Here is my Regulatory Standards Bill submission. Ridiculously long, but I lost the ability to edit it ruthlessly after too many days just going WTAF!?! So I’m just going to gift it as-is to the Ministry of Regulation peeps who are analysing the submissions. Soz!
Ko wai au?
1. My name is Rebecca Sinclair. I am Pākehā, a mother of 4, and I have experience in academia, management, leadership development, pedagogy, systems design and social change. Having worked for decades as an academic, with senior leadership responsibilities, I am now an Honorary Research Fellow at Massey University. My area of expertise is restorative systems change in a complex changing world, and the dynamics of embodiment and worldview within that. I am Co-founder of the Pākehā Project, an initiative set up to help Pākehā honour Te Tiriti in embodied and trauma-informed ways, and work towards an ethic of restoration and social cohesion in Aotearoa. In particular, I am bringing a complex systems lens to this submission.
Overview of submission
2. I oppose the introduction, further development, and implementation of the Regulatory Standards Bill, because it attempts to:
(a) constrain the public good aspects of government in Aotearoa by constitutionally defining ‘good regulation’ in terms of the primacy of individual rights and private property;
(b) remove enduring Māori rights by explicitly excluding Te Tiriti o Waitangi from required consideration in regulation;
(c) open up Aotearoa further to increased inequality and its associated harms by incentivising individual and corporate self-interest; and
(d) inhibit the possibility of creating a transformative, visionary, and responsive regulatory system that is fit for purpose in an era of multiple complex and interdependent global crises of which we are a microcosm.
3. The proposed Bill is based on a narrow and exclusionary view of what the purpose and role of government is, and who it should serve (grounded in the libertarian philosophy of the ACT party). It is almost exclusively centered around the upholding and strengthening of the (existing) private property rights (which is another way of saying ‘wealth’) of individuals and corporations. It not only does not include references to Te Tiriti o Waitangi, but it expressly excludes them. It also expressly does not include references to the BORA (though it says there is “some overlap”), and the discussion paper gives no justification for either of these exclusions. It will reduce the protections guaranteed to Māori under Te Tiriti, and at the same time rebuild the very class system that British settlers were trying to escape when they migrated here to what they hoped would be a more egalitarian society than the oligarchy they had left behind. It is lose-lose.
4. It is difficult to go through the discussion paper and comment on each part, because I object to the entire premise of the proposed Bill. It is not being introduced to ensure better regulation per se, but to ensure a specific kind of regulatory emphasis that reflects a narrow and societally harmful value system. This value system has nothing to say about the responsibilities of living as part of a society; of our duties towards each other. Rather it is myopically focused on the way that individual rights might be asserted. It prioritises individual self-interest over collective good, under the incorrect assumption that they are separate, and that individuals acting in purely self-interested ways will aggregate to collective good. It individualises collective problems, ignores the contributions others have made to an individual’s position, and absolves people of responsibilities towards others. There is no ‘both sides’ to this; we need to be able to recognise and call out that the logic underpinning this proposal is harmful to our collective good.
5. If enacted based on the intent and principles in this discussion document, we would see a rise in inequality, the breakdown of social cohesion, the further degradation of our public services and environment, and the result would be a much poorer Aotearoa for everyone (including those who would benefit from the material advantages this proposal would confer on them personally).
6. The proposal would also confer increased costs on the very public institutions that the current government instructs to be more ‘fiscally responsible’, effectively increasing red tape and decreasing what can be invested in improving services. Strengthening the existing regulatory stewardship regime would be a far better (and more efficient!) use of the resources being spent on developing this harmful proposal.
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The problem of inequality is a problem for everyone, even those who we think of as ‘winning’.
7. This proposed bill would exacerbate inequality further and in doing so reduce the quality of life for most New Zealanders, accelerate the breakdown of social cohesion, and degrade public good. A degraded environment (natural, infrastructural, and social) equals poor quality of life for all who live in it.
8. The proposed Bill protects those who already have private wealth (both individuals and corporations), and prioritises them over the shared public realm and the rights of those without wealth. It is designed to legislate out considerations of equity and any rebalancing of systemic advantage.
9. The proposal exemplifies the dynamic of a ‘success to the successful’ systems archetype, whereby those who are already successful receive the means to ‘stack the deck’ in their favour for how the system works into the future, thus cementing their dominance over others. This is explicitly stated in the discussion document that the principles would “focus primarily on the effect of legislation on existing interests and liberties and good law-making process.” [emphasis mine].
