Will the Regulatory Standards Bill Silence te Tiriti?
Unpacking the Proposed RSB's Impacts on te Tiriti and Māori Rights
Agency consultation on the proposed components of the Regulatory Standards Bill (RSB) quietly opened on the same day the hīkoi arrived at Parliament. Beneath its bureaucratic blandness, it threatens radical reforms that could entrench the very injustices the historical hīkoi sought to challenge.
While much attention has quite rightly focused on the coalition government’s Principles of the Treaty of Waitangi Bill (TPB), the RSB poses equally profound risks. It stands to achieve very similar outcomes: removing the influence of te Tiriti o Waitangi and its common law principles from our legal framework.
The RSB could also do much more than that. Dubbed the “Everything Bill” by Emeritus Professor Jonathan Boston, it would fundamentally reshape New Zealand’s laws, regulatory systems, and government policies to align with ACT Party ideals.
Another prominent expert, Emeritus Professor Jane Kelsey, has described the proposed RSB as creating a “legal straitjacket” for governments, constraining them to act within a rigid framework of libertarian principles centred on individual liberties, property rights, and minimal government intervention.
“The proposed legislation certainly has a constitutional dimension to it in the sense that it’s fundamentally about the role of the state and the use of public power… a core aspect of constitutional arrangements is around your design of your public institutions and then the powers that those institutions have and the constraints within which they must operate.”
Kelsey also discusses the difficulty of drawing attention to the profoundly important RSB, saying,
“Part of the attraction of this form of economic constitutionalism is that it is institutionalised. So it occurs within the body and practices and processes of government, rather than through the more visible parliamentary processes. And who is really interested in that? And so if we contrast the responses there have been to the Fast Track legislation, to the Treaty principles bill, to the section 7aa reforms, and so on, in a way you could see them as the high profile diversions. Not to downplay any of them, but the more systemic things that are going on, no one is generally interested anyway, but everyone's energies are taken up with those other matters.”
What Is ‘Regulation’ in This Context?
The Ministry for Regulation’s discussion document (download link here) on the proposed RSB defines ‘regulation’ broadly:
“This discussion document uses ʻregulationʼ to encompass any government intervention that is intended to direct or influence people’s behaviour, or how they interact with each other. ʻRegulationʼ therefore includes, but is not limited to, legislation.”
Regulation also includes ‘regulatory systems’ which the discussion document defines in this way:
“Regulatory systems comprise a set of rules, organisations, and activities that share a common policy objective (e.g., health and safety). Regulatory systems are not limited to primary and secondary legislation but include a range of activities, including the delivery of services, education, monitoring and enforcement, and dispute resolution. The Government is responsible for around 180–200 regulatory systems.”
This broad scope means the RSB would apply not only to legislation and regulation, but also to regulatory systems and potentially any government intervention, even those delivered by third parties.
Two Sides of the Same Coin: Treaty Principles and Regulatory Standards Bills
The RSB and TPB can be seen as two sides of the same coin.
The TPB is overtly focused on redefining the principles and articles of te Tiriti o Waitangi, aiming to diminish or remove its legal influence. Yet it could covertly embed libertarian rights at the constitutional level.
The RSB, in contrast, overtly seeks to establish a regulatory constitutional framework of libertarian rights. However, it could covertly remove the legal and political influence of te Tiriti - both by its omission of te Tiriti and the common law Treaty principles, and also by imposing a supreme set of values that conflict with te Tiriti and would sit over all legislation and regulation. Either one of these is highly problematic for te Tiriti.
The TPB primarily targets legislative interpretation, but, if passed, it would also influence how laws are developed under current legislation development guidelines. Meanwhile, the RSB focuses on the content and creation of legislation but would likely also have a significant impact on its interpretation.
Kelsey describes the RSB as the final piece of the neoliberal jigsaw puzzle, completing the reforms of the 1980s. She characterises it as ‘economic constitutionalism’ or ‘regulatory constitutionalism,’ introducing ‘meta-regulation’ that governs regulators themselves.
