Will the Regulatory Standards Act be a one year wonder?

All parties but ACT are considering campaigning to repeal it at the next election

It’s hard to write about the Regulatory Standards Act (RSA) at the moment, as landscape seems to be changing on the daily. It passed the third reading on 13^th November and was given Royal Assent on 18^th November, meaning it is now formally law. This is despite 98.7% of the 159,000 submissions to the select committee opposing it. Labour, the Greens and Te Pāti Māori declared that they would repeal it when next in office.

More surprisingly, the week after voting to pass it, and his party expressing their support for it – albeit with brief and muted speeches – Winston Peters announced that New Zealand First would campaign on repealing it at the next election. Their opposition to its content was not unforeseen, as the RSA values are in stark contrast to New Zealand First’s, at least stated, values.

As I have outlined previously in the Spinoff, many of New Zealand First’s policies would be assessed as “inconsistent” with the principles now enshrined in the RSA as the gold standard of “responsible regulation”. A government would therefore be required to publicly justify passing “irresponsible” laws, if implementing many of New Zealand First’s policies.

However, to declare it “not fit for a modern democracy” merely days after voting it into law, seems to be more aligned to tactics seen recently in other parts of the world. ACT Party leader and Minister for Regulation, David Seymour, was quick to jibe that New Zealand First seemed to be preparing to go with Labour at the next election.

But what the…?

Peters’ approach was largely shrugged off as typical of Winston Peters’ politicking. But no doubt the repeal would be welcomed by a significant proportion of New Zealand First’s voters.

Hypothesising about the reasons for this about-turn, Martyn Bradbury noted on Radio Waatea that New Zealand First’s supporter base had been active on social media the weekend following the third reading, voicing their disbelief and disappointment that New Zealand First had voted to pass the RSB into law.

Possibly the recently articulated intention to repeal it was an actual change in policy based on seeing that discussion, as previously New Zealand First had only signalled that they would campaign on amendments to the RSA at the next election.

However, people had already been vocal about the likely repercussions for issues New Zealand First voters care about, such as deregulating the use of glyphosate and other toxins, rest-home safety and support to the elderly, nationalising electricity production, and the power given to big corporates, such as pharmaceutical and grocery companies. So the strong opposition to the Bill from New Zealand First voters should not have caught them unawares.

Possibly the party didn’t receive much feedback on their soft announcement at the New Zealand First Convention in September, that they had compromised and would be voting for the RSB to strengthen the perception that they are a stable coalition partner. At the time, Shane Jones quoted Winston Peters quoting Shakespeare, “It’s like Shakespeare said, to do a great right, sometimes you have to do a little wrong.”

A cynical view might be that this had been their back-up plan all along. Agree to it in the coalition agreement in order to form government. Try and negotiate amendments to the Bill, which after all, had not yet been drafted at the time of coalition negotiations. And if they didn’t achieve all their desired amendments or prevent it passing, to then campaign to repeal it.

Dropped ball in coalition negotiations?

Alternatively, perhaps they erred in coalition negotiations and didn’t realise quite what they were signing up to. However, Peters has been around long enough to see the previous three iterations that have been introduced to Parliament since 2006, so should have been well aware of its content. Did they simply overestimate the leverage they would have on this around the Cabinet table, and underestimate ACT’s determination to pass it?

The scenario of dropping the ball in coalition negotiations looks more plausible with National’s surprise move this week. It was noticeable that National downplayed Peters’ deciding to campaign to repeal the RSA.

A curveball from National

Maybe this was because they were quietly considering the same thing. In an unexpected turn of events, Nicola Willis stated yesterday to Newstalk ZB, that National also hasn’t ruled out repealing it.

Willis was quoted in the Herald as saying, “We haven’t ruled out repealing it either. We haven’t taken a position yet, but it’s not impossible that we would go to the campaign trail saying, ‘yes, we met our coalition commitment, we supported that into law, but actually we agree with the concerns of some people, it hasn’t operated as we’d hoped and we want to repeal it’.

