Jonathan Boston submission on the Regulatory Standards Bill 2025

A guest post sharing Jonathan Boston's submission on the RSB

Comments on the Regulatory Standards Bill

I wish to make an oral submission.

Executive Summary

1. The Regulatory Standards Bill (henceforth RSB) can be reasonably characterized as an ‘everything Bill’. This is because, with only a few exceptions, it seeks to influence and constrain the contents of every statute and regulation, whether existing or yet to be promulgated, bringing them into ever increasing conformity with a particular societal vision – one that some advocates might consider to be a neo-liberal or quasi-libertarian paradise, but which many critics fear will create an inhumane, unjust and ecologically barren dystopia – and one especially hostile to the principles of Te Tiriti o Waitangi, the welfare state and much else that governments of many different persuasions have built over numerous generations. As with all legislative instruments inspired by utopian ambitions, the RSB stretches, if not crosses, the boundaries of commonsense. Wisdom would surely recommend a different path.

2. The original versions of the RSB were drafted several decades ago. Ever since, numerous policy advisers, legal scholars and elected officials have consistently viewed each version as conceptually ill-conceived, philosophically flawed and/or politically inept. Not only are key provisions in such legislation unnecessary, uncertain, and undesirable, but they are also largely unwanted by citizens – certainly if judged by the overwhelming majority of submissions on the earlier Discussion Document (Ministry for Regulation, 2024a) and the contents of the final Regulatory Impact Statement (RIS) (Ministry for Regulation, 2025). The RSB, if enacted, will generate much needless analysis and disputation, waste the time and resources of officials and ministers, and produce numerous departmental ‘consistency accountability statements’ and ministerial statements that carefully, and no doubt with dutiful regret, inform MPs and citizens that most existing and proposed legislation (primary and secondary) contains important provisions that are inconsistent with the ‘principles of responsible regulation’.

3. For such reasons, if the RSB is enacted later this year in anything like its current form it will be guaranteed a short shelf-life. Almost certainly, it will come to be recognized by a future government as a striking exemplar of a costly, unfortunate, yet widely anticipated, legislative debacle. No doubt the numerous thoughtful and well-informed policy advisers across the public service, including many within the Ministry for Regulation, who have highlighted the Bill’s multiple weaknesses and limitations will feel duly exonerated. But only after much ‘sound and fury’, as Macbeth might bemoan.

4. The abiding problems with, and objections to, the RSB are summarized below. There are, however, several positive provisions in the Bill, and these are also briefly noted.

Ill-conceived

5. The Bill seeks to establish a ‘benchmark for good legislation’ – or what Dr Carwyn Jones (2025) has referred to as a ‘control gate’ through which all proposed and existing legislation must pass. This might be regarded as a noble objective. Unfortunately, for the Bill’s advocates, there is no universally agreed benchmark of ‘good legislation’ or commonly agreed ‘control gate’ – certainly in relation to the substance of legislation, but also to some extent to matters of process. And the quest to find and impose such a benchmark will ultimately prove forlorn. The reasons should be self-evident.

6. To start with, there are numerous principles and considerations, including constitutional, philosophical, legal, administrative, political and ethical, that affect judgements about what is ‘good’, ‘right’ and ‘true’. And these, in turn, influence judgements about what constitutes ‘good legislation’– and more generally, what constitutes a ‘good life’, a ‘good society’, ‘good government’ and ‘good processes’. Understandably, people do not always agree with each other about important matters of policy and governance. For instance, they often have different priorities. Alternatively, they value rather different things. This is why legislation enacted by one government is often amended or repealed by a subsequent government. It also helps to explain why constitutions differ and why they get amended, and why modern history is littered with political conflicts, civil wars, military coups, and revolutions.

7. Related to this, there are dozens, if not hundreds of distinct ethical values. To name but a few: human dignity, liberty, justice, equality, sustainability, beauty, peace, progress, resilience, diversity, uniformity, community, social cohesion, safety, privacy, allocative efficiency, ecological health, and fiscal prudence. Many of these values are in tension or direct conflict. Nor can they readily or uncontroversially be reduced to a single overarching ethical norm, such as utility, truth or love. Accordingly, policy trade-offs are inevitable; hard political choices are unavoidable. This means that while various Acts may be consistent with several important principles, they will equally be inconsistent – or at least in tension – with several others. Attempting to draft legislation that is consistent with every conceivable ethical value or principle, along with all other relevant considerations, is simply not possible.

8. Admittedly, it might be contended that all legislation should serve or protect some high-level goal or principle such as ‘justice’ – or perhaps ‘the public interest’, as implied by Clause 8(j)(iii). But that simply begs further questions: what does justice require? And what kind of justice – distributive, natural, commutative, corrective, compensatory, restorative, etc.? Similarly, what does ‘the public interest’ mean? And how should it be pursued? In grappling with such questions, many brilliant philosophers over multiple generations have provided radically different answers. No doubt their divergent approaches will continue.

9. Not only are there fundamental disagreements within democracies like Aotearoa New Zealand about substantive policy and legal matters, such as the nature of a ‘good legislation’ and ‘responsible regulation’, but there are also vigorous disagreements about many procedural matters, such as the requirements for ‘good law-making processes’. To be sure, there is probably more scope for agreement on process matters than substantive matters. But many procedural matters are also controversial – as indeed is the very distinction between process and substance (which is sometimes blurred). What exactly, for instance, does proper consultation entail (e.g. consultation with whom, about what, over what timeframe, etc.)? What constitutes a robust cost-benefit analysis, and should all proposed legislation be subject to such an analysis? Under what circumstances is retrospective legislation justified? What does it mean for legislation to be ‘clear and accessible’? And so on and so forth.

Philosophically flawed

10. The Bill’s proposed ‘principles of responsible regulation’, as enunciated in Clause 8, encompass only a small fraction of the constitutional, legal, philosophical, and ethical principles, along with many other considerations, that have been regarded as relevant for good law-making processes and ‘good legislation’ by governments and their advisers over many generations, if not hundreds of years. Indeed, the list of principles is highly restricted in scope. It is also deliberately skewed in a very narrow philosophical direction. That is not a good start.

11. Among the many relevant goals and principles, often referred to in existing legislation, that are missing from Clause 8 of the Bill are:

a. enhancing human wellbeing or welfare

b. protecting individual rights and group-differentiated rights

c. enhancing allocative and productive efficiency, cost-effectiveness, competition, value for money, minimizing administrative and compliance costs, and related values

d. protecting human health and safety and minimizing public harm

e. protecting privacy

f. honouring the principles of Te Tiriti o Waitangi

g. pursuing justice – in its many and varied forms: natural, procedural, distributive, compensatory, corrective, restorative, intergenerational, etc.

h. protecting environmental values: biodiversity, ecological health, the intrinsic values of ecosystems, the sustainable management of natural resources (both renewable and non-renewable), etc.

i. protecting the rights and interests of future generations

j. applying the precautionary principle

k. avoiding, managing, mitigating and pooling risks

l. protecting the realm

m. complying with the requirements of international law and being good international citizens

n. adhering to the principles of fiscal responsibility and prudence.

12. By excluding so many ethical principles and other relevant considerations, and by adopting a very narrow set of ‘performance standards’, ‘quality measures’ or ‘criteria’ for benchmarking purposes, it is inevitable that most existing and future legislation will be inconsistent with the RSB in one way or another. It would be a simple task to review the purpose statements in recently enacted legislation to highlight the scope and scale of these inconsistencies.

13. The proposed legislation is also internally inconsistent. For instance, Clause 8(j)(iii) requires those developing new legislation or evaluating existing legislation to consider ‘whether the public interest requires that the issue be addressed’; but the Bill does not include in the list of key principles a requirement to ensure that legislation protects the public interest. Indeed, the ‘liberties principle’, as specified in Clause 8(b) excludes protecting the public interest as a possible ground for restricting a person’s liberty.

