Jane Kelsey's submission on the Regulatory Standards Bill 2025

A guest post sharing Emeritus Professor Jane Kelsey's submission on the RSB

SUBMISSION ON THE REGULATORY STANDARDS BILL 2025

Summary

• This Bill is an ideological vanity project of the ACT political party that secured less than 9% of votes at the 2023 election.

• The Bill was originally designed by ACT’s radical think tank, the Business Roundtable, in 2001 and introduced to Parliament by ACT in 2007. Three variations have been rejected by Parliament over the past 18 years. Its reintroduction is the result of unprincipled backroom horse-trading between political parties that undermines the legitimacy of MMP and makes it appear as undemocratic and unaccountable as First Past the Post.

• The process and content of the Bill show contempt for the fundamental foundations of Te Tiriti o Waitangi and democratic government, exposing the hypocrisy of ACT’s claims that the Bill is about “best practice”, transparent, accountable, evidence-based regulation.

• The “responsible” Minister explicitly rejected his own ministry’s advice to include in the Bill’s “regulatory principles” the Crown’s obligations under Te Tiriti o Waitangi, in favour of principles that are designed to privilege those with wealth and private property, making this a re-run of ACT’s failed Treaty Principles Bill.

• My Official Information Act requests to the Minister were delayed and drip fed on grounds that the Ombudsman has found were not justified, and revealed either woeful ignorance or deliberate obstruction by the Minister and his office.

• The Minister’s initial consultations were limited to members of the Regulatory Responsibility Taskforce, which was appointed in 2009 by a previous ACT-National coalition to advance ACT’s project; by contrast, the Minister decided against conducting even targeted engagement with Māori and other experts.

• This latest attempt to enact ACT’s Bill has been rejected by the Waitangi Tribunal and the Legislative Design and Advisory Committee. Even his own made-to-order Ministry of Regulation did not support it.

• The Discussion Document released on 19 November 2024 sought submissions over the Christmas break, closing on 13 January 2025. The document was so heavily redacted that it undermined the supposed purpose of pre-legislative engagement to inform the final Bill.

• A large part of the Preliminary Treaty Impact Analysis was redacted to “maintain legal professional privilege”, which indicates strong concerns were raised about constitutional and legal issues that the Minister did not want known.

• The Discussion Document also extensively redacted advice on the legal and fiscal risks of the Bill, including in relation to the principle on “taking of property”. This leaves it unclear whether officials raised the risks of domestic judicial review, or international investor-state disputes with the potential for compensatory awards of hundreds of millions of taxpayer dollars when governments sound policies or comply with international obligations, and if so what advice the Minister rejected or ignored.

• It is also unclear whether the Minister was informed that the “regulatory takings” principle would impede National and ACT’s commitment to free markets and action currently under discussion relating to anti-competitive dominance in the supermarket, insurance, electricity, and other markets.

• The consultation attracted 22,821 submissions. The majority were not even read, apparently on the basis of how many characters they contained. The vetting of submissions by AI identified that 88% of submissions opposed the proposed Bill and only 0.33% wholly or partially supported it. Despite the Discussion Document promising that “The information provided in submissions will be used to help determine the final shape of the Bill that will be introduced into the House next year”, the Minister peremptorily dismissed the overwhelming number of submissions that rejected the Bill as “not adding anything meaningful”.

• Implementation of the Bill is conservatively projected to cost $18 million annually, but it is unclear how that was calculated and in practice it may cost a great deal more - yet the same ACT party has secured cuts to public services and support for the most needy in order to “eliminate wasteful spending”.

• If coalition partners support the passage of the Bill they will be hoist by their own petard, unable to implement core policies and facing the embarrassment of either having to repeal an Act they have supported or routinely making confessions of non-compliance that make a mockery of the legislative process.

• Māori would face yet another provocation which, as the effects accumulate, would make the mobilisations over the Treaty Principles Bill pale by comparison.

• This is not the Aotearoa that we need for today’s generation or that we want to leave for our mokopuna.

