Melanie Nelson's Submission on the Proposed Regulatory Standards Bill

Submission deadline is 11.59pm tonight, Monday 13 January.

See my post yesterday if you need further support to make your submission on this extremely important proposal. It is so encouraging to see so many people discussing this proposal and making submissions.

Feel free to draw on any of these thoughts for your own submission - I would have liked to write more but time is not allowing!

To: RSBconsultation@regulation.govt.nz

Submission on the Proposed Regulatory Standards Bill

Tēnā koutou,

My name is Melanie Nelson, and I am a researcher, writer, analyst and consultant. I am writing to strongly oppose the proposed contents of the Regulatory Standards Bill (RSB) and to raise significant concerns about its principles, scope, and likely consequences for Aotearoa New Zealand.

Overview of Concerns

The proposed RSB represents a profound constitutional shift. Framed as a technical adjustment to improve regulatory quality, it is, in fact, an ideological blueprint to entrench right-wing libertarian ideological values and neoliberal economic ideals that prioritise property rights and individual liberties over collective wellbeing, environmental protection, and te Tiriti obligations.

It is critical to recognise the historical context and intent behind this Bill. Originally conceived by the Business Roundtable (now the New Zealand Initiative) as part of a broader neoliberal agenda, the RSB seeks to constrain regulation (including laws, regulation, regulatory systems and government interventions) in ways that could irreparably harm New Zealand’s social, economic, and environmental fabric.

This submission outlines several key areas of concern, including the Bill’s proposed principles, the absence of te Tiriti o Waitangi considerations and conflict with te Tiriti, the disproportionate power it grants to corporations, and the broader implications for democracy and equity.

1. Flawed and Ideologically Driven Principles

The principles proposed for the RSB are rooted in libertarian ideology, favouring property rights and individual freedoms at the expense of collective responsibilities and societal needs. These principles do not reflect the values of fairness, equity, and sustainability that underpin New Zealand’s identity.

For example:

• Equality before the law: While this may sound fair in principle, it effectively entrenches existing inequalities. Affirmative action, equity-based policies, and protections for vulnerable groups could be undermined under this framework.

• Property rights prioritisation: The emphasis on property rights and compensation for regulatory “takings” could lead to significant financial liabilities for taxpayers. This would discourage necessary environmental protections and social policies.

• Restrictions on government intervention: The Bill’s limitations on administrative discretion would make it harder for future governments to respond to emerging challenges such as climate change, housing insecurity, and public health crises and respond to the broader public's expectations.

These principles do not represent good regulation or broadly held values. Rather, they reflect a narrow, ideological perspective that prioritises private interests over public good.

2. Silence on Te Tiriti o Waitangi

The proposed RSB completely ignores te Tiriti o Waitangi and its principles, despite its status as New Zealand’s founding document. Current legislative guidelines (through the Legislation Guidelines of the Legislation Design and Advisory Committee) require consideration of te Tiriti, yet the RSB would displace this cornerstone of lawmaking and regulatory systems.

This would:

• Undermine te Tiriti-based protections and responsibilities, including kaitiakitanga and tino rangatiratanga.

• Marginalise the Indigenous rights of iwi and hapu and diminish their ability to protect lands, waters and other taonga from exploitation.

• Further entrench systemic inequities by prioritising individual and corporate rights over collective rights and responsibilities and the public good.

Even if the Principles of the Treaty of Waitangi Bill does not pass, the RSB could achieve similar outcomes by default, embedding a framework that disregards te Tiriti in lawmaking and government interventions.

3. Creation of a Regulatory Standards Board

The proposed Regulatory Standards Board (RSB) raises significant concerns about transparency, accountability, and democratic oversight. This unelected body would:

• Enable corporations and individuals to challenge laws and regulations based on the Bill’s libertarian principles.

• Issue non-binding recommendations that could still carry significant political weight, pressuring governments to conform to its ideological framework.

• Disproportionately amplify the voices of corporations and wealthy interests, who have the resources to file complaints and whose interests are served by the proposed principles.

The establishment of this Board mirrors dispute resolution mechanisms in free trade agreements, which New Zealand has rejected due to their anti-democratic nature. It is unacceptable to impose such a system domestically.

The proposed RSB places too much power with the Minister for Regulation, and too much political influence with the Regulatory Standards Board.

4. Impact on Environmental Protections and Public Health

The RSB’s principles would severely constrain the government’s ability to introduce and enforce regulations that protect the environment and public health. For instance:

• Climate change initiatives, such as restrictions on development in flood zones, could be challenged as infringements on property rights.

• Environmental safeguards, including pollution controls and conservation efforts, would face significant hurdles due to compensation requirements for affected businesses.

• Public health measures, such as tobacco control or workplace safety regulations, could be weakened or delayed by corporate challenges.

The result would be a dangerous rollback of progress in areas critical to New Zealanders’ wellbeing and future resilience.

5. Constitutional Changes Require Broad Support

Constitutional changes of this magnitude should not be enacted through a simple majority or a coalition agreement. Such reforms should only be passed by a super-majority in Parliament and with broad bipartisan support to ensure they reflect the will of the people and maintain democratic legitimacy.