14. Equally, if not more important, some of the proposed principles are open to serious philosophical and practical objections, certainly in their current form. These include the principle of equality, the liberties principle, and the takings principle. My concerns regarding these principles are set out in the main body of this submission and were raised in response to the Discussion Document – obviously with no influence on the content of the proposed Bill. My concerns reflect those raised in the two RISs, including the summary in Annex 1 of the March 2025 RIS (see pp.73-76).

Politically inept

15. As noted, it is inevitable that most existing and proposed legislation will be found to be inconsistent with the principles enunciated in the RSB. In virtually all such cases the reasons for the inconsistencies will not be because such legislation is unjustified or ill-conceived. Instead, it will be: a) because the principles in the RSB are limited in their scope and are philosophically flawed; and more generally (b) because no benchmarking legislation of the kind proposed can provide a universally applicable, pertinent and valid set of ‘performance standards’.

16. Inescapably, therefore, departmental chief executives from the beginning of 2026 will be faced – as required under Clause 11 of the RSB – with producing dozens, if not hundreds, of ‘consistency accountability statements’ annually that inform the Parliament and the wider public that the government’s proposed legislative initiatives (whether primary or secondary legislation) are inconsistent with one or more of the principles in the Regulatory Standards Act, together with statements by the relevant Minister explaining the government’s reasons for these inconsistencies. Such statements will doubtless soon be regarded, at least colloquially, as ‘inconsistency statements’ – or perhaps as ‘anti-libertarian statements’.

17. At some point, MPs and the public are bound to ask: what is the point of having a so-called ‘benchmark of good legislation and ‘principles of responsible regulation’ that fail to provide a sound, reliable or useful yardstick for assessing legislation? And what is the point of producing, at significant financial cost (not to mention the opportunity costs), a plethora of documents that simply tell MPs and the public, time and time again, that the Regulatory Standards Act is, unfortunately, not fit for purpose? Note that according to the Final RIS (pp.41-42), the annual cost of producing ‘consistency accountability statements’ for new Bills is estimated at around $10 million across the public service, with a similar annual amount for reviewing all existing legislation over a 10-year period. Any such estimates need to be treated with caution, however, as much will depend on the level of detail that such documents require, how much time is spent determining (in consultation with Ministers) whether the (many) inconsistences identified are justified, and what should be done in response to the analyses that have been undertaken.

18. In short, is hard to understand why any Parliament would wish to enact legislation using a ‘benchmark’ for assessing ‘good legislation’ that is not itself ‘good legislation’.

Unnecessary

19. The RSB, if implemented, will contribute to unnecessary duplication of the existing quality assurance processes that are designed to enhance good lawmaking, such as:

a. the requirements for Regulatory Impact Statements and disclosure statements

b. the role of the Parliamentary Counsel Office in drafting primary and secondary legislation

c. the scrutiny role of Parliament (including select committee processes and the opportunities for public submissions)

d. the provisions of the Legislation Act 2019

e. the role of independent advisory bodies, such as the Legislation Design and Advisory Committee (LDAC), the Law Commission, and the Human Rights Commission, and

f. the opportunity to seek judicial review by the courts.

Inadequate

20. Ironically, the government has failed to follow several of the principles for ‘good lawmaking’ enunciated in the RSB (see Clause 8(j), namely:

a. to demonstrate that the proposed Bill is in ‘the public interest’;

b. to carefully evaluate a range of options that are ‘reasonably available for addressing the issue’ (i.e. the policy problem that the RSB seeks to mitigate); and

c. to provide a proper analysis of ‘who is likely to benefit, and who is likely to suffer a detriment, from the legislation’.

21. Significantly, the Ministry for Regulation, which was responsible for overseeing the development of the RSB, believes that there are better ways to achieve the Bill’s main goals – that is, cheaper and more effective ways to increase the quality and robust implementation of regulation and doing so without the risks associated with embracing the proposed principles of responsible regulation in primary legislation (see Ministry for Regulation, 2024b, 2025). Moreover, the Ministry for Regulation is by no means alone in reaching this judgement. For instance, the Treasury (in its Regulatory Impact Statement in 2011) came to the same conclusion regarding an earlier version of the Bill.

22. Likewise, as highlighted by the ‘Summary of Departmental Feedback’ in Annex 5 of various papers released in May 2025 (see Minister for Regulation, 2025), it is evident that multiple departments have significant concerns about the RSB. These include concerns about:

a. the constitutional implications, including the omission of te Tiriti o Waitangi

b. the unnecessary duplication of effort, the high financial cost and undue complexity

c. the risk of generating tensions between departmental chief executives and ministers

d. the time and resources required by Parliament, select committees and the cabinet

e. unintended consequences

f. difficulties in determining whether the benefits of a proposed Bill exceed the costs

g. conflicts between the proposed principles and much existing legislation

h. the role and expertise of the Regulatory Standards Board

i. the capacity of the public service to review all existing legislation within a ten-year timeframe, and much else.

23. The other options available for enhancing the quality of regulation deserve proper analysis. One obvious option would be to make greater use of Regulatory System Amendment Bills (RSABs) (see Kudrna, 2025). Another would be the fuller implementation of the provisions of the Legislation Act 2019.

24. The proposed principles and other provisions in the RSB give little attention to the application and enforcement of government regulations, including the extent to which such regulations are adequately and fairly enforced and whether sufficient measures are in place to minimize and avoid regulatory ‘capture’ (see Doole, et al. 2024). In so doing, the Bill fails to address several of the key reasons for poor regulation.

25. There are many other reasons for questioning the wisdom of the RSB. These are summarized in the main body of this submission.

Positive aspects of the RSB

26. Proposed Bills are rarely entirely flawed. The RSB is no exception. Hence, there is merit in requiring departmental chief executives, as specified in Clause 15, to engage in proactive stewardship of the regulatory system or systems for which they are responsible (and ensuring that other agencies that are part of the public service also do so). Similarly, there is likely to be merit in the Ministry of Regulation (or some equivalent department) producing a briefing ever four years on the state of the regulatory management system, as specified in Clause 16. But there is no need for a Regulatory Standards Act to govern such activities. Instead, such provisions could be achieved through amendments to existing legislation, such as the Public Service Act.

Comments on the Regulatory Standards Bill

Background and relevant evidence

27. The RSB is yet another version of a Bill that has been advanced over recent decades and repeatedly rejected by governments and their advisers. These Bills have been variously called the Regulatory Responsibility Bill and the Regulatory Standards Bill. While the names have changed, the main goals and provisions have remained largely the same, as have the many concerns about, and objections to, such legislation. The objections are now very well documented (e.g. in submissions to Parliament’s Commerce Committee in 2011, submissions on the recent Discussion Document, in academic journal articles, and in multiple documents prepared by government officials, including both the Interim RIS and Final RIS produced by the Ministry for Regulation (2024b, 2025) and other documents released by the Minister for Regulation (2025).

28. As it happens, many of the constitutional, legal, administrative, philosophical and ethical issues raised by the current RSB were discussed at length during a symposium organized by the Institute of Policy Studies (IPS) at Victoria University of Wellington in February 2010, with the relevant papers published subsequently in the May 2010 issue of Policy Quarterly (see: https://ojs.victoria.ac.nz/pq/issue/view/515/pq6-2). At the time, I was Director of the IPS and the editor of Policy Quarterly. All the papers in that special issue of the journal remain surprisingly relevant to the RSB and deserve careful consideration. I urge all those involved in the current legislative process with respect to the RSB to read these papers.[1] Also relevant is a comprehensive critique of an earlier version of the RSB by Richard Ekins and Chye-Ching Huang, ‘Reckless Lawmaking and Regulatory Responsibility’, New Zealand Law Review, 3 (2011), pp.407-442.

The reasons why the proposed Bill should not proceed

29. The main reasons why the Bill should not proceed can be summarized as follows:

a. The Bill is ill-conceived and unnecessary: it lacks a coherent and well-supported problem definition; it fails to follow the ‘principles of responsible regulation’ which it advocates; and there are better ways to address the problems that the Bill seeks to tackle, as highlighted by the Ministry for Regulation (2024b, 2025) and many observers;

b. The proposed ‘principles of responsible regulation’, including those relating to ‘good law-making’ are open to strong constitutional, philosophical, legal, administrative, and ethical objections; and

c. The Bill is politically inept: it lacks strong public and cross-party support; it will cause the current and future governments ongoing embarrassment and frustration; and it will not survive for long in its current form.

