Anne Salmond: What's wrong with the Regulatory Standards Bill

Newsroom

15 hours ago

Opinion: The Regulatory Standards Bill (RSB) is a dangerous piece of legislation, inspired by libertarian ideas that seek to free the flow of capital from democratic constraints.
In a number of respects, it expresses a contempt for collective rights and responsibilities, public goals and values, and liberal democracy.
First, it lacks a strong democratic mandate.
At the last election, Act was the only party to put forward such a proposal, and it won only 8.6 percent of the vote; 91.4 percent of voters did not support that party. This bill cannot remotely be taken to express 'the will of the people.'
Second, the majority party, National, agreed behind doors – despite its prior opposition for almost two decades – to support this proposal from a fringe party during coalition negotiations.
Like the Treaty Principles Bill, this undermines the principles of proportionality and accountability to the electorate on which the MMP electoral system is based. That, in turn, corrodes trust in democratic arrangements in New Zealand.
Third, the bill seeks to put in place a set of principles, largely inspired by libertarian ideals, that would serve as a benchmark against which most new and existing legislation must be tested.
These principles focus on individual rights and private property while ignoring collective rights and responsibilities and values such as minimising harm to human beings and the wider environment.
Fourth, this legislation is to be applied retrospectively, applying to all existing laws as well as most new laws and regulations. Rather than upholding sound law-making processes in New Zealand, it radically undermines them.
Fifth, the structures and processes this bill seeks to put in place are profoundly undemocratic.
It aims to establish a 'Regulatory Standards Board' selected by the Minister for Regulation, the Act leader, and accountable to him, with the legal right to initiate inquiries into all laws and regulations, past and present, that offend against Act's libertarian ideas.
This attempt to gain ideological oversight over the legislative and regulatory activities of all other ministers and government agencies constitutes a naked power grab. Such an arrangement is repugnant to democracy, and must not be allowed to proceed.
Sixth, as the minister's own officials and many others have pointed out, this bill is unnecessary.
Structures and processes to monitor and enhance the quality of laws and regulations already exist. These are accountable to Parliament, not to a particular minister, as is right and proper. They may be strengthened, as required, and must remain rigorously independent from any particular political party.
Seventh, there is little reason to trust the integrity of Act's professed intentions in relation to this bill.
Although it is claimed the Regulatory Standards Bill is designed to promote robust debate, rigorous scrutiny and sound democratic processes in law making in New Zealand, in practice, Act ignores these at will. The retrospective changes to pay equity legislation it promoted is a recent case in point.
Eighth, New Zealand already has too few checks and balances on executive power. The fact this bill, with its anti-democratic aspects and lack of an electoral mandate, is in front of a select committee demonstrates why constitutional reform to protect citizens from executive overreach is urgently needed.
Ninth, and perhaps worst, the practical effect of this bill attempts to tie the hands of the state in regulating private activities or initiatives that create public harm, by requiring those who benefit from laws or regulations to compensate others for the losses of profit that may arise.
As many experts have pointed out, under such an arrangement, taxpayers may be required to compensate tobacco companies for regulations that reduce their profits by seeking to minimise the negative health and economic impacts of smoking; mining, industrial forestry and other extractive industries for regulations that seek to minimise environmental harm and damage to communities; and many other activities in which capital seeks to profit at the expense of others.
The accumulation of wealth and power by the few at the expense of the many is precisely what is undermining other democracies around the world.
It is inimical to the very idea of democracy as government 'of the people, by the people, for the people,' in which governments are supposed to serve the interests of citizens, not of capital or corporations.
As social cohesion is undermined by radical inequality and an over-emphasis on private property and individual rights, the danger is that it tips over into anarchy; and by removing limits on the right to accumulate wealth and power at the expense of others, into oligarchy. We are seeing something like this in the United States at present.
Around the world, democracies that were once strong are collapsing. It is the responsibility of our Parliament to ensure that this does not happen here.
Act's attempt to paint this bill as an innocuous attempt to promote good law-making in the interests of citizens is disingenuous, and should be recognised as such.
Rather, this is a dangerous bill that attacks the fundamental rights of New Zealanders, and democratic principles. It must not be allowed to pass.