Jane Kelsey's Submission on the proposed Regulatory Standards Bill

A guest post by Emeritus Professor Jane Kelsey, sharing her in-depth knowledge of neoliberalism and the Regulatory Standards Bill

Many thanks to Jane Kelsey for making her submission on the extremely important proposed Regulatory Standards Bill available to the public. Jane is one of the country’s foremost experts on neoliberalism and the Regulatory Standards Bill, and has been following it since its inception.

SUBMISSION ON THE PROPOSED REGULATORY STANDARDS BILL CONSULTATION

Professor Emeritus Jane Kelsey

1. I am a Professor Emeritus of the Faculty of Law at the University of Auckland with expertise in policy and regulatory ideology, institutions, instruments and processes.

2. For 36 of my 43 years teaching and researching at the Faculty I taught a biennial course on Law and Policy, which focused on developments in contemporary domestic policy, regulatory and legal processes in Aotearoa New Zealand.

3. My research in this area provided empirically-based critical analysis of contemporary policy post-1984. This includes six sole-authored books: A Question of Honour? Labour and the Treaty 1984-1989 (1990); Rolling Back the State. The Privatisation of Power in Aotearoa New Zealand (1993); The New Zealand Experiment. A World Model for Structural Adjustment? (1995); At the Crossroads. Three Essays (2002); The FIRE Economy. New Zealand’s Reckoning (2015). My doctoral thesis, completed in 1990, was 940 page analysis of contemporary Treaty of Waitangi policy.

4. I have authored many other articles, including for the 2010 issue of the Policy Quarterly that published papers presented at the Institute of Public Policy symposium on the original Regulatory Responsibility Bill in February 2010.¹ I note that the current Discussion Document directs people to those papers, a majority of which were critical of the Bill.

5. As an internationally-recognised expert, I have been invited to speak, and to advise governments, on lessons from New Zealand’s neoliberal policies in a wide range of countries, including Iceland, Latvia, Canada, Argentina, Australia, Japan and the United Kingdom, and to present at the World Bank and OECD.

6. My policy research has been supported by two prestigious Marsden Fund grants. The grant from 2008-2011 on “embedded neoliberalism” included detailed analysis of the proposals for a Regulatory Responsibility Bill, which involved extensive analysis of government policy documents as well as academic scholarship, papers produced by the Business Roundtable and others, submissions and public commentaries. This work has been published in various forms, including The FIRE Economy.²

7. A recent article for The Conversation in December 2023 challenging the ACT Party’s intention to revive the Regulatory Responsibility/Standards Bill for a fourth time received 44,730 reads.³

8. I have made detailed submissions on previous iterations of the Regulatory Responsibility Bill and the Regulatory Standards Bill. My response to questions on the Bill in 2010 remains applicable to this version and is annexed to this submission.

Scope of this submission

9. This submission does not address the questions posed in the consultation document as they do not address the prior questions that are imperative in addressing whether this should proceed. My submission instead addresses the following:

a. The goal of embedding neoliberalism

b. Three strikes but not out

c. The Coalition’s double standards

d. Principles-based decision-making that lacks principles

e. The Minister’s double standards

f. Te Tiriti o Waitangi

g. Transparency

h. ACT’s self-serving principles

i. Lessons from (de-)regulatory failures

j. Unaccountable executive power

k. The process from here

A. The goal of embedding neoliberalism

10. The conceptual origins of this Bill lie in the theory of “economic constitutionalism”, a school founded by James Buchanan that aligns with Hayekian ideology, and was adopted in the United States during the Reagan era. The objective is to bind governments forever to the logic of economic freedom (libertarianism) by setting overarching rules and principles within which all future political decisions must be made.

11. The theory of institutional economics advocated a raft of legislative and institutional measures tailored to avoid “political slippage” and address the “commitment problem” that future governments may seek to deviate from to the neoliberal agenda.

12. This ideological project was proselytised in Aotearoa New Zealand in the 1980s and early 1990s by the Business Roundtable (precursor of the New Zealand Institute).

