Anne Salmond: A flawed bill

Newsroom

3 days ago

Comment: As many commentators have noted, the Regulatory Standards Bill is based on a libertarian ideology. According to the Oxford Dictionary, an ideology is a framework for understanding the world. In this case, it's all about individuals – their rights and freedoms.
The Regulatory Standards Bill sets out its fundamental precepts in the form of 'principles of responsible regulation'. These prescribe that good legislation should not unduly diminish individual liberty, security, freedom of choice or property rights, except where this is necessary to protect the liberty, freedom or rights of another.
In this view of the world, there are persons with rights and property, whose liberty must be protected unless it impinges on those of another person. Here, human life is about individuals pursuing their rights and freedoms, without undue interference from others.
There are three key problems with this framing. First, it is partial, and mistaken; second, it's non-adaptive; and third, it does not meet its own standards. Basing all lawmaking in New Zealand on so faulty a framework is bound to lead to trouble.
To address the first point: the Regulatory Standards Bill emphasises individuals and their rights and freedoms at the expense of collective rights and values. This demonstrates a radical misunderstanding of human life. Though individuals are important, human beings are incorrigibly social animals.
Partly, this is a matter of biology. Babies have a mother and father (or at least, they did until technology intervened); and when they're born, they have a long period of vulnerability during which they have to be cared for and taught various skills if they are to survive. Kinship, with families and kin groups, meets this need.
With the emergence of language, human beings coordinated their activities in increasingly complex ways, building settlements for shelter and security, sharing experience and knowledge in fishing, hunting, gardening, trading and developing new technologies. The ability to co-operate is a key adaptive advantage of the human species.
Pleasure came from other social activities – singing, art to share with others, games, sports and so on. Knowledge was passed on down the generations.
As the size of human settlements grew, ways of regulating social life became more elaborate – laws, courts, the police and Parliament itself, for instance. The whole process of making laws – including the Regulatory Standards Bill – is a social activity.
Nor is it just about relations with other people. The relational networks between human beings and other life forms and the wider environment are also far-reaching and vital to human survival.
Whakapapa, for instance, along with western relational philosophies, is grounded on these realities. It is not just Te Tiriti that's at risk in this bill, but te ao māori itself, with its whakapapa framings that include all forms of life, and its kin-based hapū and marae.
None of this is recognised in the Regulatory Standards Bill, bar a hollowed out account of 'the rule of law'. Though individuals matter in human life, relational frameworks are vital to survival, at different scales and with other life forms, landscapes and seascapes, as well as with other people. Any framing of the world that does not recognise these basic facts is partial, and mistaken.
To address the second point, a framework that ignores the foundational importance of collective institutions, property and values in human life is non-adaptive. If people are taught to prize their individual freedom and property above all – for instance, the cost-benefit calculating individual of neoliberal economics – the bonds that bind families, communities and societies begin to fray.
If the collective rights and values that underpin the social contract, including justice, truth, fairness and respect for others, are undermined, injustice, misinformation and disrespect are likely to follow – as we have seen in the tactics used to promote this bill.
If economic models based on the pursuit of self-interest are privileged in law making, ideas of public service begin to fade. Families and voluntary organisations falter; and institutions created to care for others – early childhood centres, schools, hospitals, retirement villages and the like – become dedicated to the pursuit of profit.
At the same time, knowledge about relationships with other people and the wider world is set aside. It is no accident that the coalition Government that agreed to pass the Regulatory Standards Bill has withdrawn funding for basic research in the humanities and the social sciences.
Policy-making becomes based on ministerial 'reckons' rather than evidence. The disciplines of law, public policy, political studies, public health and nursing, philosophy, the arts and literature, history, urban design, environmental studies, architecture, human geography, sociology and anthropology are defunded, as if understanding human life does not matter.
And if relationships with other life forms and the environment are ignored, these also become dysfunctional, with the mass extinctions of other life forms, polluted lakes and rivers, ravaged landscapes, melting glaciers, heating oceans and climate change. None of this contributes to social cohesion or prosperity.
A bill that fails to recognise the key challenges facing the human species, and frustrates the strategic deployment of different forms of social co-operation in the public interest is dangerous and non-adaptive.
Since the neoliberal revolution of the 1980s, New Zealand has already gone a long way down this track. If we want a peaceful and productive society, a bill that tips the balance even further towards the privatisation of social life and the living world around us is unlikely to prove constructive.
On the third, and final, point, the bill fails to meet its own standards. Although the Regulatory Standards Bill requires that individual freedom and choice are given priority in law-making, there are many aspects of compulsion and top-down control in the provisions of this bill.
These include the roles of the minister of regulation and his hand-picked board, and the requirement to review all laws and regulations, past and present, against a particular ideological framing.
Ultimately, as Peter Thiel has written, a libertarian version of 'freedom' and democracy are incompatible. Taken to the extreme, the unfettered pursuit of freedom by individuals undermines democracy and the rule of law, and the rights of others.
Some may want to take New Zealand in this direction. Judging from public reactions to the Regulatory Standards Bill, however, many New Zealanders have grasped where this bill would take law-making in this country, and do not want a bar of it.
Of the citizens who voted in the last election, only 8.6 percent of New Zealanders voted for Act, with its Regulatory Standards Bill. Of 23,000 submitters on the bill at the consultation phase, only .33 percent supported it. Of a reported 150,000 submissions to the select committee, a large majority oppose it.
This bill lacks even a fig-leaf of popular consent. If it is forced on the country, that flies in the face of the first principle in this bill – that no government should pass legislation that unduly restricts the freedom of choice of individuals.
This bill speaks of freedom, but practices ideological imposition. It is self-contradictory, unbalanced and non-adaptive. This subcommittee should do their Parliamentary duty, listen to the people, and discard it.