In her submission on the proposed RSB, Kelsey writes:
“Even if ACT’s Treaty Principles Bill does not become law, this legislation would de facto have the same effect. Te Tiriti would be removed from the list of considerations that inform regulation, including legislation, aside from Treaty settlements. In other words, a significant part of ACT’s Treaty Principles Bill would become operative and constitute new breaches of Tiriti principles that the Waitangi Tribunal has identified.”
A Narrow Set of Libertarian Principles
The government is proposing a narrow set of principles for the RSB (currently open for consultation) centred on individual (and consequently corporation) rights, property rights, fair compensation if regulation impairs property rights, reducing government and a restrictive interpretation of the rule of law.
Future legislation and regulation, as well as most existing laws and regulation, would be assessed for consistency with these principles. Any inconsistency would require ministers to publicly justify their departure from them. The Regulatory Standards Bill 2021 allowed for a 10 year delay before the RSB would apply to existing legislation – it is unclear whether a similar delay is part of the current proposal or if it is intended to have immediate effect.
In his submission, Boston critiques the RSB’s proposed principles for omitting key considerations vital to good lawmaking. These include:
The principles of te Tiriti o Waitangi
Distributive justice
Environmental sustainability
The rights of future generations
The precautionary principle
Compliance with international law.
However, simply adding in these values would not resolve the fundamental concerns with the proposed Regulatory Standards Bill. Anyone who cares about an equitable, sustainable and democratic future for Aotearoa needs to oppose this Bill at every step, not just seek amendments to it.
Profound Impacts on te Tiriti o Waitangi
Preliminary advice (available here) on the Regulatory Standards Bill has been provided by the Ministry for Regulation, David Seymour’s newly established ministry. The advice notes:
“Of significance is that the proposals do not include a principle related to the Treaty/te Tiriti and its role as part of good law-making, meaning that the Bill is effectively silent about how the Crown will meet its duties under the Treaty/te Tiriti in this space.”
The proposed RSB marks a stark departure from current legislative processes, where consistency with te Tiriti o Waitangi and its common law principles is foundational. The Legislation Guidelines, overseen by the Legislation Design and Advisory Committee (LDAC), mandate that te Tiriti and other considerations, such as equity considerations, the New Zealand Bill of Rights, environmental sustainability, and international obligations are integral to lawmaking.
By contrast, the RSB’s principles exclude these factors entirely.
“Of course, there is very little recognition in the proposed Regulatory Standards Bill of our founding document, te Tiriti o Waitangi, or the Treaty of Waitangi. And that is deliberate, because again, the drafters of this sort of legislation, are not interested in protecting the provisions and principles of te Tiriti, and accordingly, there is a risk that this legislation, if enacted alongside particularly the Principles of the Treaty of Waitangi Bill, would have a detrimental effect on any capacity for iwi or hapū to secure new or additional rights, or indeed to be able to ensure that the rights they're entitled to under the Treaty are properly recognised and given effect to.”
Treaty rights, which are collective and holistic, clash fundamentally with the RSB’s focus on individual liberties and self-determination, property rights and formal equality before the law (sound familiar?).
This creates a high risk that te Tiriti, the Treaty principles, Indigenous rights, and affirmative action measures will be excluded from legislation, regulation and government processes. However, the answer is not simply to add te Tiriti in to the proposed RSB as a principle - the result would still be a highly problematic neoliberal framework which would hinder just outcomes and genuine recognition of te Tiriti.
Power to the Regulatory Standards Board and Minister for Regulation
The RSB proposes establishing a Regulatory Standards Board to assess legislation and regulation for consistency with its principles. Any person—or corporation—could file a complaint that legislation or regulation is inconsistent with one or more of the RSB principles. The board could also initiate reviews independently or at the behest of the Minister.