My credentials as an expert

1. I am a Professor Emeritus of the Faculty of Law at Waipapa Taumata Rau / The University of Auckland. 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.

2. My empirically-based research and critical analysis of contemporary policy post-1984 includes five 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); and The FIRE Economy. New Zealand’s Reckoning (2015). My doctoral thesis, completed in 1990, was 940-page analysis of the impact of neoliberal policies on Te Tiriti o Waitangi.

3. 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] The Discussion Document on the Bill directed people to those papers, a majority of which were critical of the first iteration of this Bill.

4. 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.

5. 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]

6. A recent article published by The Conversation in December 2023, which challenged the ACT Party’s intention to revive the Regulatory Responsibility/Standards Bill for a fourth time, had received 44,730 reads by mid-2024.

7. I have made detailed submissions on previous iterations of the Regulatory Responsibility Bill and the Regulatory Standards Bill.

8. My submission to the Discussion Document last December remains applicable, as the concerns I raised have not been addressed in ACT’s Bill as introduced. That submission addressed the following issues:

· The goal of embedding neoliberalism

· Three strikes but not out

· The Coalition’s double standards

· Principles-based decision-making that lacks principles

· The Minister’s double standards

· Te Tiriti o Waitangi

· Transparency

· ACT’s self-serving principles

· Lessons from (de-)regulatory failures

· Unaccountable executive power

· The process from here,

and is attached to this submission to avoid repeating what I said there.

9. This submission focuses on four further elements:

A. The “regulatory takings” principle and its legal, economic and fiscal implications;

B. The illusion of unenforceability.

C. Treasury’s paper regarding pre-legislative implementation of the Bill;

D. Minister Seymour’s disdain for “transparency” under the Official Information Act.

A. Primacy of Private Property and Implications of a “Regulatory Takings” Rule

10. In the first reading debate of the Bill on 22 May 2025, the very first thing David Seymour confirmed is that his Bill is essentially about protecting private property and wealth:

The hard left Auckland law professor Jane Kelsey helpfully explains that the bill is “basically about the protection of private property and wealth.” Well, Jane, now you're catching on. Funnily enough, she seemed to think that her comments were a criticism, and, judging by some of the commentary I've heard from the other side of the House, I'm not sure that they know what’s in the bill, but, thankfully, my job is to explain it.

11. My submission on the Discussion Document, and my previous submissions and writings, have addressed the proposed principle on “taking of property” in some detail. My latest submission is attached below and only points of emphasis are repeated here.

12. ACT’s previous attempts to introduce a regulatory takings rule to New Zealand law have failed. A member’s bill in the name of Gordon Copeland for United Future in 2005 sought to include private property rights in the Bill of Rights Act; neither the Labour nor National parties supported that.[3] Treasury’s 2011 RIS rejected the proposed property rights principle in the proposed Regulatory Responsibility Bill, as not accurately reflecting the legal principle relating to compensation for expropriation.

13. The version of “regulatory takings” in the latest Bill is vague and potentially fetters swathes of essential regulation, including National Party policies under consideration such as breaking up the supermarket duopoly. The Labour Party has talked about a more general review of competition law to give the Commerce Commission power to break up monopolies, as exists in many other market capitalist economies.

14. Ironically, the ACT Party appears to oppose state monopolies, but is proposing a regulatory takings rule that would protect or compensate private monopolies that rort customers and suppliers and undermine incentives to new investors, but who are currently beyond the reach of our competition law.

15. The committee needs to understand the potential reach of that “principle”. There is no definition of “property” in the Bill. I work extensively on international investment agreements where the definition of “investment” for the purposes of the “indirect expropriation” or regulatory takings rules is open-ended and explicitly includes real and moveable property, including mortgages; shares, stocks, bonds and debentures; intellectual property rights; debt, bonds, and claims to money; instruments like carbon credits and fisheries quotas; goodwill in a business; rights under contracts, including PPPs; business concessions and licenses, including for natural resources. It would even extend to social media platforms and data and cryptocurrencies.