Problem definition – what problems does the proposed Bill seek to address?

30. Some brief comments must suffice. As the Interim RIS highlighted (see Ministry for Regulation, 2024b, pp.12-17), there are challenges in assessing the quality of regulation in New Zealand, and indeed elsewhere in the world. There are many potentially relevant criteria and indicators of quality; there are different ways in which these can be weighted; there are gaps in the available evidence; etc. Nevertheless, based on a range of international indicators, New Zealand’s regulatory performance appears to be comparatively good. It is certainly not at the ‘poor’ or ‘weak’ end of the spectrum, despite assertions to the contrary.

31. That said, there is obviously always room for improvement. But any effective strategy for that purpose requires a thorough, robust and accurate understanding of the nature of the problems that are evident, their causes, and the policy options available for addressing them (to the extent that they are amenable to addressing). Unfortunately, the Minister responsible for the RSB, Hon David Seymour (the Minister for Regulation), does not appear to have well-founded assessment of the causes of the current problems. For instance, in his foreword to the Discussion Document late last year (see Ministry for Regulation, 2024a) he claimed that: “Most of New Zealand’s problems can be traced to poor productivity, and poor productivity can be traced to poor regulations.” This claim is unequivocally false. New Zealand, like most countries, has hundreds, if not thousands, of problems – constitutional, political, social, economic, environmental, educational, health-related, infrastructure-related, natural hazard risks, global risks, and so forth. Many, if not most, of these problems have absolutely nothing to do with ‘poor productivity’ (however productivity is defined). Equally, while it is doubtless true that poor regulations are one of the many causes of poor productivity, they are but one cause; there are numerous other factors, some of which are within the control of governments (and their related policy frameworks), but many are outside their control.

32. The Discussion Document in late 2024 (along with reports assessing previous versions of the RSB) identifies a series of problems with our country’s regulatory approach, systems, and stock of regulations. To take a specific example. The claim is made that many laws are out of date and thus no longer fit for purpose. No doubt, this claim has validity. But why is so much legislation out of date? Presumably, a key issue relates to the resources – both political and advisory – that have been devoted to the time-consuming and onerous task of updating existing legislation, together with a tendency for governments to prioritize the drafting of new legislation (e.g. to address new and emerging societal problems). Presumably, therefore, a key part of the solution lies in increasing the resources deployed to reviewing and updating existing legislation. But to what extent the RSB will affect such matters is an open question. For one thing, it will divert scarce departmental resources into preparing ‘consistency accountability statements’ on proposed legislation, thus reducing the resources available for reviewing existing legislation. For another, it is not clear that the RSB will alter the structure of political incentives. There is no guarantee, for instance, that it will encourage governments to spend more of their scarce time and funding on updating existing legislation. Aside from this, the current government is significantly reducing the funding of most government departments, thus lessening their capacity to undertake systematic reviews of existing legislation.

Addressing the problems identified – the failure to follow the principles of ‘good legislation’

33. The Discussion Document in late 2024 outlined, in effect, a single solution to the problems that it had identified, namely a Regulatory Standards Act. Without question, the proposed solution is conceptually demanding, inherently complex, complicated and potentially costly to implement, and open to multiple constitutional, legal, and philosophical objections. But the Document failed to outline, let alone rigorously assess, the policy options that are available to tackle the identified problems. Why not? Good policy making entails a proper analysis of a range of plausible options, including consideration of their various costs and benefits.

34. To compound matters, the process by which the RSB has been drafted is inconsistent with the very ‘principles of responsible regulation’ that the Bill proposes. These principles, as specified in Clause 8(j)-(l) of the Bill, require ‘carefully evaluating:

i. the issue concerned; and

ii. the effectiveness of any relevant existing legislation and common law; and

iii. whether the public interest requires that the issue be addressed; and

iv. any options (including non-legislative options) that are reasonably available for addressing the issue; and

v. who is likely to benefit, and who is likely to suffer a detriment, from the legislation.

Legislation should be expected to produce benefits that exceed the costs of the legislation to the public or persons;

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

35. Note, firstly, the wording of Clause 8(j)(iv): ‘any options (including non-legislative options) that are reasonably available for addressing the issue’. It appears that little effort has been made by ministers to consider any options other than the proposed legislation. Why not?

36. Note, secondly, the requirement, as specified in Clause 8(k) that: ‘Legislation should be expected to produce benefits that exceed the costs of the legislation to the public or persons.’ Again, there appears to have been no thorough cost-benefit analysis. To be sure, the Interim Regulatory Impact Statement included a partial cost-benefit analysis of the proposed Bill – and while incomplete, it indicated that the Bill could impose some significant additional costs on lawmaking processes and on those involved in such processes.

37. Note, thirdly, the requirement, as specified in Clause 8(l) that: ‘Legislation should be the most effective, efficient, and proportionate response to the issues concerned that is available.’ Yet again, the government has not demonstrated that the proposed Bill conforms to these requirements. Is the proposed Bill, for instance, ‘proportionate’? And how should this principle be interpreted and applied?

38. In short, the arguments advanced in the Discussion Document and elsewhere for the RSB are deficient in several important respects, and certainly do not justify the proposition that the Bill is in the public interest.

There are other options available to address the problems identified – and these need proper consideration

39. As many observers have noted over the past few decades, there any many other ways to enhance the quality of the country’s regulatory systems and legislation. Some of these are noted in both the Interim RIS and Final RIS. Others have been advanced by academics and civil society groups.

40. With respect to updating legislation which is no longer fit-for-purpose, one of these options that has been available since 2016-17 is to use Regulatory Systems Amendment Bills (RSABs). As explained by the Ministry for Business, Innovation, and Employment: ‘An RSAB is a package of separate omnibus bills (bills that amend multiple pieces of legislation) that are treated as cognate (related) and progress through the parliamentary process together.’ The aim of RSABs is ‘to improve regulatory systems by ensuring that they are effective, efficient and align with best regulatory practice. The amendments in these Bills achieve this by:

1. clarifying and updating statutory provisions in each Act amended, to better give effect to the purpose of that Act and its provisions

2. addressing regulatory duplication, gaps, errors, and inconsistencies within and between different pieces of legislation

3. keeping the regulatory system up to date and relevant; and

4. removing unnecessary compliance and implementation costs.’[2]

41. The use of RSABs has been increasing in recent years, and there can be no question that they have significant potential to address at least some of the concerns which have prompted the repeated proposals for a Regulatory Standards Act – and to do so relatively cheaply, efficiently, and effectively. Dr Denny Kudrna in the School of Government at Victoria University of Wellington has undertaken an excellent piece of empirical research on RSABs which was published in the February 2025 issue of Policy Quarterly.

42. Note that neither the Discussion Document nor the recent RISs (Interim and Final) discussed the potential role of RSABs, including the extent to which they could address some of the problems with our existing regulatory system.

The proposed title of the Bill

43. The proposed Bill is entitled ‘The Regulatory Standards Bill’. Given this title, many people will presume that the Bill is primarily concerned with a sub-set of legislation, such as the regulation of business activity, health and safety, or environmental regulation. But in fact, the Bill is concerned with legislation is general – that is, all primary and secondary legislation – along with many aspects of lawmaking and regulatory stewardship. Indeed, it has the flavour and purpose of an ‘everything Bill’, as it seeks to bring a common set of principles to bear in evaluating (with a few exceptions) every statutory instrument. As such, it would be more accurate – and thus more consistent with the proposed principle (in Clause 8(a)(i)) for all legislation to be ‘clear and accessible’ – for the Bill to be called ‘The Good Legislation Bill’ or ‘The Good Lawmaking Bill’ (see the arguments, for instance, advanced by George Tanner, 2010).