While its recommendations would not be binding, they would likely carry significant political weight as well as substantial time and financial costs of reviewing and defending actions. This would likely deter government from routinely acting outside the RSB principles.
As I wrote in E-Tangata, regarding the proposed right of individuals or corporations to make complaints about inconsistency with one or more of the RSB principles:
“That might mean complaints about laws that recognise collective Māori rights, on the basis that they are inconsistent with individualistic rights and equality before the law. Or complaints about environmental protections, on the basis that they are inconsistent with unrestricted property rights. Or complaints about social safeguards, on the basis they are inconsistent with equality before the law and the principles on imposition of taxes and levies.”
“To enshrine limited principles that fundamentally seek to limit the ability to make law affecting existing property interests and individual liberty – and be silent on wider human rights, equity issues and Te Tiriti is simply dangerous and would lead to those principles being given primacy.”
Webb further discussed the powers the proposed RSB would give to the Minister for Regulation, saying it would make Seymour the rule Czar, writing:
“It comes as no surprise that the detail of what is meant by the standards of good regulatory practice, and how legislation would be required to meet those standards would be set by the Minister for Regulation – David Seymour. This would give him considerable power to influence the nature of legislation at every level. He would effectively be giving himself the position of the overseer of lawmaking at every level.”
Potential Impacts on Treaty Settlements
While the RSB proposes to exclude Treaty settlement legislation from its scope, broader implications may remain. Historic settlements were negotiated based on the laws and regulatory systems that existed at the time of negotiation.
It is unclear whether many, if any, Treaty settlements fully future-proofed against extreme reforms of the entire legal system, such as those contemplated by the proposed RSB. Therefore, some mechanisms may be in jeopardy if their stipulated processes and laws are no longer in effect, or if arrangements relied to some degree on goodwill rather than legalese.
The details of historic Treaty settlements vary, and the specific clauses included in each may leave different iwi in different situations. The future relationship with the Crown may depend on how much detail is definitively tied down within the settlement legislation about mechanisms such as consultation, co-governance, co-management, joint decision-making, and the nature of the relationship with the Crown going forward.
Moreover, in negotiating settlements, iwi may have reasonably assumed that equity-focused government policies and the recognition of te Tiriti in a wide range of statues would continue strengthening. The RSB’s principles are unlikely to support such approaches, potentially worsening disparities.
Systematic Review of Existing Legislation
The proposed RSB would require a systematic review of existing legislation and regulation to bring it into alignment with its principles. A likely approach to this is sector-wide reforms through omnibus bills, rapidly transforming New Zealand’s statute books to be consistent with libertarian ideals.
Hypothetical examples of potential change include:
Environment: Climate and environmental protections may be inconsistent with the principles of property and individual rights, exposing the government to costly compensation claims under the takings clause if corporate interests are limited (impaired) by regulation. The voices of whānau, hapū and iwi, as well as local communities, could be sidelined.
Conservation: The takings principle could force government to compensate corporations for impaired property rights, such as mining licenses or commercial interests, if legislation or regulation restricts them. The role of local kaitiaki may be diminished or eliminated, with Jane Kelsey warning that the Fast Track criteria could become standard for all applications if the RSB is enacted.
Representation: The principle of formal equality before the law could preclude specific representation for Māori on governance, projects or advisory groups, when not part of Treaty settlements. Even the Māori seats in Parliament, could be seen as inconsistent with that principle.
Health: Equity-focused funding decisions could face challenges for prioritising public over property interests and formal equality.
Working conditions: Minimum wage, health and safety and working conditions are all governed by legislation and regulation, and the massive deregulation that is likely to flow from the RSB could impact these significantly. It has been argued that these impair property rights (business), and under the RSB that interest would be given primacy over the pubic interest or social wellbeing.
Retrospective Effect on Meaning of Existing Legislation?
