporate diverse perspectives into their operations and decision-making processes, and align with the broader social and environmental objectives of their communities.
- Evidence-based decision-making and the Precautionary Principle
Evidence-based decision-making is the cornerstone of business innovation and international success. As businesses align with regulatory frameworks that prioritise precautionary approaches where evidence is uncertain, they will be incentivised to develop solutions that are resilient and forward-thinking.
Any proposed regulatory standards must emphasise evidence-based decision-making and the application of a precautionary approach where uncertainty exists. By adopting these principles, businesses will be encouraged to take proactive measures to mitigate risks and reduce potential harm, fostering a culture of responsible innovation. This approach will enable businesses to build long-term resilience, reduce environmental risks, and seize new opportunities for growth.
- Tikanga and Te Tiriti o Waitangi as a value and intergenerational benefit
In Aotearoa New Zealand, recognition of the importance of tikanga Māori and Te Tiriti o Waitangi is spurring uniquely culturally informed sustainable innovations.
This should be explicitly encouraged in any proposed regulatory standards. This includes encouraging partnership with Māori communities and ensuring that Māori values are respected in both policy and practice. This approach will enable businesses to foster long-term, mutually beneficial relationships with Māori, driving both innovation and cultural sustainability.
- A Parliamentary Commissioner for regulatory oversight not a Minister.
We support the Environmental Defence Society’s recommendation for an independent Parliamentary Commissioner. This will offer businesses the assurance that regulatory oversight is fair, transparent and impartial. This will allow businesses to plan with confidence, knowing that their operations will be held to consistent, fair standards. It will also create an environment where businesses can rely on a trusted body to resolve disputes and navigate complex regulatory environments.
The Parliamentary Commissioner will play an essential role in overseeing regulatory frameworks that promote innovation and responsible business practices. By ensuring impartial oversight, businesses can focus on long-term goals without the fear of unpredictable or biased regulatory interventions, allowing them to plan with certainty and confidence in their sustainability efforts.
Conclusion
The current Bill is fatally flawed by narrow political ideology and should be redrafted or abandoned.
SBN supports the development of a clear and robust regulatory framework, provided it:
- aligns with long-term aspirations for community well-being, climate action and environmental health
- incorporates principles such as aligning private and public interests, promoting evidence-based decision-making, and respecting tikanga and Te Tiriti o Waitangi
- includes clear guidelines in good-faith consultation, and has independent oversight beyond the government of the day