Constitutional concerns

44. As with its predecessors, the RSB is unquestionably of constitutional significance (see Ekins, 2010; Ekins and Huang, 2011; Geddis, 2025; Jones, 2025; Palmer, 2010, Rishworth, 2010; Tanner, 2010). An earlier version was described by a strong supporter as a ‘regulatory constitution’ (quoted in Ekins and Huang, 2011, p.8). Similarly, the constitutional law expert Professor Paul Rishworth (2010) described the original RRB as a ‘second Bill of Rights’.

45. While the proposed RSB is not in a strict sense ‘constitutionally superior law’ and while the consistency assessments would not be legally binding, the Bill is nonetheless constitutionally important. This is because it is designed, in effect, to prevent – or at least deter – legislation (both primary and secondary) from being enacted on the grounds that it is in some sense ‘unconstitutional’ (i.e. it is inconsistent with the principles of ‘good law-making and ‘responsible regulation’). In other words, legislation that is deemed in some way or other to be inconsistent with such principles would be regarded as ‘irresponsible regulation’ and thus unjustified, if not reprehensible. As such, therefore, the Bill is clearly intended to influence and constrain the purposes for which public power is employed. To quote Professor Andrew Geddis (2025):

The RSB will, in effect, create a regulatory constitution for New Zealand by creating a partially entrenched legislative framework with which all new (and eventually all existing) legislation is expected to comply, unless an exemption is granted. The RSB framework is designed to impose limits within which Parliament may properly legislate and is therefore, by definition, constitutional in nature.

46. Particularly concerning, legislation would be ‘unconstitutional’ from the perspective of the proposed Bill if it is inconsistent with a specific ideological creed or political philosophy, namely what is often referred to as ‘neo-liberalism’ or ‘market liberalism’, if not a version of libertarianism. This is evident from the wording of some of the ‘principles of responsible regulation’ (see below) which are deliberately designed to constrain the grounds upon which the state can justifiably regulate human behaviour. The grounds in question (e.g. the formulations of the principle of liberty and the ‘takings’ provision) are highly restrictive and strongly linked to neo-liberal, if not libertarian, assumptions, values, and claims. Hence, regulations designed, for instance, to promote environmental goals, such as the protection of biodiversity or the maintenance of ecosystem health or integrity, would be inconsistent with one or more of the proposed principles of responsible regulation. Much the same would apply to legislation aimed at redistributing income and/or wealth to enhance social justice and/or alleviate poverty. Equally, legislation based on paternalistic grounds, such as that designed to prevent individuals who are psychotic from harming themselves, would be inconsistent with the RSB. For such reasons, the Bill is inconsistent with the country’s legislative history, traditions and cultural values.

47. Admittedly, the RSB is different from earlier versions in that it does not mandate a specific role for the courts in interpreting the proposed principles of good lawmaking. Earlier versions, for instance, provided for the courts to declare legislation ‘inconsistent with the principles’. Establishing a role for the courts of this kind was designed to strengthen the incentives for governments to avoid pursuing legislative initiatives which are clearly at odds with one or more of the principles.

48. Normally, the absence of specific provisions relating to judicial review or declarations of inconsistency would not prevent applications to the courts (e.g. under the Judicial Review Procedure Act 2016 or the Declaratory Judgements Act 1908). After all, from a constitutional perspective the courts should have a critical role in interpreting legislation. In the case of the RSB, however, Clause 24(1) states that ‘This Act does not confer a legal right or impose a legal obligation on any person that is enforceable in a court of law’. Hence, aside from the provisions in Part 3 (see Clause 24(2)), the RSB appears to be deliberately designed to prevent the courts from interpreting the Bill, not least the principles in Clause 8. This is a highly unusual arrangement – and partly for this reason the legal implications are unclear. Potentially, however, it might mean that if the RSB is enacted in its current form, there would be no legal obligation for departmental chief executives to prepare ‘consistency accountability statements’ or for ministers to provide reasons if their proposed Bills are inconsistent with one or more of the principles in a Regulatory Standards Act. If so, then important provisions in such an Act would be, in effect, a paper tiger. But caution is needed in reaching such a verdict.

49. Be that as it may, as highlighted by Professor Geddis, Dr Carwyn Jones and the Waitangi Tribunal, the RSB could significantly reshape legislation affecting Māori. For one thing, there is no reference in the Bill to te Tiriti o Waitangi, the principles of te Tiriti or the rights and interests of Māori. This is clearly deliberate. In effect, the Bill appears designed to delegitimize the Treaty and its associated principles. It seeks, in other words, to impose a legal framework – if not a quasi-constitutional order – that ‘by default’ creates, to quote Carwyn Jones (2025), a ‘regulatory constitution’ containing ‘Anti-Treaty principles’. Among other things, the Bill would deem any efforts to achieve substantive equality for Māori as inconsistent with ‘good law making’. Likewise, by virtue of the principles that the proposed Regulatory Standards Board would be required to apply, the Board would essentially become an ‘Anti-Waitangi Tribunal’. I note that the Waitangi Tribunal (2025) largely agreed with the views of Professor Geddis and Dr Jones that: ‘the Bill, if enacted, would be of constitutional significance’ and ‘a statute of a constitutional nature’.

50. Finally, as various government departments have highlighted (see Minister for Regulation, 2025, especially Annex 5), the requirement for departmental chief executives to produce ‘consistency accountability statements’ (see Clauses 9 and 23) and in doing so to ‘act independently’ of their Minister, could create tensions between chief executives and their Minister. This is because it will often be a matter of judgement as to whether proposed provisions in a government Bill are consistent or not with the ‘principles of responsible regulation’. Much the same will apply to the question of whether any identified inconsistencies are significant, whether they are justified or not, and what responses might be appropriate. To the extent that the ‘principles of responsible regulation’ are regarded by Ministers as a desirable and dependable template for ‘good legislation’, they will naturally be concerned to ensure that their proposed legislation is fully consistent with such principles and will find any advice to the contrary unwelcome. Under these circumstances, departmental chief executives will find themselves between a rock and hard place – not least, if my analysis is correct, namely that most legislation will be inconsistent with one or more of the principles in the RSB .

Philosophical concerns

51. From a philosophical perspective, the proposed ‘principles of responsible legislation’ are open to strong, if not fundamental, objections. For one thing, there is no established ‘benchmark for good legislation’ of the kind that the Bill seeks to implement. Accordingly, the Bill is ill-conceived and will fail in its intended purpose. For another, some of the proposed principles are vague and will thus cause legal uncertainty. Others are not well-established principles. Alternatively, they violate well-established and vitally important principles – principles that are to be found, explicitly or implicitly, in multiple Acts, locally and internationally. Let me explain.

The misguided quest for a comprehensive and universally applicable ‘benchmark for good legislation’

52. The Bill seeks to establish a ‘benchmark for good legislation’ – or what Dr Carwyn Jones (2025) has referred to as a ‘control gate’ through which all proposed and existing legislation must pass. This might be regarded as a noble objective. Unfortunately, for the Bill’s advocates, there is no universally agreed ‘benchmark for good legislation’ or commonly agreed ‘control gate’ – certainly in relation to the substance of legislation, but also to some extent regarding matters of process. And the quest to find and impose such a benchmark will ultimately prove forlorn. The reasons should be self-evident.

53. To start with, there are numerous principles and considerations, including constitutional, philosophical, legal, administrative, political and ethical, that affect judgements about what is ‘good’, ‘right’ and ‘true’. And these, in turn, influence judgements about what constitutes ‘good legislation’ – and more generally, what constitutes a ‘good life’, a ‘good society’, ‘good government’ and ‘good processes’. Understandably, people do not always agree with each other about important matters of policy and governance. For instance, they often have different priorities. Alternatively, they value rather different things. This is why legislation enacted by one government is often amended or repealed by a subsequent government. It also helps to explain why constitutions differ and why they get amended, and why modern history is littered with political conflicts, civil wars, military coups, and revolutions.

