Source: Professor Emeritus Jane Kelsey
As some of the country’s senior lawyers and researchers in a range of disciplines (law, economics, Tiriti o Waitangi, public policy, environment), including a former Prime Minister and two New Zealanders of the Year, we cannot stand by as the Regulatory Standards Bill is rushed through a parliamentary select committee next week.
Each of us has written extensively and spoken out against this Bill from our respective areas of expertise. Many of us have done so for the three previous iterations of this Bill when it was promoted unsuccessfully by the Act Party and the Business Round Roundtable (later, the New Zealand Institute).
On each of those occasions Parliament has rejected the Bill as philosophically and legally unsound, profoundly undemocratic, and contrary to Te Tiriti o Waitangi.
This time the Act Party has sought to bypass rigorous parliamentary scrutiny by securing commitments from the National and New Zealand First parties to legislate the Bill into law. There was an opportunity for public submissions on the proposal late last year, where it secured the support of only 0.33% of the over 23,000 New Zealanders who expressed their views on the consultation document. It is evident that the advice in virtually all the submissions was ignored by the government.
The Bill could have profound constitutional consequences. It establishes a set of principles as a benchmark for good legislation/regulation, many of which are highly questionable and designed to establish a presumption in favour of a libertarian view of the role of the state – one that ceased to have any currency globally more than a century ago. Te Tiriti o Waitangi has been excluded altogether. The power vested in the Minister for Regulation and a ministerial-appointed board is not subject to the normal accountabilities of Crown entities, conferring significant yet largely unaccountable authority on the executive.
Dr Jim Salinger, 2024 New Zealander of the Year, further notes the chilling effect the Bill will have on any future policy on climate change and adaptation following the almost $4 billion cost of the 2023 Auckland Anniversary weekend floods and Cyclone Gabrielle, the highest in our history.
While there is a select committee review of the Bill, it is truncated and circumscribed.
The Coalition government has decided to submit the Bill to the Finance and Expenditure Committee rather than the Justice Committee, limiting the time to hear many tens of thousands of oral submissions to just 30 hours – at most 360 submissions – with 5 minutes per submitter, and truncating the period for those hearings and the committee’s report, further exposes the hypocrisy that this Bill is about good governance, better laws, improved regulation, greater transparency and enhanced governmental accountability. We are gravely concerned that the National Party and New Zealand First appear to be complicit in this undemocratic process.
We have each thought long and hard about whether to say we want to challenge this Bill before the select committee, lest it give some credibility to a process that is devoid of legitimacy. Some of us, such as Professor Dame Anne Salmond, 2013 New Zealander of the Year, and Professor Andrew Geddis, made written submissions, but feel there is no point in participating such a harmful process.
Professor Emeritus Jonathan Boston, Dr Geoffrey Bertram, Dr Bill Rosenberg and Dr Max Harris have indicated they want to address the committee to reinforce their submissions. In Professor Boston’s view: “The current Bill is destined to have a very short and ignominious life as an Act of Parliament: it enjoys virtually no public support; it lacks cross-party backing; it is opposed by the very Ministry that will be responsible for its implementation; and it endorses principles that have been found wanting by multiple generations of people throughout the world”.
In similar vein, long-standing academic critic of the Bill Professor Emeritus Jane Kelsey feels a responsibility “to speak truth to power” – in this case the abuse of proper process and the Act Party’s ongoing contempt for Te Tiriti o Waitangi.
For a time it appeared the Sir Geoffrey Palmer, former Prime Minister and Minister of Justice, Professor of Law at Te Herenga Waka/ Victoria University of Wellington, author of numerous books on parliamentary constitutinalism, and staunch critic of the Bill, was originally not invited to address the select committee, despite saying but he wanted to be heard. He was subsequently offered an opportunity.
All of us appeal to the National and New Zealand First parties to find their democratic voice and prevent this Bill from proceeding past the select committee.
Equally importantly, they are calling on Speaker of the House Gerry Brownlee, as the Chair of the forthcoming review of Standing Orders, to conduct a first principles review of the select committee processes to find an appropriate balance for democratic participation in the digital era, and an effective way to reinstate some degree of integrity and rigorous review to law-making in Aotearoa New Zealand.
Signatures include:
Dame Anne Salmond
Sir Geoffrey Palmer
Professor Emeritus Jonathan Boston
Professor Andrew Geddis
Dr Jim Salinger
Dr Geoff Bertram
Dr Bill Rosenberg
Dr Max Harris
Professor Emeritus Jane Kelsey.