10. This dynamic is the driver of inequality, which is harmful to everyone in society (including the so-called ‘winners’). See The Spirit Level[1], by Kate Pickett and Richard Wilkinson, for a peer-reviewed and evidence-based discussion of the role of inequality in contributing to significant societal problems. As they state in a Guardian article[2] in 2024, “[w]hen economic inequality gets worse, so does our health and wellbeing. Inequality can affect a society’s death rates, its levels of chronic disease, and the amount of violence (including murders) it experiences.” This Bill would exacerbate inequality because it reduces the purpose of regulation to protecting (existing) private property rights, and ensures that these rights have primacy over all other rights, such as human rights, cultural rights, Te Tiriti rights, collective rights, and citizen’s rights to benefit from sharing in common ‘property’ (tangible such as air, water, land, and public infrastructure, and intangible such as health, education, wellbeing, and culture).
11. Essentially this proposed legislation would effect a wholesale and radical conversion of Aotearoa New Zealand to a marketplace of individual competing interests where people are licensed to consider their own self-interest over the interests of anybody and everybody else. The more property (ie wealth) you have, the greater power you would have to influence the ongoing design of regulation (of all kinds) to advantage you. And the more access you would have to the means of ensuring your individual interests prevail over the interests of those with fewer resources. Through a systems lens it is easy to see how this Bill would constitutionally entrench inequality into our society, while stating on paper the fiction that everyone is equal.
12. It will result in the game theoretical concept of ‘Moloch’—where everyone is incentivised to act self-interestedly in the immediate term, resulting in the degradation of the shared environment and society in the long term. Everybody loses in this scenario because the collective natural, physical, and societal infrastructures on which we rely have been destroyed.
13. Recommendation 1: stop this bill from going ahead. Apply 3 strikes rule to it.
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Discussion area one: “a benchmark for good regulation through a set of principles of responsible regulation.”
14. In the Minister’s foreword to this proposal, he states, “[m]ost of New Zealand's problems can be traced to poor productivity, and poor productivity can be traced to poor regulations.” There is no justification or evidence given for this statement; it is the opinion of those for whom a country is essentially a profit-making venture for the economic elite. And the proposed principles reflect this highly partisan opinion. Aotearoa is not a profit-making venture for its shareholders; it is our home. These are quite different things with entirely different orientations that require different regulatory emphases.
15. The Minister is myopic in his view of the world if he thinks productivity is our biggest issue, when the world is literally burning around us, when there is a genocide happening in front of our eyes, when authoritarianism and fascism are on the rise, when huge numbers of people in Aotearoa have insufficient food or a decent home, when mental health issues are exploding, and when on our own shores we are experiencing extreme hatred and abuse of those who have the least power. I would ask the Minister to wake up and look around, and listen to those who are experiencing the consequences of the actual poor regulation of the past. Here in Aotearoa we are not separate and immune from these massive global issues: global connectivity, supply chains, media, trade, international agreements, global politics, and just existing in our shared biosphere link us inexorably to these crises and systems failures. We need regulatory architecture that can cope with our interdependence and the complexity of what we are collectively facing.
16. “Good regulation” should address our collective problems, not those of the individuals who are causing them.
17. The cabinet paper states: “the Regulatory Standards Bill aims to reduce the amount of unnecessary and poor regulation by increasing transparency and making it clearer where regulation does not meet standards.” [emphasis mine]. There is no definition given for what might be deemed “unnecessary” or “poor” regulation, and we are left with the tautological conclusion that it would be anything that does not conform to the principles outlined in this bill. This bill is trying to ensure that for all regulation, value judgements like “poor”, “unnecessary”, “good” and “responsible,” are even more skewed than they already are towards self-interest. And that these interpretations are effectively constitutionally entrenched. The principles do not appear to even address what the discussion document itself states “good” regulation is there to do[3].
18. The principles in the discussion document prioritise libertarian concepts of individual rights and idealised (abstract) equality over collective rights and substantive equality (equity). New Zealand’s constitutional and legal framework should not be politically straightjacketed in this way.
19. The proposed principles depart considerably from the LDAC legislation guidelines, and there is no evidenced justification offered for this in the discussion document. The advice in the LDAC manual balances rights and responsibilities, appropriately looks at both individual and collective good, and stresses the importance of the fundamental constitutional principles and values of New Zealand law. The proposed principles are are cherry-picked from a broader matrix of mutually supporting principles, and in the process of extraction and decontextualization from that broader matrix they take on quite a different orientation. The emphasis on rights and liberties here is not balanced by responsibilities towards others and responsibilities towards the whole (of which individuals are also a part). And the emphasis on property rights crowds out all the other kinds of rights that are necessary for a flourishing society.