16. Compounding that uncertainty, there is no threshold for the nature and extent of “impairment” of property. “Impairment” would apply to measures that impact on the value or profitability of property, of real people and corporations. The future impact of a regulatory change is necessarily speculative, and the Bill would open the door to a limitless array of arguments about how a new law would, or could, impact on “property”.

17. The paper by Professor Richard Epstein on regulatory takings, which was attached to an email I secured under the Official Information Act from Dr Bryce Wilkinson lobbying officials responsible for the Bill, gives as an example of “impairment” changes to labour laws that disadvantage employers.

18. Using international investment law on regulatory takings again as a guide, other examples would include:

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

o 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, wealth or digital services 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, including the value of carbon credits under the Emissions Trading Scheme;

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

• not renewing mining permits for environmental or climate change reasons;

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

• and much more.

19. There is also no guidance on “fair compensation” under the proposed principle. In international investment law, compensatory awards include speculative lost future profits with compound interest.

20. The select committee needs think long and hard about what definition property, what standard or impairment, what form and extent of compensation is intended here, and what its consequences would be for any future, or existing, regulation, including those that their parties espouse.

21. It also needs to be very clear about the fiscal risks that could create, and which have not been disclosed in redacted versions of the documents. What public policy considerations would be permitted and according to what criteria and priorities? Would harms caused by the investor be offset against compensation, or is this purely about protecting property rights above all else?

22. Further, the committee needs to ask who would be the arbiter of these uncertainties? Assuming the matter does not go before a court, would the Regulatory Standards Board decide what is “property”, “impairment” and “fair compensation”? Is there some New Zealand jurisprudence that would provide a guide when the principle and the range of property is far beyond what is addressed under domestic law? Are we to be guided by American case law, which has always had an aggressive approach to takings and whose champions, like Professor Richard Epstein, have been instrumental in framing ACT’s Bill? How would compensation be assessed for the “impairment” of speculative financial instruments like carbon credits or cryptocurrencies or data and AI used by social media platforms? Or would the Minister – currently Minister Seymour - set those through guidelines?

B. The Illusion of Unenforceability

23. When challenged about the anti-democratic nature of the Bill Mr Seymour (and other proponents) say “it is about transparency, not enforcement” (eg on RadioNZ on 4 June 2025). That is disingenuous. The redactions of all legal advice and some associated commentary in the publicly available documents on the Bill hide the legal and fiscal consequences the Minister has ignored. If he is so confident about his claim, he should release that advice now.

24. There are at least three other grounds to contradict the Minister’s claims about enforceability. First, there is clearly some possibility of judicial review when ministers’ decisions breach legislated principles. I am not an administrative law expert and leave further commentary on that to my colleagues who are.

25. The second ground, on which I am an international expert, is the potential for a dispute brought by an investor against the government under an international investment agreement. Investor-state dispute settlement (ISDS) is highly controversial. It operates exclusively to enforce the special guarantees given to investors and their investments, broadly defined, under the investment agreements or investment chapters of free trade agreements.

26. ISDS lacks any of the essentials of the “principle of the rule of law”: independence of the judges (arbitrators), lack of public scrutiny, no system of precedent, no appeals. Competing public interests are only recognised when referred to in the agreement. Awards routinely extend far beyond compensation for sunk investments to include projected future profits, with compound interest, and sometimes punitive damages, plus costs.

27. Claims, and awards, commonly run to hundreds of millions of dollars, and even into the billions, even where there is minimal sunk investment. In a series of recent cases, Australian mining billionaire Clive Palmer reincorporated his company Mineralogy in Singapore to take advantage of an agreement between Singapore and Australia that contains ISDS so he can sue his own government, having lost in the domestic courts. He currently has four cases against Australia, through Mineralogy, claiming A$420 billion.

28. The special protections for investors that are enforced through ISDS include direct and indirect expropriation (regulatory takings), and “fair and equitable treatment” which investors insist means a legitimate expectation that the regulatory regime at the time of investment will not change in ways that adversely affect them. The parallels to the regulatory takings principle under the Bill are clear, hence my speculation about how this might inform the interpretation and application of the Bill.

