Treaty Principles 2.0? Hearings Begin Into Seymour's Regulatory Standards Bill
Starting Monday morning, the Finance and Expenditure select committee will reconvene for about 30 hours over four days to hear public submissions on the lightning rod Regulatory Standards Bill.
The bill - championed by ACT's David Seymour - sets out "principles of responsible regulation" and would require ministers to explain whether they are following them.
It would also set up a new board to assess legislation against those benchmarks.
But while it may sound dry and technical, the legislation has become a flashpoint in a wider debate about the country's constitution, te Tiriti o Waitangi, and competing ideologies.
Among the submitters on day one: former prime minister Sir Geoffrey Palmer, former Green MP Darleen Tana, Transpower, and the Royal Australian and NZ College of Psychiatrists.
What's in the bill?
The bill lists principles that Seymour believes should guide all law-making. These include:
Respect for the rule of law
Protection of individual freedom and property rights
Keeping taxes and fees fair and reasonable
Proper consultation and clear cost-benefit analysis
Ministers introducing new laws would have to declare whether they meet these standards, and justify those that do not.
The new Regulatory Standards Board - appointed by the Minister for Regulation - could also review older laws and make non-binding recommendations.
"We need to make regulating less rewarding for politicians by putting more sunlight on their activities," Seymour told Parliament in May.
Why are people so upset?
Opposition to the bill has been intense. An early round of consultation last year attracted about 23,000 submissions, with 88 percent in opposition and just 0.33 percent in support.
Seymour has dismissed that as "meaningless" and initially claimed many of the submissions had been created by "bots". He later walked that back, but maintained they were driven by non-representative online campaigns.
It is true campaign groups have provided templates for submissions or even offered to write them on people's behalf.
But the pushback has come from far and wide: lawyers, academics, advocacy groups and public servants. Even Seymour's own Ministry of Regulation has raised concerns.
Seymour has labelled much of the criticism "alarmist" and grounded in misinformation. He's also targetted some critics on social media, accusing them of having "derangement syndrome" and conspiracy thinking.
The most common criticisms are:
1. That it elevates ACT's values above all else
Critics argue the bill embeds ACT's political ideology into law, particularly its emphasis on individual rights and private property, while ignoring other considerations.
Notably, te Tiriti o Waitangi is not mentioned in the bill - an omission which critics fear could undermine the Treaty's legal status and influence.
Seymour says he has yet to hear a convincing reason why the Treaty should get special consideration when evaluating good law-making.
Critics also object to the principle of individual property rights being given prominence over, say, collective rights.
They fear the bill could dissuade governments from introducing rules that protect the environment, or restrictions on tobacco and alcohol, because that might be seen as breaching the listed principles.
Even though the government could still pass those laws, critics worry it would send a message that profits and property are more important than public health or environmental protections.
For his part, Seymour is unapologetic about the principles proposed and open that he wants to reset the culture of government.
"If you want to tax someone, take their property, and restrict their livelihood, you can, but you'll actually have to show why it's in the public interest," Seymour says.
2. That it's a solution in search of a problem
New Zealand already has a raft of systems in place to check laws are made properly.
For example, Cabinet's Legislation Guidelines require ministers to follow best practice principles - including the rule of law, human rights compliance and consultation.
The Legislation Design and Advisory Committee, made up of experts and officials, also provides detailed feedback on bills, and Treasury checks the impact of major policy decisions.
As well, Justice officials and Crown Law conduct Bill of Rights vetting of legislation, with the Attorney-General required to report any breaches.
Critics say this bill just adds another layer of process - increasing cost and workload for little benefit.
To that, Seymour says: "If the public service think being required to justify their laws is a faff, imagine what it's like for the public they have to serve who are obliged to follow them."
3. That it is a corporate power grab
A lingering concern has been whether the bill could open the government up to legal challenges or claims for compensation - especially from large corporations.
Among its principles, the bill does include the concept that property should not usually be taken without consent and "fair compensation".
But the legislation also clearly states that it does not create any new legal rights or obligation enforceable through the courts.
That means companies would not have a new avenue to sue the government if a law affected their property or profits.
Still, critics argue that simply embedding the principle in law could alter expectations over time. Businesses or lobby groups, for example, might point to it to put pressure on ministers to avoid certain policies.
As well, lawyers say the courts could take note of the new principles when interpreting legislation or reviewing regulatory decisions elsewhere.
The political debate
The National-ACT coalition agreement includes a firm commitment to pass the bill through into law - though not necessarily in its current form.
