Open Letter Calls For Halt To The Undemocratic Regulatory Standards Bill
Each of us has written extensively and spoken out against this Bill from our respective areas of expertise. Many of us have done so for the three previous iterations of this Bill when it was promoted unsuccessfully by the Act Party and the Business Round Roundtable (later, the New Zealand Institute).
On each of those occasions Parliament has rejected the Bill as philosophically and legally unsound, profoundly undemocratic, and contrary to Te Tiriti o Waitangi.
This time the Act Party has sought to bypass rigorous parliamentary scrutiny by securing commitments from the National and New Zealand First parties to legislate the Bill into law. There was an opportunity for public submissions on the proposal late last year, where it secured the support of only 0.33% of the over 23,000 New Zealanders who expressed their views on the consultation document. It is evident that the advice in virtually all the submissions was ignored by the government.
The Bill could have profound constitutional consequences. It establishes a set of principles as a benchmark for good legislation/regulation, many of which are highly questionable and designed to establish a presumption in favour of a libertarian view of the role of the state - one that ceased to have any currency globally more than a century ago. Te Tiriti o Waitangi has been excluded altogether. The power vested in the Minister for Regulation and a ministerial-appointed board is not subject to the normal accountabilities of Crown entities, conferring significant yet largely unaccountable authority on the executive.
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Dr Jim Salinger, 2024 New Zealander of the Year, further notes the chilling effect the Bill will have on any future policy on climate change and adaptation following the almost $4 billion cost of the 2023 Auckland Anniversary weekend floods and Cyclone Gabrielle, the highest in our history.
While there is a select committee review of the Bill, it is truncated and circumscribed. The Coalition government has decided to submit the Bill to the Finance and Expenditure Committee rather than the Justice Committee, limiting the time to hear many tens of thousands of oral submissions to just 30 hours – at most 360 submissions - with 5 minutes per submitter, and truncating the period for those hearings and the committee's report, further exposes the hypocrisy that this Bill is about good governance, better laws, improved regulation, greater transparency and enhanced governmental accountability. We are gravely concerned that the National Party and New Zealand First appear to be complicit in this undemocratic process.
We have each thought long and hard about whether to say we want to challenge this Bill before the select committee, lest it give some credibility to a process that is devoid of legitimacy. Some of us, such as Professor Dame Anne Salmond, 2013 New Zealander of the Year, and Professor Andrew Geddis, made written submissions, but feel there is no point in participating such a harmful process.
Professor Emeritus Jonathan Boston, Dr Geoffrey Bertram, Dr Bill Rosenberg and Dr Max Harris have indicated they want to address the committee to reinforce their submissions. In Professor Boston's view: 'The current Bill is destined to have a very short and ignominious life as an Act of Parliament: it enjoys virtually no public support; it lacks cross-party backing; it is opposed by the very Ministry that will be responsible for its implementation; and it endorses principles that have been found wanting by multiple generations of people throughout the world".
In similar vein, long-standing academic critic of the Bill Professor Emeritus Jane Kelsey feels a responsibility 'to speak truth to power' - in this case the abuse of proper process and the Act Party's ongoing contempt for Te Tiriti o Waitangi.
For a time it appeared the Sir Geoffrey Palmer, former Prime Minister and Minister of Justice, Professor of Law at Te Herenga Waka/ Victoria University of Wellington, author of numerous books on parliamentary constitutinalism, and staunch critic of the Bill, was originally not invited to address the select committee, despite saying but he wanted to be heard. He was subsequently offered an opportunity.
All of us appeal to the National and New Zealand First parties to find their democratic voice and prevent this Bill from proceeding past the select committee.
Equally importantly, they are calling on Speaker of the House Gerry Brownlee, as the Chair of the forthcoming review of Standing Orders, to conduct a first principles review of the select committee processes to find an appropriate balance for democratic participation in the digital era, and an effective way to reinstate some degree of integrity and rigorous review to law-making in Aotearoa New Zealand.
Dame Anne Salmond
Sir Geoffrey Palmer
Professor Emeritus Jonathan Boston
Professor Andrew Geddis
Dr Jim Salinger
Dr Geoff Bertram
Dr Bill Rosenberg
Dr Max Harris
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"We used the tool to analyse views on issues, including numbers for/against, and to provide us with a summary of views which we then used when writing the first draft of our deliberations report to council. "This report went through multiple iterations as we edited it, but AI was able to give us a starting point which we then developed into a final draft." Xinyu Fu, a senior lecturer in environmental planning at the University of Waikato, organised a pilot project with Hamilton City Council analysing thousands of public submissions on planning proposals. "A lot of them are facing stresses on analysing public submissions," he said of local planners. "Planners spend a lot of time going through those public submissions and those are very laborious work." What exactly are they using AI to do? Prompts - instructions, questions and information put into generative AI - are used to direct it. In Hamilton, Fu's research paper explained that "we tasked ChatGPT with extracting five key elements from public feedback: 1) political stance (support, opposition, or unspecified), 2) reasons from submitters, 3) decisions sought by submitters, 4) sentiment of the submission (positive, negative, or neutral), and 5) relevant planning topics." "AI models are sensitive to prompt phrasing so a slight change in prompt may result in changes in its responses," Fu said. With the Regulatory Standards Bill, public feedback on the discussion document last year drew 22,821 submissions. (The feedback to the select committee on the bill itself is still being processed and is confidential until the Finance and Select Committee releases that information.) In a summary of submissions, the Ministry for Regulation said that all submissions on the then-proposed bill were analysed using a Large Language Model (LLM) AI, and it worked with the independent research organisation Public Voice. "All emails and Citizen Space submissions (a digital tool that submits an online form) were assigned a preliminary classification by Public Voice using a LLM that followed a logic model created by the Ministry, analysing it and classifying it as supporting, partially supporting, opposing the bill or unclear on its stance." The