20. I request that the architect(s) of the Bill justify their deviation from the LDAC manual. I would like to see a rationale for each omission, and a clear articulation of the overall consequences of such a radical departure from an holistic view of regulation where individual and collective rights and responsibilities are appropriately balanced for societal good. Full transparency is needed so that citizens are able to understand the implications for their present and future lives under such a regime. Why, for example, is the ‘principle of legality’ from the LDAC manual not included? Why is there no principle about constitutional fidelity? How can regulation that is not based on our constitution be seen as “responsible”?
21. Recommendation 2: If such a bill is to be introduced:
—Māori are thoroughly consulted before the drafting of the bill on appropriate principles, rather than basing the principles on the three previous attempts to pass this bill. A good place to start for consultation would be the constitutional values outlined in Matike Mai.
—The principles are completely rewritten to take account of that consultation, the full purpose of government, and the established legislative design guidelines from the LDAC manual.
—Regulation of all kind should uphold our constitution, so the bill should include principles that address adherence to Te Tiriti o Waitangi and all BORA.
—The principles should reflect that government is for the good of the people, individually and collectively, not their property. Public good, collective good and long term good should feature in the principles.
—Recognition of the need for substantive equality (equity) should be made explicit.
Commentary on specific proposed principles
22. There are some specific principles included in the proposal I would like to comment on, and also some noticeable gaps. These are emblematic of the wider problems with the bill that I have discussed above. They are not an exhaustive list of all the problems.
23. The rule of law
The principles under this section differ from the rule of law as outlined by the Law Society and LDAC. In particular the statement “every person is equal before the law” is taken out of the broader context of how this principle is framed by the LDAC guidelines. This narrowing changes the emphasis away from ensuring power is exerted within legal limits to a statement about persons being equal. This is the way it is stated in the LDAC guidelines: “[e]veryone is subject to the law, including the Government—People and institutions that wield power must do so within legal limits, and be accountable for their actions; everybody is equal before the law and is subject to it.” This is another example of the ACT party attempting to ensure that equity measures are not supported, and the fiction of everyone being equal is enforced.
24. Liberties
The emphasis in this principle is on the impact of potential legislation on the existing (whether or not legitimately acquired) liberties, freedoms and (property) rights of individuals and corporations. Once again it prioritises individual property rights over public good and collective or shared rights. The accepted reasons for impacting individual property rights are given as “except as is necessary to provide for, or protect, any such liberty, freedom, or right of another person.” Person is given in the singular, and no mention of the myriad other public policy reasons as to why we might need legislation. Regulation here is seen as imposition, not enabler. Nowhere is there an acknowledgement of the very real catastrophic consequences of deregulation or inadequate regulation (such as the leaky homes saga, or the GFC, or social media).
25. Taking of property
This focus on the impact of regulation on private property rights, centralises and elevates the protection of personal and corporate wealth to a level of radical primacy for the role of government. “Property” can have extremely broad definition beyond simply land and goods. This principle has enormous implications for law-making, for the raising of taxes, and for the regulation of harmful activities. The idea that someone should be compensated if their property rights are adversely impacted by regulation, opens the door to a government having to pay someone compensation when, for example, their business profits have been reduced because of new regulation that prevents harm. Or it could stop governments being able to tax for the benefit of wider societal and environmental good. If a person or corporation is acting in a harmful way towards people or planet, and that harmful activity needs to be regulated, there should be no need to compensate the person or corporation who is doing the harm. Additionally, this wording seems to imply that redressing wrongs through this principle should be at the cost of those who have been wronged. Is this the intent? If property has been acquired in a way that has exploited or harmed others, does this principle still apply, and if so why? It appears to legitimise the idea that property acquisition, once achieved by whatever means, is above the law.
26. Good law-making
There does not seem to be a principle that speaks to excellence in law-making in terms of intended outcomes; rather this principle seems to be about doing it quickly and cheaply. See my comments in discussion area two, below, about what both the MfR RIS and the LDAC briefing to the Attorney General say about the biggest challenges to good regulation.