Prime Minister Christopher Luxon says the government will pay close attention to the select committee process and remains open to changes.
"The devil is in the detail," he told reporters on Friday.
New Zealand First leader Winston Peters has described the bill as "a work in progress" and has indicated his party wants changes. He has not specified which provisions in particular concern him.
The opposition parties, Labour, the Greens and Te Pāti Māori, have already promised to repeal the bill if elected next year.
That means, for all the noise, the bill's practical impact may be limited, affecting only the parties introducing it - which presumably would adhere to these principles whether they were codified in law or not.
The select committee hearings will run from 8:30am till 5pm, Monday through Thursday.
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Much of the criticism on the first day was on the principles in the bill, which critics said elevated ACT ideology above health or environmental concerns. The bill lists principles that Seymour believes should guide all law-making. These include: Ministers introducing new laws would have to declare whether they meet these standards, and justify those that do not. A new Regulatory Standards Board, appointed by the Minister for Regulation, could also review older laws and make non-binding recommendations. "This Regulatory Standards Bill does not prevent a government or a Parliament from making a law or regulation. What it does do is create transparency so that the people can actually watch and understand what their representatives are doing," Seymour said. But Sophie Bond, associate professor of geography from the University of Otago, said the principles would embed "libertarian ideology" at a constitutional level. "The bill would not withstand an evaluation under even its own narrow terms. It's ill conceived, poorly drafted and undemocratic," she said. Similarly, Kirsty Fong from Asians Supporting Tino Rangatiratanga said it would "embed the ACT Party values and principles that are rooted in libertarian ideology that elevates individualism and profit at the expense of wellbeing". Criticism was also directed at what was not in the bill: there is no mention of Te Tiriti o Waitangi. This led Rahui Papa from Pou Tangata National Iwi Chairs Forum to compare it to the Treaty Principles Bill, which was voted down at its second reading earlier this year. "We think this is a relitigation of the Treaty Principles Bill under another korowai, under another cover. So we say the attacks keep on coming." Unlike the Treaty Principles Bill, the Regulatory Standards Bill has more chance of success. National's coalition agreement with ACT contains a commitment to pass the bill through into law. Natalie Coates from the Māori Law Society said Te Tiriti could not be "unstitched" from lawmaking. "Its absence isn't, of course, a drafting oversight, but a deliberate omission that bucks a clear break from constitutional best practice and our treaty obligations." She doubted, however, whether adding a treaty clause would fix the rest of the "fundamental problems" she saw in the bill. Seymour said he was yet to hear an argument about why Te Tiriti should be included. "If you can find any person that would give me a practical example of how putting the Treaty into Regulatory Standards Bill would change the outcome in a way that's better for all New Zealanders, then I'm open minded. I have been the whole time," he said. "But so far, not a single person who's mindlessly said 'oh but it's our founding document, it should be there' can practically explain how it makes the boat go faster." He acknowledged there were existing tools like Regulatory Impact Statements and the Regulations Review Committee, but questioned whether they were effective. "What we're doing is taking things that the government already does in different ways, and we're putting them together in one black letter law that governments must follow so New Zealanders have some rights. There's nothing really new here," he said. While the majority of submitters were opposed to the legislation, Ananish Chaudhuri, professor of Experimental Economics at the University of Auckland spoke in favour. "It puts ideas of effiency and a careful weighing of the costs and benefits of proposed regulation at the heart of the legislative process," he said. Former Prime Minister and constitutional lawyer Sir Geoffrey Palmer was among the first speakers on Monday - arguing it's a bizarre and strange piece of legislation. 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The bill takes away the capacity of portfolio ministers to be responsible for the regulatory features of bills that they design, introduce and administer, Palmer said. "That in turn, reduces the accountability of those ministers and splits it between them and this other supremo minister and it is going to be a complete shambles. "It is going to make the job of the Parliament much more difficult than it is now." Sign up for Ngā Pitopito Kōrero , a daily newsletter curated by our editors and delivered straight to your inbox every weekday.