54. Related to this, there are dozens, if not hundreds of distinct ethical values. To name but a few: human dignity, liberty, justice, equality, sustainability, beauty, peace, progress, resilience, diversity, uniformity, community, social cohesion, safety, privacy, allocative efficiency, ecological health, and fiscal prudence. Many of these values are in tension or direct conflict. Nor can they readily or uncontroversially be reduced to a single overarching ethical norm, such as utility, truth or love. Accordingly, policy trade-offs are inevitable; hard political choices are unavoidable. This means that while various Acts may be consistent with several important principles, they will equally be inconsistent – or at least in tension – with several others. Attempting to draft legislation that is consistent with every conceivable ethical value or principle, along with all other relevant considerations, is simply not possible. It is a deeply flawed pursuit.

55. Admittedly, it might be contended that all legislation should serve or protect some high-level goal or principle such as ‘the public interest’, as implied by Clause 8(j)(iii). But that simply begs further questions: what does ‘the public interest’ mean? And how should it be pursued? The same applies to multiple aggregative concepts, such as the common good, the common interest, the general good, the public good, the public welfare, and the greatest good for the greatest number. Much the same problem would also apply if the test (or perhas one of the tests) of ‘good legislation’ was the pursuit of justice. This would beg the following questions: which principles of justice (egalitarian, non-egalitarian, rights-based, needs-based, etc.) should be applied? Likewise, which kinds of justice are relevant (e.g. distributive, natural, commutative, corrective, restorative, compensatory, etc.)? And given that some of the principles of justice conflict, what prioritization rule should be applied (e.g. absolute priority, weighting, lexicographical ordering, etc.)? In grappling with such questions, many brilliant philosophers over multiple generations have provided radically different answers (e.g. Aristotle, Plato, Rawls, Sen, etc.). No doubt their divergent approaches will continue.

56. Aside from this, the Bill’s proposed ‘principles of responsible regulation’, as enunciated in Clause 8, encompass only a small fraction of the constitutional, legal, philosophical, and ethical principles, along with many other considerations, that have been regarded as relevant for good law-making processes and ‘good legislation’ by governments and their advisers over many generations, if not hundreds of years – locally and globally. Indeed, the list of principles is highly restricted in scope. It is also deliberately skewed in a very narrow philosophical direction. That is not a good start.

57. Among the many relevant goals and principles, often referred to in existing legislation, that are missing from Clause 8 of the Bill are:

a. enhancing human wellbeing or welfare

b. protecting human rights, as for instance reflected in the Universal Declaration of Human Rights, including individual rights other than those mentioned

c. protecting important collective rights and group-differentiated rights

d. enhancing allocative and productive efficiency, cost-effectiveness, competition, value for money, minimizing administrative and compliance costs, and related values

e. protecting human health and safety and minimizing public harm

f. protecting privacy

g. honouring the principles of Te Tiriti o Waitangi

h. pursuing justice – in its many and varied forms: natural, procedural, distributive, compensatory, corrective, restorative, intergenerational, etc.

i. protecting environmental values: biodiversity, ecological health, the intrinsic values of ecosystems, the sustainable management of natural resources (both renewable and non-renewable), etc.

j. applying the precautionary principle

k. protecting the rights and interests of future generations

l. avoiding, managing, mitigating and pooling risks

m. protecting the realm

n. complying with the requirements of international law and being good international citizens

o. adhering to the principles of fiscal responsibility and prudence.

58. By excluding so many ethical principles and other relevant considerations, and by adopting a very narrow set of ‘performance standards’, ‘quality measures’ or ‘criteria’ for benchmarking purposes, it is inevitable that most existing and future legislation will be inconsistent with the RSB in one way or another. It would be a simple task to review the purpose statements in recently enacted legislation to highlight the scope and scale of these inconsistencies.

59. Not only are there fundamental disagreements within democracies like Aotearoa New Zealand about substantive policy and legal matters, such as the nature of a ‘good legislation’ and ‘responsible regulation’, but there are also vigorous disagreements about many procedural matters, such as the requirements for ‘good law-making processes’. To be sure, there is probably more scope for agreement on process matters than substantive matters. But many procedural matters are also controversial – as indeed is the very distinction between process and substance (which is sometimes blurred). What exactly, for instance, does proper consultation entail (e.g. consultation with whom, about what, over what timeframe, etc.)? What constitutes a robust cost-benefit analysis, and should all proposed legislation be subject to such an analysis? Under what circumstances is retrospective legislation justified? What does it mean for legislation to be ‘clear and accessible’? And so on and so forth.

The problems with some of the proposed ‘principles of responsible regulation’

60. Aside from the ill-conceived effort to devise a universally applicable set of principles to determine what is ‘good legislation’ or ‘responsible regulation’, some of the proposed principles are deeply flawed. The following discussion focuses on four of the principles and/or sub-principles listed in Clause 8 of the RSB:

a. The principle that ‘every person is equal before the law’

b. The ‘liberties principle’

c. The principles relation to the ‘taking of property’

d. The principles relating to ‘taxes, fees and levies’.

The Equality Principle

61. The RSB includes the principle that ‘every person is equal before the law’ as a sub-principle within the broader ‘rule of law’ principle. There are fundamental problems with the proposed equality principle.

62. To be sure, some legal rights apply to all citizens equally or are coincident in space, time or scope – for instance, the right to ‘freedom of thought, conscience, religion’ in Section 11 of the Bill of Rights Act 1990. All citizens enjoy this right. But many legal rights do not apply to all citizens equally. Instead, the law distinguishes, differentiates, and discriminates between people, and it does so for all manner of good, sound, and readily justifiable reasons. Indeed, to quote Savannah Post (2016, p.45): ‘Law, by its very nature, distinguishes between individuals’. Justified discrimination under the law is thus commonplace – both here in New Zealand and throughout the world.

63. Accordingly, the right to equality before the law (and related versions of this right such as equality under the law or equal justice under law), along with the right to the equal protection of the law and the right to the equal benefit of the law – do not require the application of the law equally to every citizen. Nor do these rights require that all laws be exactly the same or equal in some sense for every citizen. Rather, such rights mean that every law should be applied equally, but only to those to whom the relevant law in question applies. Hence, the application of the law will differ from person to person depending on multiple characteristics and circumstances, such as their age, intentions, roles in society, membership of specific groups, organizations, iwi, and so forth.

64. Aside from this, the right to ‘equality before the law’ has often been interpreted and applied in radically different ways by the courts. For generations, for instance, the US Supreme Court considered equality before the law to be compatible with differential treatment of people based on their ethnicity in ways that would later be regarded as totally unjust and repugnant forms of discrimination. Unsurprisingly, therefore, in the final RIS (Ministry for Regulation, 2025), officials highlight that risks associated with affirming in legislation the principle that ‘everyone is equal before the law’. Among other things, it could be interpreted as either rejecting or affirming substantive equality – i.e. a requirement that governments consider how to achieve equal outcomes for people, not just equal treatment. And in many cases both interpretations will be highly problematic.

65. For such reasons, claimed principles such as ‘equality before the law’, ‘one law for all’ or ‘the same law for all’ are inherently simplistic and can be deeply misleading. To quote Savannah Post again (2016, p.67): ‘while memorable catchphrases like “one law for all” lend themselves to sound bites on the evening news, they also tend to oversimplify the issues at hand, clouding legitimate debate and hindering constructive discourse.’ Moreover, a law which applies equally to everyone (or every citizen) might readily be extremely harmful, illiberal or anti-democratic – for instance, a law which restricts the freedom of expression of everyone equally. In short, legal equality is totally compatible with serious breaches of fundamental human rights. Unfortunately, defenders of slogans like ‘one law for all’ often have no idea what such propositions mean or why, in certain contexts, they might be thoroughly bad.

Liberty-limiting principles

66. The principle relating to ‘liberties’ is open to serious objections. As proposed in Clause 8(b), the principle states:

legislation should not unduly diminish a personʼs liberty, personal security, freedom of choice or action, or rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such liberty, freedom, or right of another person.