13. It was operationalised incrementally during the fourth Labour government under Roger Douglas, later Party leader of the Association of Consumers and Taxpayers (ACT), and in the National Government from 1990-1994 through Ruth Richardson. They were guided by senior ranked officials, especially in the Treasury. The overall project was clearly articulated in 1995 by then Secretary to the Treasury and later chair of the Business Roundtable, Murray Horn, in The Political Economy of Public Administration. Institutional Choice in the Public Sector (Cambridge University Press).

14. Four pieces of legislation set norms and disciplines for core pillars of neoliberalism: the State Sector Act 1988, Reserve Bank Act 1989, Public Finance Act 1989 and Fiscal Responsibility Act 1994. The consultation document refers to several of these laws as precedents. They were complemented by binding and enforceable international trade and investment agreements that expanded to diverse areas of policy.

15. The missing piece in this “economic constitution” was a Regulatory Responsibility Act that could guarantee the primacy of private property and impose a regime of “metaregulation” that regulates the way that governments can regulate. The Act would narrow the criteria that governments could legitimately consider in fulfilling their regulatory duties and institutionalise presumptions of self-regulation, light-handed regulation, or no regulation at all.

16. Requiring future and existing laws and regulations to comply with a selection of libertarian-slanted principles, including an abridged notion of the rule of law, and protection of individual liberties and private property rights, would embed this ideology at the core of governance and excludes other principles that reflect different values. Requiring ministerial confessions of non-compliance would instil disciplines on policy makers. Fellow travellers would be installed in oversight bodies to expand the regime proactively into new regulatory areas, or conduct reviews in response to private interests, and to sound the “fire alarm” at the first sign of deviation.

17. That is what the Regulatory Responsibility/Standards Bill aims to do.

B. Three strikes but not out

18. The ACT Party has tried to pass this legislation three times and has failed. As a fervent supporter of a “three strikes” approach when dealing with sentencing, it should apply the same principle to this Bill.

19. This version is essentially a re-run of bills that Parliament has already examined three times, twice in depth, and rejected each time.

19.1 In 2001 Dr Bryce Wilkinson wrote a report for the Business Roundtable entitled Constraining Government Regulation, which annexed a draft of the Regulatory Responsibility Bill. That was the basis for a member’s bill that was drawn from the ballot and had its first reading in July 2007. The Bill was referred to select committee, where it was strongly criticised by a wide range of submitters, the legal profession, and academic commentaries. The Commerce Committee recommended the Bill not be passed. It proposed a high-level expert taskforce be appointed to consider options for improving regulatory review and decisionmaking; the chair should not be committed to any specific option.

19.2 The Coalition Agreement between the National Party and ACT Party in 2008 appointed ACT Leader Rodney Hide as Minister for Regulatory Reform and established a taskforce to carry forward work on the Regulatory Responsibility Bill. The Taskforce was chaired by former Treasury Secretary Graham Scott and ACT Party candidate, a leading advocate of ACT’s Bill, and included Bryce Wilkinson. Predictably, the taskforce’s report in 2009 endorsed the Bill and provided a revised draft.⁴

19.3 The re-named the Regulatory Standards Bill was the subject of a public consultation process in 2010. The Bill was introduced in 2011 and sent to the Commerce Committee. It faced strong criticism, including from the Legislation Advisory Committee. Concerns raised by the Regulatory Review Committee led the Commerce Committee to hold an interim inquiry.

19.4 Significantly, the Treasury’s Regulatory Impact Statement (RIS) in 2011 rejected both the original Bill and Taskforce’s Bill:

We do not support the Taskforce’s proposed Bill. We doubt the chosen principles can attract the broad-based support necessary to induce enduring behavioural changes, and compliance costs could exceed benefits. The interpretive direction presents a particular risk of unintended outcomes.

Treasury also rejected a modified version that removed many of the most problematic provisions, including the “liberties” and “private property” principles that do not reflect well-established legal principles. The RIS warned that:

Simplifying and codifying principles from the common law and LAC guidelines can change their meaning in unpredictable ways, and could easily find their way into judicial interpretation, with unexpected results.