majority of submissions on the proposed bill were analysed by AI. However, the summary also said that in a qualitative analysis sample, 939 of those 22,821 submissions were examined by Ministry for Regulation staff to "analyse the themes raised in submissions and feedback on specific policy proposals." That process "involved several staff across the Ministry manually reviewing the sample of submissions (both email and Citizen space submissions) and applying thematic tags." Another 605 submissions were also looked at separately. Submissions made in te reo Māori were translated. "Our approach was carefully designed to reflect all submissions in the final analysis, noting there were many similar points made across most of the submissions," the ministry's deputy chief executive Andrew Royle told Newsroom. How much human scrutiny is applied to the process? Can the AI avoid a bias? "As a rule of thumb, having humans in the loop will be the best practice - humans in charge and AI as a co-pilot," Fu said. "The risk is very high if we completely rely on AI to do the work. To put simply, such biases are generally embedded in our institutions as well as the information humans generated, and these biases are then input into the model to train. Then they become inherent to the model. Because AI systems are black boxes, it is uncertain and unclear about the nature and degree of these biases." Nelson Council's McDonald said they were transparent about how they were using AI. "Every submission form included a statement saying we'd be trialling AI to help speed up submission processing and reduce the resource burden on staff. "We intentionally ensured there was always a (sceptical!) human in the loop sense checking the tool's outputs. Staff (and elected members) read every submission and we had processes to check AI responses." Fu said there are differences in how AI approaches looking at thousands of public submissions. "AI is really good at consistency (if instructed properly) whereas humans are likely to miss things due to fatigue, boredom, or bias towards particular viewpoints (humans are biased too). "AI can do things much faster than humans, and AI's work can be more transparent if designed well because you can ask AI to document its processes and responses for later review and replication. On the downside, humans excel in knowing about the contexts, while AI knows little about the local contexts and backgrounds." Is there a risk that people's voices aren't being heard? "I absolutely think that a regular practice of AI analysis of submissions risks undermining people's confidence in the democratic process and thus the legitimacy of government," Victoria University's Clark said. He said there was a need for more options for people to consult on legislation. He noted in the case of the Regulatory Standards Bill, the pre-legislative consultation was conducted mostly over the holiday period from mid-November to mid-January. This "leads to people seeing the Select Committee stage as their only real chance to comment, incentivising mass submissions expressing simple opposition or support", Clark said. "Giving people a chance to be heard throughout the process, not just at Select Committee, could help deal with the problem. There is a reason the legislative process is generally slow and deliberate, and derailing that good, democratic process has consequences. In my opinion the glut of submissions at the Select Committee stage is one of them." Labour MP Duncan Webb spoke out about the government's use of AI on the Regulatory Standards Bill submissions, writing on social media site BlueSky that it "turns out democracy under this government is real people making submissions and computers reading them". When contacted by RNZ, Webb said he is not opposed to the use of AI, but concerned about how it is used in the democratic process. "New Zealanders who take the time to share their views deserve more than a computer reading their submission. "AI can help with sorting large volumes of submissions, but it can't replace the value of reading someone's views, like the handwritten letter from an 85-year-old or a bundle of colourful drawings from school kids. These submissions often reflect deeply held experiences and emotions, and politicians need to read them." However, Fu said that in local government planning the use of AI in analysis could give staff more time to work with local and underrepresented communities. "Planning has become very reactive," he said. "If we can use AI planners then planners can actually do better work because otherwise they're overwhelmed." A lot of the submissions made on local planning tend to be by developers, Fu said. He said planners could use the time to reach out to communities whose voices aren't heard as often in public submissions, including Māori. What about privacy? When it comes to privacy, public submissions are already just that - public. All submissions sent to select committees become public and are posted on Parliament's website and become part of the permanent parliamentary record - they can only be removed in exceptional circumstances by the Clerk of the House. "They know their submission will become public," Wilson said of submissions. "Our staff are going to read it, officials will read it." "The main privacy concern is about people's contact details - they are always separated from submissions now." Contact information is removed from public submissions before they are posted publicly but Wilson said privacy is one reason to be cautious of the use of AI in analysing them. "We want to make sure we've got a key set of principles and some business rules in place," Wilson said. The government unveiled its first national AI strategy earlier this month mostly aimed at economic growth, "unlocking innovation, productivity, and smarter decision-making across New Zealand" and responsible AI guidance for businesses "to overcome concerns about ethics and complexity." In Nelson, McDonald said they also considered privacy issues. "The submissions, numbering 1505, were redacted of all personal data before they were processed to ensure there were no privacy issues - this is something we would do anyway, before all submissions are uploaded to the Council website for public view." Where should AI not be used? Most agree AI should never be making decisions on policy, however. "What I don't think I can do - and I wouldn't trust it to do anyway - is make judgements," Wilson said. "Nobody's going to predict what's going to happen next month in the AI space because it's evolving so rapidly," Fu said, noting that hyperbole over AI is everywhere at the moment. "We're still in that hype space ... I think we need to start thinking about the responsible use." And for some, there's still a question as to whether the technological advances of AI might be leaving something behind. "In short, democracy takes money and time," Clark said. "Trying to avoid the necessary costs of democratic infrastructure has consequences, and while I understand why the hard-working people in our underfunded and rushed systems might see AI as helpful in these circumstances, in my opinion it will not solve the underlying issue and could unintentionally undermine people's faith in a democracy that cares about their voices."