29. Beyond that, there is a strong likelihood that an investor would try to bolster its ISDS case on indirect expropriation by pointing to a breach of the Bill’s “principle”. It could also cite a failure to apply the principle as a breach of its legitimate expectations that the law would not change or if it did that it would receive extensive compensation.

30. Successive New Zealand governments, including the current Coalition, have recognised the significant fiscal and legal risks and the uncertainty and arbitrariness of ISDS, and have determined not to include it in future international trade and investment agreements.

31. Adopting a regulatory takings rule domestically would be inconsistent with the rationale for doing so and would, in effect, provide key elements of ISDS to foreign and domestic investors.

32. Third, the most likely and pervasive effect of the regulatory takings principle is known as “regulatory chill”. The prospect of being challenged by or referred to the Regulatory Standards Board, with resource and reputational impacts, may deter a government from adopting new legislation for sound public policy reasons.

33. The threat of judicial review or of an ISDS dispute could have a similar effect. Indeed, the chilling effect may be the primary goal of the property owner. We have seen that at work when threats by the tobacco giants secured lengthy delays to the introduction of plain packaging of tobacco.

34. Actual threats may not be necessary. In its Wai 2522 report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the Waitangi Tribunal expressed concern over a systemic form of regulatory chill that occurs when officials and ministers internalise a range of legal, fiscal and reputational risks, which results in self-censorship:

our inquiry recognises that risk extends beyond the risk of an ISDS claim and includes the broader scope of regulatory chill across the policy and legislative process. We recognise the cumulative effect of these risks and the potential that they have to circumscribe the ability of the Crown to legislate in ways that would address Tiriti / Treaty interests … (p.176)

35. A clear example of that systemic form of chill is the admission by former Climate Change minister James Shaw that the Labour-Green Party coalition’s ban on oil and gas exploration was limited to future permits and offshore mining because of concerns over the risks of ISDS.

C. Treasury’s pre-emptive implementation of ACT’s Regulatory Standards Bill

36. A report from the Treasury on “Short-term measures in advance of the Regulatory Standards Bill” dated 22 March 2024, that was eventually released to me on 17 March 2025 (but which I cannot locate on their website), indicates that elements of the proposed Regulatory Standards Bill may already have been implemented through a parallel process.

37. Treasury indicated that those non-legislative actions were to be based on the 2021 version of the Regulatory Standards Bill - the Member’s Bill in the name of David Seymour MP that was voted down at first reading in the Parliament.

38. The following recommendations for action were made by Treasury to the Minister in the Executive Summary of that paper:[4]

(a) note that, in parallel to policy work on the Regulatory Standards Bill (RSB), there is an opportunity to undertake some short-term measures to support regulatory quality;

(b) note that this briefing recommends some initial short-term and straightforward measures, and that officials will provide advice on additional short-term measures as policy work on the RSB progresses and as the new Ministry for Regulation scales up its operations and resourcing.

(c) agree for officials to progress work on the following short-term measures over the next three months: …

c. For the Ministry for Regulation to draw on some of the principles of the RSB (and other indicators of good regulatory quality) in establishing terms of reference for sector reviews and for evaluating new regulatory proposals.

39. The full Treasury report made it clear that these short-term measures would draw on the 2021 version of the Bill, which had been rejected by Parliament:

Following discussion with your office, this report also maps the components of the 2021 RSB against existing systems and processes in order to support the identification of short-term measures.

40. There was no specific reference to Te Tiriti o Waitangi anywhere in the Treasury document. It is unclear whether the redacted legal advice might have related to that.

41. The Minister did not provide any further information under the OIA regarding this early application of aspects of the Bill.

42. The select committee needs to seek clarification from the Minister and the Treasury regarding what appears to be an attempt to pre-empt the legislative process and which is based on legislation that has previously been rejected by the Parliament.

43. There is an obvious concern that the Minister may seek to repeat this non-legislative application of his Bill should the select committee recommended it not proceed or if it is voted down in Parliament. That would be contemptuous of Parliament in spirit, if not in law.