Treasury preferred a very moderate bill (although the Clerk of the House preferred Standing Orders) that

would formalise and expand the requirement for, and content of, an explanatory note accompanying legislation, and provide increased administrative and analytical support for Parliamentary scrutiny of legislation.⁵

Treasury had reservations about what that option might realistically change:

For promoting legislative quality there are limits to what we can expect from a legislative initiative. It is very hard to use legislation to target the quality of policy development and legislative review because the quality of these processes is not readily observed or verifiable by outsiders. It can only encourage behavioural change, but the pressures, incentives and biases acting on Ministers and officials that lead to poor legislation are strong. Unless it somehow catalyses a new behavioural norm, the gains in legislative quality will probably be modest.

19.5 The Commerce committee’s final report in 2015 concluded that the main effect of

the Bill would be to add an extra layer to existing legislative processes and practice, and it again recommended the Bill not be passed. The Bill lapsed in 2017 when it was not reinstated by the incoming Parliament.

19.6 ACT’s third attempt to introduce the legislation as a member’s bill in David Seymour’s name was voted down at its first reading in August 2021 by 77 votes to 43.

C. The Coalition’s double standards

20. This fourth attempt by the ACT Party to pass its Bill is the result of horse-trading in coalition talks with the National Party. The Coalition Agreement between the ACT and National Parties commits to: “Legislate to improve the quality of regulation, ensuring that regulatory decisions are based on principles of good law-making and economic efficiency, by passing the Regulatory Standards Act as soon as practicable.” This refers to passing, not just introducing, the Bill as was agreed with the Treaty Principles Bill.

21. New Zealand First is committed in its Coalition Agreement with National to support ACT Party initiatives in National’s Coalition Agreement.

22. We became aware during the Waitangi Tribunal urgency hearings on the Treaty Principles Bill that officials have been instructed by a Cabinet Circular dated 25 March 2024 to ‘implement’ the coalition agreements and to ensure that they have processes in place to do so. This means that Coalition commitment takes precedence over the current “best practice” regulatory processes that ACT considers are not stringent enough.

23. In effect, a minor political party that attracted just 8.6% of the total vote in the general election is being permitted to by-pass the democratic process that has three times rejected the proposed bill, in two cases through rigorous parliamentary processes. This is the antithesis of best practice regulatory standards, parliamentary democracy or the rule of law.

D. Principles-based decision-making that lacks principles

24. There is a saying that “principles-based regulation does not work if those implementing it have no principles. That is patently true of the ACT-National Coalition Agreement, whose section headed “Ongoing Decision Making Principles” promises the

“Coalition Government will make decisions that are:

A. Principled – making decisions based on sound public policy principles, including problem definition, rigorous cost benefit analysis and economic efficiency.

B. Focused – driving meaningful improvement in core areas …

C. Results-driven – interventions that aren’t delivering results will be stopped.

D. People-focussed – public services, whether for New Zealanders or tourists, will be designed around the needs of the people who use them.

E. Accountable – the Government will set clear public service targets and regularly report on progress towards these objectives.

F. Evidence-based – decisions will be based on data and evidence, with programmes regularly assessed to see if they are delivering results.

G. Fiscally responsible – with spending decisions based on rigorous cost-benefit analysis to ensure taxpayer money is treated with respect, and recognising the need to get the public books back in order by reducing the overall fiscal impact of government.

H. Pro-democracy – upholding the principles of liberal democracy, including equal citizenship, parliamentary sovereignty, the rule of law and property rights, especially with respect to interpreting the Treaty of Waitangi.

25. Yet, formal quality-assurance checks were not required for any of the projects in the Coalition’s 100-day plan. A study conducted by Newsroom analysed 84 RIS and other reports on the Coalition’s new policies found that officials reported either a lack of data to support the policy, or that data existed but did not support the policy, in over half of them.⁶ Some Ministers had instructed officials not to consider alternatives to their politically pre-determined plans. In three-quarters of the policies, officials said there was insufficient time for proper analysis.