67. As many observers have noted in relation to the previous versions of the RSB, the principle relating to liberties is problematic for multiple reasons:

a. It is not a well-established legal principle. The very broad references to ‘liberty’ and ‘freedom of choice or action’ are unusual from a constitutional perspective.

b. As worded, there is a lack or congruence or equivalence with respect to ‘personal security’; that is to say, protecting is an individual’s ‘personal security’ is not included as a ground for limiting the liberty of another person. This is very strange.

c. The proposed principle is potentially highly restrictive. It would be incompatible with a great deal of existing and likely future legislation. After all, numerous Acts limit or diminish a person’s liberty in one way or another – and for many good reasons (see (d) and (e) below). If enacted, therefore, many current laws would be deemed inconsistent with the Regulatory Standards Act. This could contribute to uncertainty and confusion – and doubtless much hand-wringing.

d. As worded, the proposed principle would only permit limitations to a person’s liberty ‘as is necessary to provide for, or protect, any such liberty, freedom, or right of another person’. That is to say, restricting a person’s liberty would only be justified if such action is necessary to prevent harm to other people. This constitutes one of the two main versions of the well-known ‘harm principle’ (i.e. it is the so-called private harm principle). But the harm principle, as commonly understood, is not limited to preventing harm to other people (i.e. private or individual harm). It can also be employed to justify laws designed to prevent harm to the public, communities or the nation, such as harm to public institutions, arrangements and practices that are deemed to be in ‘the public interest’ or for ‘the common good’. This constitutes the public harm principle. For example, laws against contempt of court are widely employed internationally, as are laws against tax evasion, smuggling or desecrating gravesites. But such laws are not designed to prevent harm to specific individuals. Rather, their aim is to prevent harm to public institutions that serve or protect the public interest – for instance, because these institutions perform important, if not vital, public functions and facilitate the pursuit of widely accepted public purposes.

e. Aside from the private and public versions of harm principle, there are many other well-established ‘liberty-limiting principles’ that provide (at least in certain circumstances) justifiable grounds for the use of state coercion. One of these principles is to prevent people from harming themselves (rather than other people). Such a principle is reflected in the Mental Health (Compulsory Assessment and Treatment) Act 1992. Another principle, also of a paternalistic nature, is concerned with requiring people to do things for their own good (e.g. wearing seat belts when travelling in vehicles and wearing helmets when riding bicycles). Yet another ‘liberty-limiting principle’ focuses on protecting critical environmental ‘goods’ from being damaged, despoiled or degraded by people (e.g. protecting endangered species, distinctive landscapes, and unique ecosystems). Similarly, it will often be justified to limit liberty to enable collective goals to be pursued, such as reducing the risks to lives and property posed by natural hazards (e.g. seismic events or sea level rise), or enabling the funding of public goods, such as national defence and security.

68. In short, the current version of the principle relating to liberties in Clause 8 of the RSB is fundamentally flawed. It seeks to impose highly restrictive limits on what regulatory measures governments can justifiably undertake. Any attempt to adhere to such limitations would require a massive rewrite – and indeed the abandonment – of a vast swathe of existing laws. Presumably, this is precisely what (at least some of) the Bill’s advocates intend. But such an approach has nothing to commend it. No democracy has ever embraced such an approach, nor is one ever likely to do so. Not only is the principle, as formulated, open to serious moral and philosophical objections, but also its full implementation would likely render it impossible to maintain a stable, well-ordered, properly functioning democracy. This is because many of the functions that governments need to undertake to enable the efficient and effective operation of markets and provide essential public services require limitations on individual rights; yet most of these limitations would be deemed unjustifiable under Clause 8(b).

69. Admittedly, if the proposed legislation included a justifiable limitations provision, then presumably some functions that governments need to undertake in the public interest, but which would violate the highly restrictive liberties principle, might nevertheless be deemed acceptable on the grounds that they are ‘demonstrably justified in a free and democratic society’. But if it is necessary to employ the justifiable limitations provision repeatedly to justify many, if not most, existing and new laws, this would surely suggest that there is something fundamentally wrong with the proposed liberties principle.

Property rights, regulatory takings, and fair compensation

70. Equally forceful and compelling objections can be levelled against the proposed principle in Clause 8(c) regarding the taking or impairment of property. The proposed version of the ‘takings’ principle is as follows:

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

(i) there is good justification for the taking or impairment; and

(ii) fair compensation for the taking or impairment is provided to the owner; and

(iii) the compensation is provided, to the extent practicable, by or on behalf of the persons who obtain the benefit of the taking or impairment:

71. Note that the proposed wording is very similar to that embraced within the previous versions of the Bill, except that ‘fair compensation’ has replaced ‘full compensation’, while ‘good justification’ has replaced ‘the public interest’.

72. Plainly, the goal of the proposed principle is to provide a strong defence of property rights – and hence the existing pattern of private ownership in the country and all the associated rights. No doubt, there are many good economic and social reasons for placing significant weight on the protection of private property – and for providing compensation if private property is acquired by the state for various public purposes (e.g. the construction of dams, roads, public utilities, etc.). But, as many commentators have pointed out, there are numerous problems with the wording and intentions of the proposed principle (see Bertram, 2010; Ekins, 2010; Ekins and Huang, 2011). Arguably, too, the whole approach is inconsistent with the approach to property rights taken in New Zealand over much of its history, as reflected, for instance, in Section 85 of the Resource Management Act (see France-Hudson, 2024).

73. In brief, the main concerns include:

a. The proposed principle leaves key words undefined – namely, ‘property’, ‘taking’, ‘impairment’, ‘fair compensation’, ‘benefit’, and ‘good justification’ – thereby creating not only legal uncertainty, but deep and abiding challenges for policy analysts. Admittedly, some of the uncertainty may be resolved, or at least reduced, by the proposal for the Ministry for Regulation to produce guidelines on how to interpret and apply the principles. But given the philosophically questionable and ideologically-motivated nature of several proposed principles, including the takings provision, there is a risk that the proposed guidelines will be employed to help entrench thoroughly dubious dogma.

b. The proposed principle constitutes an unorthodox legal principle, especially regarding the requirement to provide compensation for ‘impairment’ (and not only expropriation) of property rights. It would, according to Ekins and Huang (2011, p.12) establish ‘a very strong doctrine of regulatory takings that is foreign to our constitution … the New Zealand constitution does not recognise a generic doctrine of regulatory takings’.

c. Attempting to apply the principle, as drafted, could cause all manner of practical and political problems. For one thing, depending on how various words are interpreted, it could greatly increase the fiscal costs of new regulatory measures – especially those which involve the ‘impairment’ of properties rights. To illustrate: new environmental regulations designed to reduce environmental harm are likely to impair the use rights of the affected property owners (to the extent that there are any such ‘rights’ – see France-Hudson, 2024). These owners would, in turn, be entitled to ‘fair compensation’. And presumably, since the affected property owners are unlikely to be the main beneficiaries of the new regulations, it would fall on others (very likely ratepayers and/or taxpayers) to provide the required compensation. In effect, the principle of ‘polluter pays’ would be replaced with the principle of ‘non-polluters pay’. The moral basis for such an approach is highly problematic. It would be like compensating slave owners for the loss of their ‘property’ (i.e. their slaves), rather than compensating the slaves for their loss of basic rights and the appalling treatment they have endured. (I realize that slave owners have sometimes been compensated in the past [e.g. by the British government in the 1830s], but that does not make such an approach morally justifiable.)

d. Aside from this, in many situations it will be hard to determine what would constitute ‘fair compensation’ and who the relevant ‘beneficiaries’ are – and thus who should pay the compensation in question. Consider the problems associated with the projected multi-metre rise in the sea level over coming centuries. Arguably, it will be the interests of public health and safely to move vast numbers of people and related physical structures out of harm’s way and to do so pre-emptively on a precautionary basis.[3] Suppose, in this context, that the government chose to impose new land-use regulations designed to prevent people in locations faced with an imminent threat of inundation from continuing to live in dwellings on their at-risk properties. Almost certainly, this would constitute an impairment. Hence, in accordance with the provisions of the proposed Bill, such an impairment, unless voluntarily consented to, would require ‘fair compensation’. But what would be ‘fair’ in this context? And fair to whom (owners, ratepayers, taxpayers, future generations, etc.)? Presumably, the property owners who are no longer permitted to live in their homes will argue that it is only fair for them to be compensated. And since they are, in effect, losing their homes, they should receive compensation equivalent to the value of their dwellings – and perhaps also their land. But how should their dwellings be valued? Would it be fair to use their market value? Bear in mind that this may be very low – even more so if the properties in question are uninsurable and if inundation is imminent. The proposed takings principle will not help policymakers resolve such matters as it provides no guidance on what is meant by ‘fair’. And, as is obvious from the vast literatures on matters of distributive justice, compensatory justice, and restorative justice, there is no shortage of principles of fairness.

e. Next, consider the question of the beneficiaries: who will benefit – and benefit most – from the government’s proposed regulatory intervention? Arguably, the main beneficiaries are: a) those who, as a result, will be kept safe from flooding and the related risks to their health and safety (i.e. the affected property owners); and b) those who will no longer need to place their lives at risk if called upon to rescue people from flooded homes (i.e. the first responders). On this basis, the takings principle, if applied as proposed, would require those who are being displaced from their homes to compensate themselves for the loss of their use rights. But this would be nonsensical. And why should first responders be expected to contribute? What this conclusion highlights, among other things, is that the real world is complex and multifaceted. Hence, while simple all-encompassing principles may seem highly attractive, at least at first sight, in practice they are often hard to operationalize and can generate unintended and undesirable outcomes.