D. The Minister’s Disdain for his Official Information Act obligations

44. My submission on the Discussion Document accused the main proponent of the Bill, Minister David Seymour, of engaging in “do as we say, not as we do”, especially in relation to the principle of transparency.

45. Many submitters on the Discussion Document highlighted the hypocrisy of the extensive redactions in the consultation document, especially relating to the Treaty of Waitangi assessment. For me, the Minister’s failure to comply with his obligations under the Official Information Act is even clearer evidence of that.

46. The Official Information Act 1982 (OIA) is the most constitutionally significant legislative obligation on transparency and accountability. We are entitled to assume that all Ministers and their offices are fully familiar with their obligations under the Act and how it should be interpreted, especially a Minister with responsibility for regulation.

47. We are also entitled to assume that a Minister and his office will respond to requests in a timely manner and act in good faith to achieve the Act’s purpose:

to increase progressively the availability of official information to the people of New Zealand in order—

(i) to enable their more effective participation in the making and administration of laws and policies; and

(ii) to promote the accountability of Ministers of the Crown and officials, —

and thereby to enhance respect for the law and to promote the good government of New Zealand.

48. In my experience, Minister David Seymour manifestly failed to do so in relation to the Regulatory Responsibility Bill.

49. Prior to the release of the Discussion Document in mid-November 2024 I sought information from the Minister under the OIA so I could update my extensive academic analysis of previous versions of the Bill and help provide information to other experts and the general public. At that stage it was unclear whether there would be any consultation before the Bill was introduced, so the request was broadly worded.

50. This began a frustrating six months of exchanges as the Minister asked me to “rescope” my request to limit its scope, after which the clock started again, sought extensions of time, and drip-fed information, apologising for an “administrative error” and then the “discovery” of a document originally considered out of scope.

51. Ultimately, the Ombudsman found the Minister has improperly relied on Section 18(d) of the Act to refuse the release of information. This shows that the Minister and his officials had either a woeful understanding of their core obligations under the OIA and/or had been deliberately obstructive. Either way, the Minister’s failures prove that he cannot be trusted with the responsibility to design guidelines, issue instructions, make appointments and oversee the operation of the proposed regulatory regime with legal competence and integrity.

52. The sequence of these requests is set out below:

52.1 12 November 2024 : I requested from the Minister “all documents and communications prepared for, by or to your office relating to the Coalition Agreement policy to pass a Regulatory Standards Act or legislation to similar effect”.

52.2 19 November 2024: The Minister responded that the request was broad and he might either seek an extension of time or reject the request as requiring too much work. He referred me to documents that were publicly available and invited me to refine the request to material I was most interested in. The clock would be reset if the request was revised.

52.3 19 November 2024: The Discussion Document on the Regulatory Standards Bill was released with a closing date for submissions of 13 January 2025.

52.4 5 December 2024: I advised the Minister’s office that I had worked through the public documents, noting that there were extensive redactions, and made specific requests for:

a. communications with and advice to the Minister regarding engagement with Māori and the Crown’s Tiriti obligations (beyond the released redacted document on Treaty Analysis);

b. who has been engaged with in the targeted engagement to date and who the Minister proposes to engage with in a subsequent targeted process;

c. noting the Cabinet paper proposes the Minister will report back to the Committee by February 2025, the proposed timeline from there to the intended passage of legislation;

d. papers and advice from within and outside government relating to the private property right and regulatory takings rule;

e. advice from the Treasury; and

f. advice from the Ministry of Foreign Affairs and Trade relating to international trade and investment treaties.

52.5 24 January 2025: The Minister extended the time to respond until 18 February “to enable consultations”.

52.6 17 February 2025: A number of claimants made an application to the Waitangi Tribunal seeking an urgent inquiry into the proposed Regulatory Standards Bill.

52.7 18 February 2025: The Minister responded to my request of 12 November that had been rescoped on 5 December. He released only one email, which was to an official from an anonymous Capital Economics email address (where the original architect of the Bill, Dr Bryce Wilkinson, is the Director). That email had attached a paper by Professor Richard Epstein on regulatory takings. This showed a leading advocate for the Bill had been lobbying the officials to ensure a strong version of regulatory takings was included. Beyond that, the Minister refused the request relating to who the Minister proposed to engage with in a targeted engagement because no decisions on engagement had been made. He relied on Section 18(d) to decline other information that he said was publicly available.