26. The RIS for this Bill was followed the same pattern. The interim RIS of 30 October 2024 reports that its scope and the options its analysed were constrained by the direction from the Minister for Regulation that the previous Bill (which was not supported past 1st reading) should be the starting point for the assessment.

27. These constraints led the Quality Assurance Panel to assess the interim RIS as “partially meeting” the quality assurance criteria. While a final RIS will reflect the current consultation, the current constraints will presumably still apply.

E. The Minister’s double standards

28. The Minister for Regulation in charge of this Bill is also the Associate Minister of Justice responsible for the Treaty Principles Bill, whose introduction was also a commitment under the Coalition Agreement.

29. During the Waitangi Tribunal’s urgent inquiry into Treaty Principles Bill it was clear the Cabinet Circular dated 25 March 2024 means government officials were in fact not free to offer frank and informed advice that the measure not proceed. They were required, instead, to ensure the introduction of that Bill and its reference to select committee, even if that overrode the Crown’s legislative criteria and processes and breached the Crown’s constitutional obligations under Te Tiriti o Waitangi (or even the Crown’s own guidelines on Tiriti compliance). The Tribunal was told that documentation and advice that informed the Cabinet paper could not be made available until the Cabinet had considered it.

30. Minister Seymour overrode officials advice on engagement, and reversed approaches that were previously agreed, such as the release of an exposure draft for public, or targeted, comment.

31. The Minister and ACT Party leader is clearly willing to breach principles and processes he claims are foundational to democracy when it suits his party’s political or ideological purposes. He is brazenly prepared to totally repudiate Te Tiriti o Waitangi.

32. This arrogation of democratic responsibility by this and subsequent ministers, and the selective and self-serving approach to “best practice” principles, would become entrenched in this proposal. Paragraphs 26 and 27 of the Cabinet paper state the Minister would expand on the legislation by issuing guidelines for assessment of existing and new legislation to “provide further information in relation to the way the principles should be interpreted and applied”, as well as related processes and requirements.

33. The Minister could also specify which classes of regulation are required to comply with consistency requirements, which would presumably enable the exclusion, for example, of Coalition Agreements.

F. Te Tiriti o Waitangi

34. Te Tiriti o Waitangi, He Whakaputanga o te Rangatiratanga o Nu Tireni and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) are all absent from the proposal itself.

35. Even if ACT’s Treaty Principles Bill does not become law, this legislation would de facto have the same effect. Te Tiriti would be removed from the list of considerations that inform regulation, including legislation, aside from Treaty settlements. In other words, a significant part of ACT’s Treaty Principles Bill would become operative and constitute new breaches of Tiriti principles that the Waitangi Tribunal has identified.

36. The Minister’s contempt for Te Tiriti o Waitangi as the nation’s founding document is incompatible with any legitimate notion of “best practice regulation”.

37. Contrary to the proposals own principle of “transparency”, one third of the Tiriti of Waitangi assessment in Annex 4 to the Cabinet Paper is redacted on the basis of maintaining legal professional privilege. So is half of the only Cabinet Paper recommendation that refers to iwi/Māori. Presumably, that legal advice relates to breaches of the Crown’s Tiriti obligations and potential for Waitangi Tribunal inquiries and judicial application of principles that exclude Te Tiriti.

38. The preliminary analysis does identify fundamental failings in the proposal relating to the principles of kāwanatanga, tino rangatiratanga, and equity. While I would interpret these principles differently, they at least recognise the constitutional relationship agreed in Te Tiriti. In addition, the assessment refers to Crown-derived principles of partnership, active protection and redress. The redaction of the paper’s assessment of the proposal in relation to these measures warrants the assumption that most, if not all, the proposed principles were considered to be in breach.

39. The Minister also continues to ignore Crown responsibilities under Te Tiriti and the UNDRIP to engage with Māori on matters that impact on their rights and duties. It appears from paragraph 3 of Annex 4 that the Minister intends only to hold “some targeted engagement with specific Māori stakeholders within a general engagement strategy, rather than undertaking a broad Māori engagement strategy”.