The Regulatory Standards Bill 2021, which the RSB 2025 is to be based on, included a clause which provided 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.”
The Ministry for Regulation’s discussion document, which proposes changes to the RSB 2021, is silent on this matter. It should therefore be assumed that this clause may remain under consideration for inclusion.
If included, this clause could have the effect of retrospectively changing the meaning of many laws in ways that differ from what was intended by Parliament at the time.
It would also have implications for the interpretation of the TPB, if it is passed, potentially giving preference to the libertarian definitions possible for its key terms over the common-usage meanings.
Constitutional Collisions Ahead?
Should only the Regulatory Standards Bill be 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 is at odds with the collective and holistic rights enshrined in te Tiriti and its common law principles. It is also at odds with equity, affirmative action and environmental protection.
These conflicts may explain efforts to redefine the Treaty principles in legislation, to make them align with the RSB’s libertarian values.
The proposed RSB also excludes numerous legal principles and societal values which are fundamental to our legal system and government activity.
Previous attempts to pass the RSB have also seen it criticised for creating a second Bill of Rights for New Zealand, with some overlapping, and some significantly different, rights.
What Stage is the Regulatory Standards Bill At?
The ACT-National coalition agreement provides that the government will:
“Legislate to improve the quality of regulation, ensuring that regulatory decisions are based on principles of good law-making and economic efficiency, by passing the Regulatory Standards Act as soon as practicable.”
Consultation on the proposed contents of the RSB is currently open, and closes on 13 January. The Minister has directed that the 2025 RSB be based on the Regulatory Standards Bill 2021, with changes proposed in the discussion document published by the Ministry for Regulation.
Consultation is a process which has legally defined parameters, and given the huge significance of the proposal, it is unclear whether the requirements of sufficient information and sufficient time have been met. A genuinely open mind is also required in a consultation process.
There is a online portal for consultation engagement which includes the option to complete a form of questions, which may appeal to some people. Alternatively, your own submission can also be emailed directly to RSBconsultation@regulation.govt.nz.
Submissions on this consultation have the opportunity to influence the shape and detail of the Bill, which is yet to be finalised. The Bill will then be drafted and introduced to Parliament.
Act Now to Oppose this Critical Turning Point
The proposed RSB represents a critical turning point for Aotearoa New Zealand. Beneath its unassuming exterior lies a proposal that could substantially weaken the role of te Tiriti o Waitangi in our legal system.
By imposing a rigid, libertarian framework that prioritises individual property rights over collective responsibilities and equity, the RSB threatens to undermine the values that underpin our shared social and legal fabric.
For Māori, the stakes are particularly high. The proposed RSB signals an alarming departure from the Crown’s obligations under te Tiriti, creating a legal landscape that may further marginalise iwi, hapū, and whānau. The impacts could ripple across all areas of life, including conservation, environmental protection, health, equity, and representation.
This is not just a policy debate; it is a fight for the recognition of Māori rights and the protection of te Tiriti in all aspects of governance.
The time to act is now. If te Tiriti o Waitangi is silenced in legislation, its absence will have profound and unimaginable flow-on effects. Let us stand together to oppose the Regulatory Standards Bill to ensure that does not happen.
Further Information
I have worked with a group of concerned people to write an Explainer and Submission Guide for the Regulatory Standards Bill, which may be helpful to some individuals or organisations wishing to make a submission. It offers various approaches and levels of submissions that could be valuable, including transferring submissions on the Treaty Principles Bill.
A link tree has been created to serve as a central hub of information about the Regulatory Standards Bill (RSB). It contains a wide range of resources, including articles, videos, detailed papers, podcast interviews, and public submissions.
Additionally, the link tree provides links to Hansard records from previous attempts to introduce the RSB, a special edition of Policy Quarterly dedicated to the RSB, and Bryce Wilkinson’s foundational paper, originally published by the Business Roundtable, which drafted the initial version of this legislation.
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