52.8 18 February 2025: I wrote immediately to the Minister in relation to “the request relating to communications with and advice to the Minister regarding engagement with Māori and Crown Tiriti obligations. Given documents received in a number of other recent policy matters, I cannot believe that there are no emails or other communications and advice aside from the public documents. Please revisit this request with urgency and provide emails and other communications, including draft ministerial papers etc prepared by officials.” The Minister treated that as a new request, so the clock started again.

52.9 28 February 2025: I asked the Ombudsman’s office to review the Minister’s response urgently, given the introduction of the Bill was pending but the timeline was unknown.

52.10 28 February 2025: A Memorandum of Counsel for Ngā Toki Whakarururanga, for whom I am a pūkenga, was filed in the Waitangi Tribunal urgency inquiry on the Regulatory Standards Bill (Wai 3470) seeking status as an interested party. Annexed to that was my OIA request of 18 February 2025.

52.11 17 March 2025: Minister Seymour responded to my 18 February request, following engagement by the Ombudsman’s office, saying he had reviewed his response of 12 November 2024. “Two briefings in scope of your original request have been brought to my attention, which were previously missed due to an administrative error. I sincerely apologise for not having previously considered these. The two further documents that are in scope are briefings that were prepared by the Treasury.

One of those documents, “Crown Law Advice on a Regulatory Standards Bill”, was withheld entirely on the grounds of legal professional privilege. Part of the other document entitled “Short-term measures in advance of the Regulatory Standards Bill”, discussed above, was redacted for the same reason. The Minister provided no additional emails or communications.

I asked the Ombudsman to conduct a review because I did not believe there were no relevant emails or other communications.

52.12 28 April 2025: The Waitangi Tribunal granted urgency for the Wai 3470 Inquiry into the Regulatory Standards Bill.

52.13 29 April 2025: I wrote to the Ombudsman expressing concern that I had heard nothing further regarding the complaint, especially given the Tribunal’s urgency hearing.

52.14 29 April 2025: In a letter dated 28 April, the Ombudsman’s office informed me it was initiating an investigation to the Minister’s response and they had asked to meet the Minister’s staff.

52.15 5 May 2025: A further brief of evidence from me was filed with the Waitangi Tribunal, which annexed the OIA communications and documents from the Minister to date.

52.16 12 May 2025: Minister Seymour wrote that, following a discussion with the Ombudsman’s office, he had “reconsidered the scope” of my request and discovered one additional email previously considered out of scope. “I sincerely apologise for not previously providing this email”. He also released sections of two signed briefs that are referenced in that email relating to consultation and to the Treaty of Waitangi.

In addition, the Minister recognised a briefing with officials on 16 September 2024 was within scope, and had (almost illegibly) handwritten his recollection of his feedback and decisions on the attached briefing.

This delayed release is important, because the Minister would have known that the Tribunal would lose its jurisdiction once the Bill was introduced on 19 May.

52.17 13 May 2025: The information from the Minister on 12 May was filed with the Tribunal.

52.18 16 May 2025: Waitangi Tribunal’s interim report was released, finding a breach of the Crown’s Tiriti obligations and calling for an “immediate halt” to the Bill. The report quoted from the OIA documents and handwritten notes of the Minister released to me on 12 May and tabled with the Tribunal on 13 May.

52.19 19 May 2025: Regulatory Standards Bill was introduced.

52.20 23 May 2025: I made a new OIA request asking who outside of government was consulted on the drafting of the final Bill, was the Bill drafted wholly by the Office of Parliamentary Counsel, and if not who was involved in that work. The response will not be received until 24 June, after submissions on the Bill close.