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Lawyer Ani Mikaere was one of the first speakers of the day, and had some choice words about the bill and the government at large: 'National and NZ First currently face the spectre of this parliamentary term going down in history as the period when the Act Party governed – as coalition partners, you have been completely upstaged.' Adam Currie from 350 Aotearoa, who appeared via Zoom link, told the committee the bill can 'get in the compost heap' – then panned his camera over to his own compost heap for visual effect. 'Thank you Adam, very succinct,' committee deputy chair and National MP Ryan Hamilton replied. Former prime minister Geoffrey Palmer, who submitted against, labelled the bill the 'strangest piece of New Zealand legislation I have ever seen'. Palmer argued that regulation is necessary in many instances – like when he worked as a young lawyer on night clothes regulations, so that young children wouldn't be set alight by heaters while they slept. 'The idea that you would not allow parliament to protect the public from danger is just unreasonable,' Palmer said. Lawyer Sonja Cooper of Cooper Legal, which represents survivors of abuse in care, said she opposed the bill as it would allow abuse to continue. Cooper said she was concerned with the bill's principle that all are made equal under the law – her clients have a 'very distinct and urgent set of needs' which wouldn't be addressed if they were treated as 'equal', and with many of them being Māori, the bill's omission of the Treaty was a 'refusal to accept the needs for policies which may need to treat people differently to achieve equality'. When Act Party MP and committee member Mark Cameron questioned whether Cooper was telling the committee that laws should allow people to be treated unequally despite all people being 'created equal', Cooper replied: 'It's a nice thought that everyone is born equal, but that's not the reality.' Their back and forth made Palmer whisper 'oh, god' and at the end of it, he and Cooper just threw their hands in the air in disbelief. Human resources expert Chris Till supported the bill, but didn't support his 'undemocratic' five-minute submission time. After arguing that iwi have too much power over freshwater resources, and that the RSB would fix this 'racist, tribal and anti-democratic' system, Till continued to argue with Hamilton about his lack of time, so his submission was called off slightly early. Cameron, who had been waiting to ask a question, just gritted his teeth. Later, former Green Party MP Darleen Tana submitted against the bill, with the argument that it would 'constrain future governance, restrict public investment and sets up a narrow economic lens'. Also submitting against, Dunedin City Council's in-house lawyer Karilyn Canton said the council was concerned that the bill's omission of the Treaty would make it at odds with council obligations under the Local Government Act. She also highlighted the bill's requirement for review of secondary legislation (such as council bylaws, of which DCC administers about 40), and argued the Local Government Act already has sufficient provisions to the creation of these laws. Canton said it's also still unclear what falls into the scope of 'secondary legislation', and the likes of a district plan – which has the force and effect of a regulation under the Resource Management Act – would fall into this category. 'So the risk is that it creates disputes, creates costs and it creates uncertainty,' Canton said. Health Coalition Aotearoa's chair Boyd Swinburn opposed the bill, and told the committee the sector's already existing 'regulatory chill' – the absence of regulations which could protect young people from the likes of alcohol marketing – could turn into a 'regulatory freeze' if the bill passed. Swinburn pointed to the Australian government's years-long court case with tobacco giant Phillip Morris over plain packaging for cigarette cartons, which the company argued violated their property rights by confiscating property (their trademark) without compensation. 'It's very naive to think that the industry would not weaponise the privileging of its private property and rights,' Swinburn said. Far North district councillor Hilda Halkyard-Harawira began her submission against the bill by chucking on a pair of sunglasses, and letting the committee know that up in Northland, if someone speaks to you with their shades on, it's because you're telling a 'whole bunch of lies'. She said the bill amounted to 'historical amnesia', and said the uplifting of personal, economic and property liberties over collective rights was like experiencing a flood in your neighbourhood, and only having the local 'vape store' owner be saved. Raewyn Moss and Jo Mooar of Transpower, which controls the nation's energy grid, highlighted their concerns with clause eight of the bill, which highlights 12 principles of responsible regulation, including an emphasis on property rights. 93% of Transpower's overhead lines run on statutory rights under the Electricity Act, the committee heard, and Moss said there was concern that a review of the Act will result in Transpower paying compensation to permit them to use and maintain the land their grid rests on. They were also concerned that protections for these lines under the Resource Management Act would be overruled and ignored for new housing and developments, which could 'have a big impact on public safety'. Rock the Vote NZ deputy leader Daymond Goulder-Horobin said the party largely supported the bill, but they had some suggestions. For 'better optics', regulations minister David Seymour should share appointment powers of the regulatory standards board that will be born from the bill with other parties, so that the committee is 'balanced'. 'Every party is beneath 50% of the vote, so democratic legitimacy is always vested on [the voting of a bill],' Goulder-Horobin said. 'This does not have to be a bill that antagonises the left.' The finance and expenditure committee will resume oral hearings into the bill today at 8.30am.