G. Transparency

40. A further example of the Minister’s “do as we say, not as we do” involves the principle of transparency. The Cabinet paper cites as a justification for the Bill “a lack of transparency about whether new regulation meets accepted standards and, where it does not meet those standards, why it has still been proceeded with” (para 11). The Cabinet paper and consultation documents fail to provide any such justification, aside from the coalition deal.

41. Furthermore, key advice provided to the Minister has been redacted from the publicly released documents citing Section 9(2)(h) of the Official Information Act: legal professional privilege. Given the quasi-constitutional nature of this proposed Bill, legal risks arising from the introduction of novel legal liabilities, such as regulatory taking rules (as in paragraphs 41, 42 and 45, plus Annex 2), new breaches of the Crown’s Tiriti obligations (in Annex 4), and distortions of fundamental legal principles, such as the rule of law, cannot be kept secret.

42. Part of the financial implications is also redacted and the fiscal costs of implementing this regime are not disclosed. Given the RIS does not believe there will be cost savings from the regime, this vanity project of ACT is likely to be a significant additional drain on the budget of a range of ministries.

43. As discussed below, there is also very real potential for massive damages claims and awards under the regulatory takings provision. Recent experiences with leaky buildings, finance company collapses, and the Pike River tragedy, illustrate the significant additional remedial costs arising from regulatory failures that need to be factored in.

44. Disclosure of this, and other redacted advice, is all the more critical given the cumulative history of analyses that reject similar bills. This should be sufficient justification to stop this process now.

H. ACT’s self-serving principles

45. The flaws in ACT’s “principles” have been addressed extensively in previous inquiries on the bill. There is no point in repeating all that here. The Minister himself concedes in his Cabinet paper that “some these principles describe concepts differently to, or are broader than, the comparable wording in the Legislation Guidelines or in other legislation. In particular, the principles relating to takings and impairment, and liberties and freedoms, differ from conventional expressions of these principles” (para 19). It is extraordinary that this Minister and his ideological fellow-travellers are asserting the power to redefine core constitutional principles to govern future polities, just as he did with the “principles of the Treaty”. This is neither a Tiriti-based nation nor a democracy. I want to refer here to just three.

46. Good law-making

Legislation should be the most effective, efficient, and proportionate response to the issue concerned that is available.

Despite this, the RIS makes it clear that the Minister excluded non-legislative options from consideration.

47. Regulatory Stewardship

Legislation should continue to be the most effective, efficient, and proportionate response to the issue concerned that is available. The system should continue to be fit for purpose for the people, area, market, or other thing that is regulated.

Unnecessary regulatory burdens and undue compliance costs should be eliminated or minimised. …

This presumption in favour of light-handed or no regulation is already a problem with the current regulatory management regime. In trade law, “unnecessary burdens” is known as the “necessity test”. It favours a minimalist approach to regulation that is skewed to economic or commercial interests and criteria, such as efficiency, that privileges market, voluntary, and disclosure based approaches. This restricts governments’ policy space to take measures they consider most appropriate to meet their national policy objectives.

48. Taking of property

Legislation should not take or impair, or authorise the taking or impairing, of property without the consent of the owner unless:

• there is a good justification for the taking or impairment

• fair compensation for the taking or impairment is provided to the owner

• compensation is provided to the extent practicable, by or on behalf of persons who obtain the benefit of the taking or impairment.

This revives previous attempts to introduce a regulatory takings rule to New Zealand law through ACT’s Regulatory Responsibility/Standards Bill, as well as a private member’s bill in the name of Gordon Copeland for United Future in 2005 to include private property rights in the Bill of Rights Act, which neither the Labour nor National Parties supported.⁷ Treasury’s 2011 RIS rejected the proposed property rights principle, saying:

it does not accurately reflect the legal principle relating to compensation for expropriation, and the question of rights to property would be better addressed, if warranted, in the New Zealand Bill of Rights Act;

49. This proposed principle concerns me more than any other in the Bill. The Cabinet paper and consultation document have scant details on this proposed now rule. Broad brush references to recognition of private property rights protections in other countries do not address the crucial limitations on that right, the domestic jurisprudence and their evolution in response to debates.

