NZ Council for Civil Liberties

Submission: Regulatory Standards Bill

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About the New Zealand Council for Civil Liberties

  1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.
  1. We wish to make an oral submission.

Summary

  1. The bill includes some run-of-the-mill ways in which the quality of regulation can be improved. However, the proposals also go far further than this and in this respect seek to embed an ideologically driven concept of liberty that is inimical to internationally agreed norms and standards for personal liberty and human rights. The fact that the principles of responsible regulation in clause 8 do not include reference to the New Zealand Bill of Rights Act 1990 is a flashing red beacon highlighting the ideologically inspired limitations of the bill.
  1. The bill seeks to significantly redefine and limit the very purpose of our government. The proposals are therefore of a quasi-constitutional nature, so the idea that they should become law simply by passage of an Act is entirely inappropriate.
  1. The Council opposes the bill in the strongest possible terms. Existing standards for the quality of legislation and regulation can be strengthened without legislation. The expense that passage and implementation of this bill will require would be better spent on improved monitoring and evaluation of existing laws.

The bill

  1. The bill does four things:
  • Define some principles of ‘responsible regulation’;
  • Establish a requirement for public servants and ministers to evaluate legislation and regulations against those principles, and justify any departure from them;
  • Set up a Regulatory Standards Board for people to complain to about laws and regulations that they do not like. The Board would be able to assess legislation against the principles and issue a report with its findings; and
  • Empower the Ministry of Regulation as a meta-regulator of other agencies’ regulatory stewardship and quality.
  1. Set out like this, the bill may sound reasonable. However, as with all law-making the devil is in the details, and the details here are fundamentally flawed.

The bill is not good regulation

  1. This bill seeks to establish fundamental rights, focused on the property rights of people and corporations. However, it does so entirely divorced from either past work or the New Zealand context. Good regulation would oppose duplication of effort and the establishment of an entirely new set of regulatory agencies to repeat work already being done.

Proposals based on flawed and deliberately limited analysis

  1. The Council notes that the Regulatory Impact Assessment of the bill was analysed by a quality assurance panel with members from the Ministry for Regulation, Ministry of Justice, Ministry of Business, Innovation and Employment and the Treasury.1Regulatory Impact Statement: proposed Regulatory Standards Bill, Ministry of Regulation, 26 March 2025. Accessed from: https://www.regulation.govt.nz/our-work/regulatory-impact-statements/regulatory-impact-statement-proposed-regulatory-standards-bill/
  1. The Quality Assurance Panel concluded:

The RIS notes that the scope of the options has been limited by the Coalition agreement and Ministerial direction and as a result, alternative approaches to the proposal have not been explored in detail.

…

The information in the RIS suggests that the specific legislative changes sought in this Cabinet paper are unlikely to be the most efficient approach to pursuing the stated objectives. It highlights that, if the recommendations are agreed, regulating in the public interest may be more costly, with an uncertain impact on the underlying behavioural incentives and on the information problems that drive poor regulatory outcomes. The panel notes that the scope of consistency reviews was included after public consultation, and the RIS has limited analysis of impacts, including on local government. This additional requirement has significant estimated costs and potential for crowding out other regulatory maintenance and stewardship activity.

  1. In other words, instead of being the result of genuine open-minded exploration of the ways in which the quality of laws and regulations could be improved, the policy process leading to the bill is based on deliberately limited, and therefore flawed analysis and reasoning. The Quality Assurance Panel also notes that the scope of consistency reviews was only added after the public consultation and that the RIS has limited analysis of the impacts of the bill, including on local government. Overall, the RIS does not show why the bill is needed. In our view, the flaws in the analysis and reasoning stem from the ideological motivation for the legislation, and are therefore insurmountable.

