The Overshadowed Bill Poised to Rewrite New Zealand’s Legal System

While Attention is Fixed on the Treaty Principles Bill, Another Bill Threatens Sweeping Change

Much has been said about the significant impacts of the Treaty Principles Bill (TPB) on te Tiriti and Māori rights. Far less is known about its unrecognised effects on all New Zealanders, which extend well beyond the Treaty.

Meanwhile, its long-standing companion, the Regulatory Standards Bill (RSB), is advancing quietly through government processes, with limited public awareness, minimal media coverage, and little parliamentary debate.

Consultation by the Ministry for Regulation on the proposed contents of the RSB opened on 19 November, the day the hīkoi arrived at Parliament, and ends the week after TPB submissions close. The final Bill will then be drafted and introduced to Parliament.

Individually and collectively, these Bills propose significant constitutional reforms with profound implications for New Zealand.

They could comprehensively change the nation’s legislative and political environment by embedding rigid legal frameworks that prioritise individual and property rights, constrain regulatory powers, and reduce the government’s ability to implement environmental protections, social safeguards, and Tiriti-based initiatives.

Restricting Legislative Freedom: A Legal Straitjacket in the Making?

The focus on the TPB risks overshadowing its dull but dangerous cousin, the RSB, which is currently open for consultation. The RSB is the brainchild of the Business Round Table (now the New Zealand Initiative) and has been attempted three times previously by the ACT Party.

Emeritus Professor Jane Kelsey, reflecting on previous attempts to pass the RSB, said that "if the Business Roundtable and ACT had their way, these directives and guidelines would have become a legal straitjacket.”[1]

They now look to do so, as the RSB is agreed to be passed under the ACT-National coalition agreement. It is well known that in coalition negotiations, ACT secured a select committee process for one constitutional Bill. However, they also secured the enactment of a second constitutional Bill entrenching their libertarian ideals and removing the place of te Tiriti in our lawmaking.

The Minister for Regulation has directed that the RSB to be drafted this year be based on the Regulatory Standards Bill 2021. That Bill retained much of its original structure from earlier proposals, but there have been some changes over the years.

The Ministry for Regulation has produced a discussion document which proposes potential revisions to the 2021 RSB, including adjustments to oversight mechanisms and compliance processes. The full text of the Bill to be introduced to Parliament next years remains undisclosed. This analysis is based on the 2021 Bill and the recently released discussion document.

The proposed RSB would require that new legislation and regulation—and most existing legislation within 10 years—should adhere to a specific set of libertarian principles. These include selected elements of the rule of law, equality before the law, individual freedoms, property rights, restrictions on government, and constraints on taxes and charges.[2]

The Regulatory Standards Bill 2021 proposed giving courts a new role in reviewing and declaring legislation inconsistent with its principles. While the Bill did not enable courts to strike down legislation, they could make declarations and order costs.

The discussion document on the currently proposed RSB notes that giving this role to the courts has been removed and that instead, a new Regulatory Standards Board would be the recourse mechanism for legislation inconsistent with the principles.

The Board would assess complaints from the public or organisations, evaluate whether legislation aligns with the prescribed principles, and issue non-binding recommendations. While its findings would not have direct legal force, they could carry significant political weight by compelling Ministers to respond publicly and justify their actions. Anyone could take a complaint to the Board that existing legislation or regulation is inconsistent with one or more of the RSB principles.

The Board could recommend further investigation by the responsible agency and suggest measures for addressing the inconsistency. The responsible Minister would be required to respond, providing reasons for any decision not to act on the Board's findings.

The political, financial, and time costs for a government legislating inconsistently with the proposed constitutional principles could be very high, including potential political backlash, legal challenges, administrative delays, and strained inter-agency coordination.

While Parliament could override these principles, the political, procedural, and financial hurdles would likely deter future governments from deviating significantly from the RSB’s ideological framework.

The RSB 2021 also mandated that all laws be interpreted according to its principles wherever possible, requiring the courts to prioritise individual and property rights over broader liberal, collective, environmental, Indigenous, and equitable rights across our laws. The current discussion document notes that this clause has been removed. However, it was still considered as part of the options in the Regulatory Impact Statement by the Ministry for Regulation.

As described here, the RSB’s principles are very similar to the distinctive libertarian interpretations of the terms contained in the TPB. The enactment of the RSB could give further weight to the libertarian meanings of the TPB’s ambiguous concepts, which differ profoundly from common usage understandings.