50. The scope of “property” is not defined. It potentially includes shares, foreign exchange, real property, intangible intellectual property, carbon credits, fisheries quotas, goodwill in a business, cryptocurrencies, social media platforms, mining permits and other licenses.

51. Impairment of property would include measures that impact on its value or profitability, such as:

• issuing compulsory licenses to ensure access to vaccines in a pandemic, even if permitted under the WTO;

• new restrictions on tobacco or alcohol sales and marketing, as occurred with the expropriation claims made by tobacco companies in relation to plain packaging tobacco products;

• introduction of capital gains or wealth taxes;

• designation of buildings as historic or land as outstanding landscape character;

• recognising rights of mana whenua over whenua, wai or other taonga to redress Tiriti breaches, including requirements for free, prior and informed consent;

• climate change measures that impact on profits or the value of carbon credits under the ETS,

• tightening rules on individual transferrable fisheries quotas, or significantly restricting catch volumes in certain areas;

• not renewing mining permits for environmental or climate reasons;

• tightening regulations on construction to following a recurrence of leaky buildings caused by the proposed weakening of regulations; and

• much more.

52. What principles for “fair compensation” would apply? Would that include lost future profits and interest? Would shareholders and financiers of an investor be able to bring a dispute? What fiscal risks does this create that are not factored in to this proposal, or if they are have been redacted to hide the potential major fiscal impacts?

53. What public policy considerations would be permitted and who would decide, according to what criteria and priorities? Would harms caused by the investor be a defence and would there be counter-claims where the investor contributed to the harm? What chilling effect would threats of such a dispute have on the adoption of regulation for sound public policy reasons?

54. There is no New Zealand jurisprudence on takings, so where would courts look to? Introduction of this rule would be a recipe for ongoing litigation where the only winners would be the lawyers.

55. I am very aware of all these issues as they are at the heart of the crisis confronting investor-state dispute settlement (ISDS) under international investment agreements. Successive New Zealand governments, including the current Coalition, have recognised the significant fiscal and legal risks and the uncertainty and arbitrariness of these disputes, and have determined not to include ISDS in future international trade and investment agreements.

56. Adopting a regulatory takings rule domestically would be inconsistent with the rationale for excluding ISDS from international agreements and would, in effect, provide aspects of ISDS to foreign investors unilaterally.

I. Lessons from (de-)regulatory failures

57. The proposal treats regulation as a cost, and hence bad, and its criteria for deciding what regulations are “unnecessary” and “poor” are ideologically skewed. Regulation serves multiple positive purposes that seek to balance competing objectives that is essential in a Tiriti-based democracy; yet there is no pretence here of balancing libertarian principles with those of a social democracy, let alone a nation based on te Tiriti o Waitangi.

58. The proposed principles prioritise non-regulatory options, rely on risk-based assessments, or favour a minimalist approach of self-regulation, disclosure, or coregulation. The absence of regulation leaves those who are affected by the conduct of another vulnerable to the power and information deficits that are intrinsic to commercial and market relationships.

59. The human and fiscal risk of risk-based, light-handed regulation or self-regulation over the past 30 years is manifest in the leaky building crisis,⁸ the Pike River mine tragedy,⁹ workplace deaths in forestry and on farms,¹⁰ finance company collapses,¹¹ unsafe aged care,¹² and dangerous adventure tourism.¹³

60. Steps to address these risk being swept away under this Bill, especially if affected industries have more powers to object to regulations and demand more profit-friendly regimes.

J. Unaccountable executive power

61. The Minister wants to create two entities that will give effect to this regime. A new Ministry of Regulation is, inter alia, to conduct regulatory reviews to ensure they achieve ACT’s objectives and “do not impose unnecessary compliance costs or unnecessarily inhibit investment, competition and innovation” (para 37). There is no pretence of balanced public policy considerations.