The proposed RSB seeks to fundamentally alter how New Zealand creates and interprets its laws. These changes are too significant to be pushed through without meaningful debate, thorough understanding and widespread political consensus. Anything less risks undermining trust in our democratic institutions.

6. Opposing the Interpretation Clause

The RSB 2021 included a clause that would require courts to interpret all existing and future legislation, wherever possible, in alignment with its principles.

"Clause 10 provides that wherever an enactment can be given a meaning that is compatible with the principles (after taking account of the qualification in clause 6(2) relating to what is reasonable and can be demonstrably justified in a free and democratic society), that meaning is to be preferred to any other meaning. This clause will apply to legislation made before the date on which the Bill comes into force only after the tenth anniversary of that date."

This provision is deeply concerning and poses significant risks:

• Overriding Parliamentary Intent: This clause would retroactively alter the meaning of existing legislation, potentially overriding the intent of Parliament at the time the laws were enacted.

• Overreach: It places a dangerous obligation on the judiciary to prioritise the RSB’s libertarian principles over broader legal considerations, including te Tiriti o Waitangi, human rights, and environmental protections.

• Legal Uncertainty: Reinterpreting laws to align with the RSB would create confusion and instability in the legal system, as businesses, communities, and individuals grapple with changing interpretations of long-standing legislation.

• Undermining Equity and Justice: By prioritising individual property rights and minimal government intervention, this clause would make it harder to achieve equitable and just outcomes for vulnerable groups, the environment, and collective societal interests.

This interpretation clause is an unacceptable intrusion into the legislative process, achieving retrospective effects, and impacting the independence of the judiciary. It would fundamentally distort New Zealand’s legal framework and should be removed in its entirety.

7. The Importance of Regulation

The RSB’s underlying intent to undertake significant deregulation poses significant threats to New Zealand’s social and economic stability. Regulation is not an obstacle to progress; it is a critical tool for ensuring fairness, safety, and sustainability. Deregulation under the RSB would:

• Weaken Public Protections: Essential safeguards, such as health and safety standards, environmental protections, and workers’ rights, could be dismantled, leaving communities and individuals vulnerable.

• Undermine Collective Wellbeing: Regulations ensure that powerful entities, such as corporations, operate within boundaries that protect the public and environment. Deregulation would disproportionately benefit the wealthy and powerful at the expense of everyday New Zealanders.

• Erode Trust in Institutions: By prioritising market-driven approaches, deregulation undermines public confidence in the government’s ability to protect and provide for its citizens.

Regulation is vital for addressing complex challenges such as climate change, housing affordability, and public health crises. A strong regulatory framework ensures that societal interests are balanced against private profits and that the most vulnerable are protected. The RSB’s push for deregulation ignores these realities and risks exacerbating inequalities and systemic failures.

8. Undermining Democracy and Equity

The RSB prioritises private interests over democratic processes and collective rights. By shifting power from elected representatives to the Minister for Regulation and the Regulatory Standards Board, it:

• Reduces public accountability and transparency in decision-making.

• Limits Parliament’s ability to balance competing interests, such as economic growth, environmental protection, and social equity.

• Undermines the guarantees of te Tiriti o Waitangi to hapū and rangatira, which are foundational to our democracy.

These shifts are anti-democratic and inconsistent with New Zealand’s values as a fair and just society.

9. Historical Context and Repeated Failures

This is not the first time the RSB has been proposed. Versions of this Bill have been rejected multiple times since 2006, with criticisms from Treasury, the Legislative Advisory Committee, and MPs from across the political spectrum. Their concerns remain valid today:

• The principles are ideological and do not reflect New Zealand values.

• The Bill prioritises private over public interests.

• It represents a dangerous constitutional shift that threatens parliamentary sovereignty.

Recommendations

The Regulatory Standards Bill is a deeply flawed proposal that would harm New Zealand’s democracy, equity, and environment. I urge the government to:

1. Abandon the RSB in its current form.

2. Strengthen existing regulatory systems, such as the Legislation Design and Advisory Committee Manual, rather than introducing harmful new frameworks.

3. Ensure that any future reforms uphold te Tiriti o Waitangi, promote equity, and prioritise collective wellbeing over narrow private interests.

4. Ensure that any constitutional Bill be passed only by a super-majority in Parliament and with broad bipartisan support, not by a simple majority or through coalition agreements.

5. Remove the interpretation clause entirely, to preserve the integrity of existing legislation and prevent undue judicial distortion of parliamentary intent.

6. Retain and strengthen regulation as a critical tool for protecting public safety, equity, and the environment.

7. If the Bill does progress, do not include a binding public referendum (as the 2021 Bill did) and do not allow the Bill to be entrenched.

This Bill is not a technical adjustment; it is a constitutional pivot with far-reaching implications for all New Zealanders. I strongly oppose the proposed RSB and urge others to make their voices heard before it is too late.

Ngā mihi nui,

Melanie Nelson