52.21 10 June 2025 The Ombudsman concluded their investigation. He accepted the Minister’s explanation that there were no further documents within scope because he had decided not to undertake the consultations and engagement initially proposed. But he had advised the Minister that he had wrongly refused by requests under Section 18(d):

Agencies and Ministers cannot rely on section 18(d) if the publicly available information is different to what has been requested, even if it is related; or if it is in a different format. The Minister has advised that the seven documents released to you are not all the information in the scope of this request. The Minister has confirmed that draft and/or signed versions of the briefing documents exist, that communications within scope of the request were had in verbal discussions, and that emails of more administrative nature within scope of the request also exist.

The Minister has advised that no written records exist of relevant discussions. While that may be the case, the information held in the mind of the Minister and his staff regarding these discussions is official information.

If the Minister and his staff communicated about engagement with Māori and the Crown's Tiriti obligations at these meetings, or if the staff provided the Minister with advice on the issue, then recollections of these discussions fell within scope of your request.

In the response to my provisional opinion, the Minister acknowledged that the scoping of the request was flawed. The Minister has since re-scoped the request and on 12 May 2025 released to you additional information. Having considered all the information on hand, it is my opinion that the Minister should not have refused your request under section 18(d).

53. The Minister’s ex post handwritten recollection of his feedback and decisions on te Tiriti and Māori engagement in the briefing dated 16 September 2024, released on 12 May 2025, seemed calculated and contemptuous of having to answer to anyone. His writing is barely legible and its content is derisory. In response to officials’ advice to have “early and ongoing engagement” with Māori throughout the process including engagement with Māori experts, he scribbled “What is a Māori expert?” The paper records the Ministers preference to “engage with kitanga experts” – it is unclear whether that reflects the Minister’s ignorance or that of officials. A further scribble at the end of the document says: “NOWHERE in this report is it explained how including a Treaty principle would deliver better regulation for NZers”.

54. My conclusion from this saga is that the Minister believed that he could avoid disclosure under the Act if he avoided documentation and received advice and made decisions orally, and in his approach overall was not complying with the OIA in good faith.

55. I remain deeply sceptical that there are no other communications that should have been disclosed, given the length of gestation of the Bill and the very large quantity of communications that I am aware of in the parallel development of the Treaty Principles Bill. I have raised this with the Ombudsman, especially given there are several documents on the Treasury website that include advice to the Minister which were released under the OIA by the Treasury, and similar communications must have continued after the date of my first request.

56. The game-playing by the Minister and his office overlapped with the Crown’s lack of forthright disclosure in the Waitangi Tribunal inquiry. Clearly the 16 September 2024 briefing was critically important because it appears to be when the Minister rejected advice relating to engagement with Māori and inclusion of Tiriti references. If I had not appealed to the Ombudsman, it would never have seen the light of day.

57. Whether or not my suspicions are true, the Minister and his advisers are clearly not fit persons to be exercising the proposed powers under the Bill. Are the National and New Zealand First parties prepared to be seen to condone, and implicitly endorse, this kind of behaviour?

Concluding remark

58. The content and process of this Bill is the antithesis of the evidence-based, responsible, principled approach to regulation that it purports to espouse. It is inequitable, unworkable, and unaffordable, and in flagrant and deliberate violation of Te Tiriti o Waitangi. It carries major legal and fiscal risks, as well as dire social and environmental consequences, and would fetter attempts to make markets operate according to capitalism’s fundamental principle of competition.

59. If this Bill was passed, governments would be forced to actively, deliberately and routinely disobey the law, making a mockery of the parliamentary process. Laws that did comply would invite resistance from those who are adversely affected by the primacy accorded to private property and powerful individuals, in particular Māori. Alternatively, an incoming government would have to repeal the law, wasting yet more public funds on unwinding the ACT Party’s ideological fetish.

I wish to speak to this submission in person, and I do not accept that this will be limited to 5 minutes as an individual submitter. There is nothing in Standing Orders that requires such a limitation.

Jane appended her submission on the RSB consultation, as part of her current submission. This can be read here.

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[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://www.scoop.co.nz/stories/PA0709/S00202.htm

[4] See Appendix “E” at pages 80-81 of the BOA.