Taxes, fees and levies

74. The proposed principles relating to taxes, fees and levies in Clause 8(d), (e) and (f) are equally problematic. These state:

a) The importance of maintaining consistency with Section 22 of the Constitution Act 1986 (Parliamentary control of public finance):

b) legislation should impose, or authorise the imposition of, a fee for goods or services only if the amount of the fee bears a proper relation to the costs of efficiently providing the good or service to which it relates:

c) legislation should impose, or authorise the imposition of, a levy to fund an objective or a function only if the amount of the levy is reasonable in relation to both:

(i) the benefits that the class of payers are likely to derive, or the risks attributable to the class, in connection with the objective or function

(ii) the costs of efficiently achieving the objective or providing the function.

75. There are several serious problems with the proposed wording of these principles. One of these is determining what is ‘reasonable’. In many cases it is extremely difficult to assess the benefits and costs (or risks) of government interventions, or determine the extent, severity and monetary value of the positive and negative externalities associated with particular human activities. Much depends on the available information (which is often inadequate), the assumptions that underpin the analysis, the chosen discount rate, how non-market impacts are quantified and monetized, and so forth. Take, for instance, the social cost of human-induced greenhouse gas (GHG) emissions, such as carbon dioxide emissions: estimates of the social cost of carbon (e.g. by governments and researchers around the world) continue to vary greatly. Hence, for some, a ‘reasonable’ carbon tax would be in the vicinity of US$50 a tonne; for others it would hundreds of US dollars a tonne; and for yet others it would be thousands of US dollars a tonne. Hence, simply requiring a levy on carbon (or other GHGs) to be ‘reasonable’ does not resolve such matters.

76. Regarding the chosen discount rate: when I joined the NZ Treasury as an Investigating Officer in 1984, the public sector discount rate recommended by the Treasury was 10%. It was subsequently reduced over the following few decades on several occasions. Very recently (October 2024), it was reduced yet again. For non-commercial proposals, the recommended discount rate is now 2%, falling to 1.5% after 30 years, and 1% after 100 years.[4] Accordingly, many projects which would have been deemed ‘uneconomic’ and thus unwarranted (and thus ‘unreasonable’) in 1984, will now be economically viable.

77. Another issue concerns the meaning and policy implications of the principle enunciated in Clause 8(e): what does ‘a proper relation’ mean? Does it require that the relationship should be roughly 100% of the costs of the efficiently produced good or service (e.g. public roads) or is a much lesser amount acceptable? There are many goods and services which are provided by central and local governments that are funded via multiple revenue streams (e.g. the costs of ACC, NHCover, roads, tertiary education, primary health care, etc.). How the proposed principle might affect such funding arrangements is uncertain.

78. Much the same uncertainty surrounds the meaning and policy implications of the principles enunciated in Clause 8(f), namely that: ‘Legislation should impose, or authorise the imposition of, a levy to fund an objective or a function only if the amount of the levy is reasonable in relation to both– (i) the benefits that the class of payers is likely to derive, or the risks attributable to the class, in connection with the objective or function’, etc. Many levies that are currently imposed by the central government are not designed primarily – or even partly – to secure benefits for those on whom they are imposed, but rather to benefit other people and/or the environment. This applies, for instance, to waste disposal levies, customs levies, offender levies, forestry levies, etc. etc. Given the proposed wording of the principles embodied in Clause 8(f), therefore, such levies would presumably be unreasonable and thus unjustified. Again, this highlights the philosophically narrow and ideologically-motivated nature of some of the proposed principles of regulatory responsibility, and their inherent indifference to, if not implicit rejection of, policy goals such as protecting the public interest, enhancing distributive justice, and protecting the environment. If these broader goals were to be properly recognized in a statute of the kind envisaged, a very different set of principles would be required.

The Proposal for a Regulatory Standards Board

79. The RSB, if enacted, will establish a Regulatory Standards Board. This would be a statutory board, with the secretariat provided by the Ministry for Regulation. As proposed, it would be advisory in nature; it would not have decision-rights. As specified in Clause 29, the Board’s functions would be to undertake inquiries into existing legislation (i.e. to ascertain their consistency with the ‘principles of responsible regulation’, consider consistency accountability statements for Bills, and report on its consideration to the relevant Parliamentary Select Committee.

80. Earlier versions of the RSB did not provide for such a Board. Instead, they envisaged that declarations of inconsistency would be made by the courts. But establishing a separate Board to undertake such a task, along with several related functions, is of doubtful merit. First, in practice the Board is likely to duplicate the analytical work and legal advice provided by the Ministry for Regulation, Crown Law, and other government departments. In short, it will simply add to the costs of public administration. Second, as argued above, much existing and proposed legislation is likely to be inconsistent with one or more of the proposed principles of responsible regulation – and for good reasons. Simply drawing attention to such inconsistencies is not likely to affect the political appetite for amending legislation. Further, it seems destined to cause considerable political frustration. Third, and related to this, the members of the Board will face the constant challenge of assessing important and unavoidable policy trade-offs. For instance, a proposed amendment to an existing Act might reduce the intrusiveness of the state (e.g. by eliminating strict measures to enhance public health) but only at the expense of long-term productivity (e.g. due to increased obesity, addictions, and ill-health). Alternatively, a proposed amendment might promote productivity, but only at the expense of greater state coercion. It is unclear what criteria or decision-rules the Board would be supposed to apply to address such conflicts. Nor is it clear whether ministers would support the Board’s ethical judgements – and related recommendations.

What is missing from the proposed principles?

81. Given the preceding analysis, it will be evident that the RSB is seriously flawed in multiple respects. Many of these flaws are philosophical in nature. Above all, they reflect a desire by those promoting the Bill to impose a narrow and impoverished conception of what is a ‘good legislation’ – including what constitutes a ‘good life’ and a ‘good society’ – and an associated highly restrictive conception of the proper role of the state and hence ‘good government’. As argued above, this conception is grounded in the values, principles, and goals of neo-liberalism or market liberalism, if not a version of libertarianism. From this perspective, governments are only justified in enacting legislation (both primary and secondary) which impinge upon individuals’ rights and freedoms for a very limited range of purposes, specifically to prevent demonstrable harm to other individuals and/or their property. All other grounds for state coercion, in accordance with this philosophical position, are unjustified. Yet, as explained earlier, there are many other legitimate grounds for state coercion – grounds which have been accepted by governments of widely differing political persuasions, both in Aotearoa New Zealand and elsewhere in the democratic world for many generations. These broader grounds, and their related ethical values, would need to be properly recognized and endorsed in a RSB if any such legislation were to have any chance of securing multi-party support and contributing in a durable and effective way to the drafting of better laws. But, as argued above, there are large numbers of such goals and values, and some of them are in conflict. Accordingly, any attempt to list them all in a ‘benchmark for good legislation’ or an equivalent ‘everything Act’ would be highly cumbersome and complicated, and would be of doubtful utility. Almost certainly it would prove to be unwieldy, costly and extremely time-consuming to test every new or existing statute against a long list of potentially relevant criteria.