Proposals surrounded by secrecy

  1. Good proposals for legislation would also be clear, open and transparent. We are very concerned that the Preliminary Treaty Impact Analysis referred to in the RIS (paragraph 51) and the Cabinet Paper approving the consultation on the proposals were both heavily redacted, especially when mentioning Te Tiriti o Waitangi.2Preliminary Treaty Impact Analysis for the proposed Regulatory Standards Bill, Ministry of Regulation, November 2024. Accessed from: https://www.regulation.govt.nz/assets/Publication-Documents/Preliminary-Treaty-Impact-Analysis-for-the-proposed-Regulatory-Standards-Bill.pdf Approval To Consult On A Proposed Approach To The Regulatory Standards Bill, Cabinet Paper from the Minister of Regulation, CAB-24-SUB-0437, no date. Accessed from: https://www.regulation.govt.nz/assets/Publication-Documents/Cabinet-Paper-Approval-to-consult-on-a-proposed-approach-to-the-Regulatory-Standards-Bill-COMBINED.pdf Most of the redactions are on the basis of protecting the privilege in legal advice. Annex 2 of the Cabinet paper, which sets out Crown Law’s view of the ‘legal risk and proposed solutions’ is entirely withheld from the public.3See paragraph 42 of the Cabinet paper.
  1. The Council believes such redactions are unjustified and contrary to the public interest in the context of proposing new legislation. The redactions flout the section 4 purpose of the Official Information Act, of enabling people to effectively participate in the making and administration of laws and policies. Effective participation requires people being informed about the risks and potential mitigations stemming from proposals, so withholding the legal advice blocks effective participation. The secrecy is itself counter to the very notion of good regulation-making, which would enable the risks being adequately understood before proceeding.

Proposals add complexity and cost

  1. The proposals blur lines of accountability for ministers and officials in a system where there is already a mix of regulatory gateways for proposed new legislation. The Legislation Design Advisory Committee (LDAC) Guidelines, Regulations Review Committee, and New Zealand Bill of Rights Act (BORA) reviews will have another layer put on top of them. This proposed layer will not adhere to international standards of human rights, but to a juvenile conception of property rights being sovereign.
  1. The mechanism of the proposed additional layer of bureaucracy will undermine the policy advisors and technical experts with deep domain expertise in other government departments and regulatory agencies. In doing so, this risks the achievement of desired outcomes for other policy initiatives, particularly where these depart from the bill principles’ fixation on property rights.
  1. The liberties of natural persons are often preserved best by not regulating, but we also appreciate that many liberties enjoyed by people individually cannot be secured except by well-designed regulation that may limit the rights of one segment of the population for the benefit of many others. Good regulation should involve an accurate assessment of the benefits of regulation against the costs, but (a) this is best done by the domain experts in the relevant ministries, not a Ministry of Regulation, and (b) by considering social and environmental issues, not just property rights.
  1. The Council also notes that bill does nothing to address the shortcomings of existing forms of scrutiny of legislative proposals. The one we are most familiar with is the vetting of bills against the BORA, and the consistent failure of Crown Law and the Attorney-General to consider whether clauses in new legislation that override our right to information in the OIA can be justified. This issue will be explored by the UN’s Human Rights Committee in Geneva in the coming year, with the government already being asked by the Committee to provide an explanation for why it fails to meet its legal obligations. Similarly, the Human Rights Committee has asked for an explanation of why so much legislation is passed that undermines our right to privacy. Given the decades-long shortcomings of BORA vetting, and the bill’s obsession with property rights, we have little confidence that the reviews of consistency required by clause 9 of the bill will address the problems we and Members of the House regularly experience.

Defining Liberties and the obsession with property

  1. Before getting into the failures with the bill’s definition of ‘Liberties’, the Council points out that the bill’s duplication of effort would be moot if we chose to stay with the well-established definitions in BORA. The Council has long maintained that we need a written constitution in a single document, and that this constitution must incorporate the rights presently found in BORA.4Submission to the Constitutional Advisory Panel, New Zealand Council for Civil Liberties, 11 July 2013. https://nzccl.org.nz/nzccl-submission-constitutional-advisory-panel/

Liberties

  1. The bill’s definition of ‘Liberties’ in clause 8 is:

Legislation should not unduly diminish a person’s liberty, personal security, freedom of choice or action, or rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such liberty, freedom, or right of another person.

  1. First and foremost, if we are to legislate a definition of Liberty, it must include a reference to all of the rights of people under the New Zealand Bill of Rights Act.
  1. Second, it is clear that the bill’s references to ‘person’ and ‘persons’ are not limited to natural persons, i.e. human beings. The bill also means these terms to cover legal persons, i.e. companies and other incorporated entities. When this is understood, the definition of Liberties might be read as follows:

Legislation should not unduly diminish a company’s liberty, a company’s security, freedom of choice or action, or rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such liberty, freedom, or right of another human or company.

