Fourth time lucky? ACT’s regulatory standards law may finally pass, despite Treaty and legal doubts

With the ACT Party’s Regulatory Standards Bill now before the Finance and Expenditure Committee, having passed its first reading in parliament last week, parallels with the now abandoned Treaty Principles Bill have already been drawn.

Lawyer Tania Waikato, who led an urgent Waitangi Tribunal claim before the bill was introduced, has dubbed it “the Treaty Principles Bill 2.0”. The tribunal itself recommended the government “immediately halt [its] advancement”.

The reasons for the concern lie in the bill’s constitutional implications – which in turn would affect the place of te Tiriti o Waitangi/Treaty of Waitangi in the nation’s legislative framework.

Legal experts have warned of the consequences of the bill’s broad reach, one arguing it aims to create a “regulatory constitution”. Others have suggested the regulatory criteria set out in the bill are highly selective, reflecting a libertarian ideology rather than universally accepted standards of good lawmaking.

Perhaps most strikingly, the Ministry for Regulation – itself an ACT Party initiative under the coalition agreement – views the bill as unnecessary because there are more efficient and effective ways of improving the quality of lawmaking.

The primary impact of the bill would be to make it harder to enact laws that do not conform with its prescribed criteria. While not binding, in practice those criteria are intended to act as a legislative filter. The fact te Tiriti or its principles are missing from those criteria explains the Waitangi Tribunal’s alarm.

Missing rights

This is the fourth time since 2006 a similar law has been proposed by the ACT party during different governments. Each version has failed to progress once before parliament.

This time, however, a commitment in the coalition agreement between ACT, National and NZ First suggests the bill could eventually become law – although NZ First leader Winston Peters has signalled his party wants changes to what he calls a “work in progress”.

The bill in its current form sets out criteria for assessing legislation under the following categories: the rule of law; liberties; taxes, fees and levies; role of the courts; and good lawmaking.

All government bills would include a statement of consistency with the prescribed criteria, with reasons given for any inconsistencies. Government agencies would need to undertake regular reviews for consistency of the legislation they administer.

A regulatory standards board would be established to inquire into the consistency of existing legislation and legislation before parliament.

The criteria themselves prioritise some rights while overlooking others completely. As well as te Tiriti o Waitangi being conspicuously absent, so are rights recognised in the New Zealand Bill of Rights Act 1990.

Currently, both the principles of the Treaty of Waitangi and the Bill of Rights Act feature prominently in the existing legislative design guidelines administered by parliament’s Legislation Design and Advisory Committee. Those guidelines also cover most of the other criteria selected for the Regulatory Standards Bill.

But the bill’s emphasis on the protection of property rights has been criticised for potentially circumventing those existing guidelines. For example, Greenpeace has argued this could interfere with implementing effective environmental protections.

Inherently relevant to Maori

Some of these issues were raised in the urgently convened Waitangi Tribunal hearing on May 14. Claimants were concerned about the lack of consultation with Maori and that the bill’s criteria would be used to override te Tiriti rights and block measures designed to promote equity.

The tribunal’s interim report on May 16 found the Crown had breached the Treaty principles of partnership and active protection of Maori in its development of the bill. Proceeding without meaningful consultation with Maori would be a further breach of those principles, according to the tribunal.

However, a full draft of the bill was not available at the time of the hearing. The tribunal noted, in the absence of a draft bill, that it was unable to determine the precise prejudice Maori would suffer if the bill became law.

The tribunal also saw the bill as constitutionally significant. While the bill’s effects may be uncertain, the tribunal found, they “will undoubtedly be felt in the law-making and policy space, are constitutional in nature, and inherently relevant to Maori”.

According to the tribunal, the Crown had an obligation to engage in targeted consultation with Maori, but it did not do so. That obligation was heightened by the “reasonable concerns” raised by Maori about how the bill might affect the Crown’s ability to uphold its Treaty obligations.

These concerns also featured heavily in submissions responding to the initial discussion document during the consultation process – although questions remain about how many submissions were actually read and assessed.

Despite the tribunal’s recommendation that the bill’s progress be stopped to allow for meaningful engagement with Maori, Cabinet approved it on May 19, it was introduced to parliament the same day and debated under urgency on May 23.

Submissions to the select committee close on June 23, and many of these concerns will inevitably be aired again. But depending on the committee’s recommendations, and if NZ First supports a revised draft, ACT’s regulatory wishes may finally come true.

Carwyn Jones provided expert evidence for claimants in the Waitangi Tribunal's urgent inquiry into the Regulatory Standards Bill. He was not a claimant in that inquiry.