“We haven’t come to a position yet, but we haven’t ruled it out.”

I haven’t yet seen a response from David Seymour to Willis’ statements. Will he proffer that National is also preparing to go into coalition with Labour? The idea of a National, Labour and New Zealand First coalition makes the mind boggle.

Or might Seymour be starting to get a bit anxious, given that the successful culmination of a 20-year attempt to achieve an even longer-standing neoliberal goal in New Zealand, might only be a one year wonder?

Riding the wave of public opinion

Perhaps National and New Zealand First have both seen the writing on the wall. The Regulatory Standards Bill (RSB) received the second largest number of submissions ever. Contrary to Seymour’s attempts to dismiss the 23,000 submissions on the departmental consultation document as being done by bots, and the 159,000 submissions as simple form submissions, which the select committee evidence does not bear out.

The vast majority of expert oral submissions to the select committee also opposed the RSB – coherent and logical arguments from a very broad range of highly regarded individuals, groups and organisations.

For National and New Zealand First to pass a bill which is opposed by 98.7% of submitters, and which makes their own policies less likely to succeed in future, did seem like an act of great political naivety.

If voters experience amnesia, and forget that New Zealand First enabled the RSB to pass, then their tactic for the election may well draw votes away from National, while also giving Labour less of an edge campaigning to repeal what was perhaps the most unpopular bill ever.

If National also campaigns to repeal the RSA, that could be a clever move on their part – potentially neutralising the advantage Labour, the Greens, Te Pāti Māori and New Zealand First would gain by promoting such a popular policy.

A strategic move from Labour

Another twist in the plot came as Labour MP Duncan Webb lodged a member’s bill to repeal the RSA last week. He invited New Zealand First to support that bill. While there is only a small chance that it will be drawn this term, its main effect may be to call Peters’ bluff.

Peters has said that they would not vote for it before the election, and National is likely to take a similar stance, both prioritising the stability of the coalition government.

It is possible that other parties or MPs will add further private member’s bills to the biscuit tin, seeking to repeal the RSA. This would increase the chances of one of them being drawn within the next year, and enable the ground to be tested. It is hard to see voters keeping faith in Peters should he vote to retain the RSA in the months before the election, while campaigning to repeal it.

A win for democracy?

Regardless of the next steps taken by the various political parties, a couple of things are clear.

Firstly that New Zealanders’ voices have been heard.

While many rightly felt demoralised by the RSA being passed by the coalition government, despite less than 1% of submissions supporting it, the numbers and the strength of the many arguments against the bill appear to have hit home.

When asked what the point of submitting was, when the government was likely to pass it anyway, some of those encouraging submissions against the RSB responded that the submissions would help strengthen opposition parties in choosing to repeal it when next in power.

It seems that both the quality and quantity of submissions may have achieved more than had been anticipated, and encouraged two of the government parties to also consider repealing it. People should take heart from those recent statements, and know that expressing their views can have unexpected flow-on effects down the line, even when something seems like a lost cause. Democratic participation still matters in New Zealand.

Secondly, it appears that a law designed to exercise soft-power to constrain the focus and powers of government and to push it towards acting within a libertarian and neoliberal set of boundaries, may only have had the genuine support of one minor party. While parts of National may support it, and others tolerate it, their stance appears to be malleable if supporting it will cost them votes.

159,000 submissions represent a lot of politically active voters, and many were from the heartland where National and New Zealand First draw both voters. There may be significant downstream effects for both parties.

Politicians’ promises are also not set in stone. Though a pre-election commitment to repeal it by National and New Zealand First might be made, if it was to exclude them from power via a potential coalition agreement with ACT at the next election, such a promise might quickly get chucked out the window following the election.

No doubt both National and New Zealand First will come under pressure from lobbyists to allow the RSA to remain in force. If the wider public, small businesses, and other organisations also keep up their communications about their dislike of the RSA with MPs – including those in the current government – the next election will be interesting indeed.