  1. When seen in this light, the ideological origin of the definition’s bar for regulatory proposals to surmount, that of ‘necessity’, becomes clear. It means that the property rights of a company cannot be limited or overridden if it is socially or environmentally desirable for the benefit of the public, only if it can be proven to be necessary.
  1. Third, the definition also extends the notion of personal liberties beyond the normal freedom from state interference. It does this when it extends the liberal principle to incorporate not just limits on behaviour but also into personal property rights. The bill views an infringement on a property right as a curtailment of liberty, and this is at the heart of the ideological motivation for these proposals. It is how the government has arrived at the position that all regulation is, at its deepest level, an intervention on the ‘use and dispos[al] of property’ and therefore needs to be justified as an infringement on liberty.
  1. The Council opposes the bill’s conflation of the liberties of natural persons with the limited set of rights and privileges that society has, for the time being, granted to legal persons such as companies. This conflation is entirely deliberate, both in an effort to make the proposals sound more reasonable than they are, and to try and elevate the power and privileges of legal persons to those of natural persons. This is dangerous and should not be proceeded with.

Property

  1. The Council cannot support clause 8(c) on the taking of property. It states:

Legislation should not take or impair, or authorise the taking or impairing of, property without the consent of the owner unless:

  • there is good justification for the taking or impairment; and
  • fair compensation for the taking or impairment is provided to the owner; and
  • the compensation is provided to the extent practicable, by or on behalf of the persons who obtain the benefit of the taking or impairment:
  1. This sounds reasonable when we think about a person’s land being compulsorily purchased by local or central government in order to do something like build houses, a school, hospital or a road.
  1. It sounds far less reasonable when you consider that the profits a company makes from selling its products are its property, and the state can take a portion of that property/profit as taxes. According to the definition set out in the bill, the state would have to provide ‘fair compensation for the taking’ of a portion of the profits in taxes. Again, the ideological roots of these proposals are visible – they come from a tiny minority of people who view tax as theft, rather than the key to living in a civilised society.
  1. However, the definition is not just limited to the ‘taking’ of property: it also includes the ‘impairment’ of property.
  1. There are many examples of the government impairing property. A company may have patented a product that uses a new technology, but if the government proposes to adopt safety standards to protect the public from harm, that would have the effect of preventing the company from selling its product and the government would be impairing the company’s property. Under this bill, the government would have to pay compensation to the company.
  1. An obvious example of this would be the regulation of what cladding can be used on the outside of buildings. Under the bill, a government that restricted the type of cladding material used on the outside of the Grenfell Towers in London (and many other buildings elsewhere) would have to pay compensation to the companies that developed that kind of cladding, regardless of the evidence of how dangerous it was in a fire. When we consider this bill against the government’s other proposals for deregulation, it becomes apparent that the bill is an attempt to try and prevent a future government regulating safety standards without paying ‘compensation’ to companies whose products are affected. For example, if a future government were to tighten controls on the use of ‘Roundup’ (glyphosate), it would have to pay compensation.
  1. However, probably the best example is tobacco advertising control. Many countries have now passed laws that prohibit the use of branding on cigarette packaging, and in public. The tobacco industry fought hard against this arguing that it was expropriation of their trademark rights (a type of property right), and a limitation of the companies’ freedom of speech. Under the bill, governments would be expected to compensate tobacco companies for the “impairment” of their intellectual property and freedom of speech, regardless of the benefits to public wellbeing and public finances of reducing the harm caused by smoking.
  1. Legislation that prevented property owners from mining land that is important for conservation of biodiversity (and thereby a liveable planet) would also require the state to pay compensation, regardless of whether a resource consent to undertake mining had been granted. A District Plan that protects neighbours’ property amenities like daylight would be impairing the right of a neighbour to replace their bungalow with a multi-storey tower block.
  1. While both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights recognise the freedom of people to ‘dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation’, these property rights are not placed above other human rights. Although the bill singles out for protection the ‘private harm principle’ it ignores the long-established ‘public harm principle’ which justifies constraining liberty to protect the public interest. This means that government measures to protect the public interest, minimise public harm or safeguard the environment will be inconsistent with the proposed ‘benchmark for good legislation’. The Council strongly opposes any measure that privileges the ‘private harm principle’ for property rights against our human rights.

Conclusion

  1. Good quality law-making, that protects people’s rights, is a desirable goal to have. The bill will not achieve that goal. Instead, by privileging property rights and seeking to protect the ‘liberties’ of companies, it will result in poor quality law making that undermines people’s rights in order to benefit the wealthy. Environmental and health and safety regulation will be particularly at risk under these proposals. The proposed Regulatory Standards Board is a glaring nexus for corruption and lobbying by vested interests. The bill is fundamentally undemocratic and should not be taken any further.