82. Aside from this, the proposed legislation fails to address some of the major causes of regulatory failure in Aotearoa New Zealand. These include, in no order of importance:

a. inadequate public investment in assessing the relative merits of different modes of regulation (e.g. prescriptive, performance-based, principle-based, process-based, etc.), and the related issues of institutional design and regulatory governance

b. inadequate public investment in compliance monitoring and enforcement

c. inadequate public investment in building the skills and capability in regulatory bodies needed to undertake robust regulatory stewardship

d. inadequate public investment in foresight activities, information gathering and data analysis to enable sound anticipatory governance

e. inadequate public investment in risk assessment and risk mitigation, along with related efforts to enhance economic and societal resilience and improve environmental sustainability

f. a lack of attention to the risks of regulatory capture (see Bertram, 2021; Doole, et al., 2024, 2025).

Conclusions

83. For all the reasons outlined in this submission, the RSB is fundamentally unsound – constitutionally, legally, philosophically and ethically. It is also arguably inept politically. If enacted as planned, it will result in large numbers of ‘consistency accountability statements’ during 2026 and beyond that inform Parliament and the public that the current government is acting inconsistently with one or more of the principles embodied in the Regulatory Standards Act – legislation which the government itself enacted to provide a ‘benchmark of good legislation’. At best, this will be politically embarrassing; at worst, it will make the current government look foolish. And as the number and seriousness of the inconsistencies mount up – as they inevitable will – so too will the degree of foolishness increase.

84. Most, but not all, of the objections to earlier versions of the current Bill, remain valid. To quote George Tanner, in his reflections on the proposed RRB in 2010:

“The bill falls short of complying with many of its own principles. Its use of open-textured language leads to uncertainty of meaning. It attempts to define good law making by reference to a set of simple principles: in doing so it obscures the complexities inherent in them and creates the same lack of clarity and uncertainty that it seeks to prevent. Legislating is a complex business. The bill suggests it is not. The bill suffers from an acute lack of problem definition and does not properly identify and assess workable alternatives. Without massive additional resources, it would be impossible to make all existing legislation compliant with the principles [within any reasonable timeframe]. The bill is a disproportionate and inappropriate response to the issue it seeks to redress” (2010, p.32).

85. Finally, as noted above, there are many other ways to improve the quality of legislation and lawmaking in Aotearoa New Zealand, and these need proper attention.

Selected References

Bertram, G. (2010) ‘Deregulatory irresponsibility: Takings, Transfers and Transcendental Institutionalism’, Policy Quarterly, 6, 2, pp.48-53.

Bertram, G. (2021) ‘Regulatory capture in product markets and the power of business interests’, Policy Quarterly, 17, 2, pp.35-44.

Boston, J. (2025) ‘Brief of Evidence of Jonathan George Boston’, TamakiLegal, 19 March.

Doole, M. et al. (2024) ‘Navigating Murky Waters: characterising capture in environmental regulatory systems’, Policy Quarterly, 20, 4, pp.44-53.

Dool, M. et al. (2025) ‘Drain the Swamp to Save the Swamp: mitigating capture in environmental regulatory systems’, Policy Quarterly, 21, 1, pp.21-32.

Ekins, R. (2010) ‘The Regulatory Responsibility Bill and the Constitution’, Policy Quarterly, 6, 2, pp.9-13.

Ekins, R. and C. Huang (2011) ‘Reckless Lawmaking and Regulatory Responsibility’, New Zealand Law Review, 3, pp.407-442.

France-Hudson, B. (2024) ‘Property rights versus environment? A critique of the coalition government’s approach to the reform of the Resource Management Act’, Policy Quarterly, 20, 4, pp.35-43.

Geddis, A. (2025) ‘Brief of Evidence of Professor Andrew Geddis’, Before the Waitangi Tribunal, WAI 3300, WAI 3440, 7 May. https://www.waitangitribunal.govt.nz/en/inquiries/urgent-inquiries/regulatory-standards-bill-2?start=100

Jones, C. (2025) ‘Brief of Evidence of Dr Carwyn Jones’, Before the Waitangi Tribunal, WAI 3300, WAI 3440, 7 Haratua. https://www.waitangitribunal.govt.nz/en/inquiries/urgent-inquiries/regulatory-standards-bill-2?start=110

Judge, R. and S. Elahi (2024) Regulating for Resilience, London: National Preparedness Commission.

Kudrna, D. (2025) ‘Regulatory stewardship: an empirical view’, Policy Quarterly, 21, 1, pp.12-20.

Ministry for Regulation (2024a) ‘Have your say on the proposed Regulatory Standards Bill’, Wellington.

Ministry for Regulation (2024b) ‘Interim Regulatory Impact Statement: Legislating to improve transparency of the quality of regulation’, Wellington.

Minister for Regulation (2025) ‘Information Release Policy Approvals for Progressing a Regulatory Standards Bill’, May, https://www.regulation.govt.nz/assets/Publication-Documents/Information-Release-Policy-Approvals-for-Progressing-a-Regulatory-Standards-Bill-May-2025_v4.pdf

Ministry for Regulation (2025) ‘Regulatory Impact Statement: Proposed Regulatory Standards Bill’, Wellington, 26 March.

Palmer, G. (2010) ‘A view of the legal debate’, Policy Quarterly, 6, 2, pp.33-35.

Post, S. (2016) ‘One Law for All: Reconciling Indigenous Rights and the Right to Equality Before the Law’, Auckland University Law Review, 22, pp.42-68.

Regulatory Standards Bill (2025).

Rishworth, P. (2010) ‘A second Bill of Rights for New Zealand?’ Policy Quarterly, 6, 2, pp.3-8.

TamakiLegal (2025) ‘Legal Submissions for Toitū te Tiriti (WAI3440)’, 12 May.

Tanner, G. (2010) ‘How does the proposed Regulatory Responsibility bill measure up against the principles? Changing the role of Parliament and the courts?’ Policy Quarterly, 6, 2, pp.21-32.

Waitangi Tribunal (2025) ‘Interim Regulatory Standards Bill Urgent Report, Pre-Publication Version,’ Wellington, 16 May.

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[1] See especially, Geoff Bertram, ‘Deregulatory irresponsibility: Takings, Transfers and Transcendental Institutionalism’ https://ojs.victoria.ac.nz/pq/article/view/4336/3838; Geoff is an economist and a Visiting Scholar at VUW; Richard Ekins, ‘The Regulatory Responsibility Bill and the Constitution’ (see: https://ojs.victoria.ac.nz/pq/article/view/4333/3835); Richard Ekins is now Professor of Law and Constitutional Government at the University of Oxford; Paul Rishworth, ‘A second Bill of Rights for New Zealand?’ (see: https://ojs.victoria.ac.nz/pq/article/view/4330); Paul is a Professor of Law at the University of Auckland; George Tanner, ‘How does the proposed Regulatory Responsibility bill measure up against the principles? Changing the role of Parliament and the courts?’ (see: https://ojs.victoria.ac.nz/pq/article/view/4327 ); George Tanner served for many years as the Chief Parliamentary Counsel in New Zealand.

[2] https://www.mbie.govt.nz/cross-government-functions/regulatory-stewardship/regulatory-systems-amendmentbills#:~:text=Regulatory%20Systems%20Amendment%20Bills%20(RSABs,align%20with%20best%20regulatory%20practice.

[3] For detailed analyses of the issues surrounding compensation for property losses associated with the impacts of climate change and possible policy responses, see the various reports of the Environmental Defence Society as part of its project on climate change adaptation (see: https://eds.org.nz/our-work/policy/projects/climate-change-adaptation/), and the Report of the Expert Working Group on Managed Retreat (see: https://environment.govt.nz/publications/report-of-the-expert-working-group-on-managed-retreat-a-proposed-system-for-te-hekenga-rauora/).

[4] See: https://www.treasury.govt.nz/information-and-services/state-sector-leadership/guidance/reporting-financial/discount-rates