62. The Ministry has already been established without the need for legislation and without scrutiny of its rationale or the fiscal implications at a time of budgetary austerity. It is interesting that even the new ministry does not support the ACT Bill, preferring a nonlegislative approach. However, such an approach that is based on the same principles and priorities could be even more unaccountable and problematic.

63. Ironically, the new government department is being funded by disestablishing the Productivity Commission, whose creation in 2010 was sourced in the ACT-National confidence and supply agreement in 2008. ACT intended the Productivity Commission to be an independent Crown entity whose terms of reference were designed to advance CT’s (de)regulatory agenda, based on the same flawed premise as this bill that: “Most of New Zealand’s problems can be traced to poor productivity, and poor productivity can be traced to poor regulation”. Several original members were ACT aligned and overlapped with the Regulatory Responsibility Taskforce that promoted the Bill. The Productivity Commission’s orientation shifted under the Labour Government and so it has been disbanded.

64. In its place is a proposed Regulatory Standards Board whose function including considering complaints or conducting reviews against the libertarian principles. It is inevitable that well-resourced powerful private interests and corporations will use this as a lobbying and pressure point to challenge regulations they dislike and seek to deregulate activities that are impeding their profitability. The biased “principles” would exclude ab initio many of the concerns that others may wish to raise about regulation that adversely affects them, even if they had the resources to raise them.

65. The Board will be hand-picked by the Minister for Regulatory Responsibility. I could almost name them now. This has the potential to be our ideologically-driven version of the Trump administration.

K. The process from here

66. To date, the only targeted engagement outside government has been with the previous members of ACT’s Regulatory Taskforce (Cabinet Paper paragraph 61). Paragraph 7 of the Cabinet Paper proposes targeted engagement with business groups, councils and legal experts. Paragraph 8, which might provide further information on this process, is redacted.

67. There is no basis for trust here. Based on the constraints in the Cabinet paper and consultation document, and previous behaviour of this Minister, I would expect those targeted will predominantly be champions of his legislation. They will not be a crosssection of views, including those who vehemently opposed this Bill in the past.

68. It is the constitutional responsibility of public servants who conducting this consultation to break out of the Ministers’ constraints and provide free, frank and critical advice that reflects the Tiriti o Waitangi and core democratic principles.

69. Likewise, the National and New Zealand First parties need to take responsibility for allowing this travesty of democratic governance to reach even this far, and vow to stop it before it even reaches the select committee.

Professor Emeritus Jane Kelsey

Faculty of Law

University of Auckland

References

1. “Regulatory Responsibility”: Embedded Neoliberalism and its Contradictions” 6(2) Policy Quarterly 36-42

2. The FIRE Economy. New Zealand’s Reckoning, Bridget Williams Books, 2015

3. https://theconversation.com/acts-attempt-at-regulatory-reform-in-nz-has-failed-3-times-already-whats-diOerentnow-220140

4. https://www.treasury.govt.nz/publications/commissioned-report/report-regulatory-responsibilitytaskforce# part-1-overview-of-report

5. https://www.treasury.govt.nz/sites/default/files/2011-03/ris-tsy-rbr-mar11.pdf

6. https://newsroom.co.nz/2024/11/27/oEicial-advice-finds-time-and-evidence-in-short-supply-in-govtsfirst-year/

7. https://www.scoop.co.nz/stories/PA0709/S00202.htm

8. https://www.eastonbh.ac.nz/2010/02/social-security-and-acc-2/

9. https://pikeriver.royalcommission.govt.nz/Volume-One---Proposals-for-Reform

10. https://www.farmersweekly.co.nz/news/farm-deaths-demand-urgent-attention-expert-says/

11. https://oag.parliament.nz/2011/treasury/part2.htm

12. https://www.consumer.org.nz/articles/rest-homes/investigations

13. https://www.beehive.govt.nz/release/improvements-confirmed-adventure-activity-sector