The combined impact of the TPB and the RSB is profound. Together, they could embed ACT’s ideological worldview at the heart of New Zealand’s constitutional framework, limiting legislative flexibility, executive decision-making, and judicial interpretation.

Meta-Regulation: A Long-Term Strategy Takes Shape

The Regulatory Responsibility Bill, conceived by the Business Roundtable (now the New Zealand Initiative), originated from their 1990s advocacy for an “economic constitution.” Their 2001 report, Constraining Government Regulation, included a draft Bill. Emeritus Professor Jane Kelsey describes the Bill as “meta-regulation,” intended to govern how legislation is created.[3]

ACT adopted the Bill, and in 2006 it was drawn from the ballot. This is the same year ACT introduced its initial Treaty Principles Bill. The Regulatory Responsibility Bill was blocked by Labour, then subsequently revived in 2009 by ACT leader Rodney Hide through a Regulatory Responsibility Taskforce.

Reintroduced as the Regulatory Standards Bill in 2011, it failed to pass amid opposition from the Legislative Advisory Committee, Treasury, and others, who criticised its focus on property rights over other values, expanded judicial roles, and constitutional rights in conflict with the New Zealand Bill of Rights.

Despite National's support, David Seymour’s 2021 reintroduction of the Bill ultimately failed. MPs condemned it as “a dangerous constitutional shift,” undermining public and collective rights and threatening parliamentary sovereignty. They highlighted its "political choices” enshrining ACT’s values in place of alternative principles such as te Tiriti o Waitangi, international obligations, community well-being, or climate and environmental protection.

Constitutional Collisions Ahead?

While distinct in focus, the two constitutional Bills intersect significantly. The Regulatory Standards Bill shapes how legislation and regulations are developed, potentially also influencing how they are interpreted in practice. Meanwhile, the Treaty Principles Bill centres on legislative interpretation, although existing guidelines set by the LDAC Manual refer to te Tiriti and its principles in developing legislation.

Individually or together, these Bills would entrench libertarian preferences in New Zealand’s constitutional framework. They would also obstruct the consideration of te Tiriti and its genuine principles in future lawmaking and interpretation.

If only the RSB were enacted, common law might still mandate consideration of the current Treaty principles in legislative interpretation unless explicitly excluded. This would create constitutional tensions, as the RSB’s individualistic, property-focused framework conflicts with the collective rights and interests of iwi and hapū upheld by te Tiriti and its common law principles.

This may have been one of the concerns that prompted efforts to redefine in legislation the Treaty principles and the interpretation of its articles, to make them parallel the libertarian rights in the RSB. The symbiotic effects of these two interrelated Bills are significant.

Binding Future Governments to a Libertarian Framework

These far-reaching implications remain largely unnoticed, as the less prominent Regulatory Standards Bill has yet to draw public attention. As a nation, we are submitting feedback on sweeping constitutional changes without fully grasping the impact of these extensive proposals on our lives and the country.

New Zealanders must ask themselves whether they want ACT’s libertarian values to shape the boundaries of legislation, government action, and judicial interpretation, even after ACT is no longer in power.

The Regulatory Standards Bill and the Treaty Principles Bill, individually or together, would fundamentally reshape New Zealand’s economic, social, environmental, and political landscapes.

Written submissions on the Treaty Principles Bill close on 7 January, with consultation on the proposed components of the Regulatory Standards Bill ending on 13 January. No special expertise is required to make a simple submission on either Bill.

No details have yet been announced about when the RSB will be introduced to Parliament or the potential select committee process. The current consultation process on the RSB is an opportunity to express your views on the proposals and to influence the detail and shape of the Bill before it is finalised and introduced to Parliament.

There is a complex submission form available at the Ministry for Regulation’s consultation portal, or if you prefer you can simply email your own submission to RSBconsultation@regulation.govt.nz

An explainer and submission guide on the RSB is available here and a wide range of additional resources are available here.

Both these deadlines offer critical opportunities to scrutinise and challenge the ideological foundations of these proposals before they transform the nation’s legal and political framework.

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[1] Kelsey, Jane. The Fire Economy. Chapter 5: The Neoliberal Regime.

[2] https://www.legislation.govt.nz/bill/member/2021/0027/latest/whole.html

[3] https://www.auckland.ac.nz/en/news/2024/01/15/act-s-quest-for-regulatory-reform.html