27. The first principle in this section is as follows: “[t]he importance of consulting, to the extent practicable, the persons or representatives of the persons that the Government considers will be substantially affected by the legislation.” The second part of this principle should be edited to read “…the persons or representatives of the persons that the Government considers will be substantially affected by the legislation.” This is taking a citizen-centric approach, rather than the paternalistic one of the principle as written.
28. In the second principle here, the evaluative criterion “who is likely to benefit, and who is likely to suffer a detriment, from the legislation” (page 23) is a simplistic binary understanding of the complexity of benefits and detriments. One might benefit from the legislation as an individual while also suffering a detriment as a member of a group or indeed as a citizen of Aotearoa. None of us are individuals alone; we are all also members of groups and the nation as a whole.
29. I note that there is no principle that relates to long term consequences (intended or unintended) of regulation. This is a stark oversight, as a systems awareness (of nth order effects) should be essential for any regulatory proposal. Any regulation should be evaluated in terms of its broad consequences across multiple domains, not only the one that is the apparent focus of the regulation. Real-life systems do not operate in a vacuum—there is ongoing interdependence and interconnected feedback loops that cause emergent phenomena to develop, and impacts are rarely (if ever!) experienced in a single domain only. Systems dynamics need to be understood, including the feedback loops created by human psychology and behaviour at individual and collective levels.
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Discussion area two: “mechanisms to transparently assess the consistency of new legislative proposals and existing regulation with the principles.”
30. There are already processes to assess quality of legislation—through RIS’s and disclosure statements—and strengthening these would be the best way to proceed. When part of The Legislation Act 2019 comes into force, there will be enhanced requirements for disclosure statements. I note the Ministry of Regulation itself recommends this approach. Why is this not being considered as a much more efficient and cost effective way to ensure quality?
31. I note from the Interim RIS provided by the Ministry of Regulation that international benchmarking indicates that New Zealand’s regulation performs well in relation to the OECD (contradicting the Minister’s opening remark about poor regulation), and that many of the challenges identified are due to such underlying factors as high-speed reform design and implementation (without enough time to robustly assess impacts or focus on good implementation), and capacity constraints in the public sector. These are both within the government’s control. It seems to me that it is the executive itself that is causing the problems with our regulatory management systems, and this proposed bill is another example of poor regulation design. In particular, it seems to fall into the category that the Ministry of Regulation identifies as a key issue: “[a] historical and ongoing over-use of legislation… where existing legislation could be adapted to achieve the intended objectives, or the objectives could be achieved without use of legislation. This can lead to unintended consequences or, more broadly, increasing complexity and incoherence in regulatory systems.” [4]
32. The Briefing for the Incoming Attorney-General 11 December 2023 provided by LDAC, backs this up. It seems clear that an ongoing intention to fast track regulatory reform (and in fact fast track as much as possible), while at the same time cutting the budgets of public sector agencies, is the primary cause of poor regulation. The way to ensure good regulation is to resource it.
33. Recommendation 3: strengthen existing mechanisms for quality assurance of legislation, avoid fast tracking regulation design and operation, and provide proper resource (time and financial) to ensure that it is done properly.
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Discussion area three: “a mechanism for independent consideration of the consistency of existing regulation, primarily in response to stakeholder concerns.”
34. The proposed Regulatory Standards Board is an additional body that replicates the mechanisms already in place for a member of the public to make a complaint. It is not a truly ‘independent’ body in the form that this bill currently proposes as it is appointed by the Minister, who could stack it with political appointees. The balancing of interests and scrutiny over regulation should remain with elected representatives—the Parliamentary branch—not the executive branch who would effectively be self-regulating. This is the proper role of that branch of our legislature. This proposal, while reducing an overbalance towards the judiciary, instead skews the balance towards the executive (who are themselves the ones being scrutinised).
35. The ability for anyone to complain about as aspect of regulation to the RSB, coupled with the extra power the RSB is given here, would result in the likelihood of powerful interests have outsized influence on our regulatory systems. It would enable those with power and resources (such as lobbyists and corporate interests) to challenge laws that protect people and the environment, and insert a lot of grit into the wheels of government. The (unintended?) consequences of this would be detrimental to ordinary New Zealanders and introduce a lot of extra costs. While on paper anyone could make a complaint to the RSB, we all know in reality that those with the most resources are most likely to do so and often it is a case of who is prepared to be the squeakiest wheel (see OIA requests for an example of how this dynamic works).
36. The fact that the RSB can only look at complaints about regulations in terms of their adherence to the proposed principles is why a systems lens is so crucial to be applied to all regulation. This one decision—the definition of these principles—leads to a cascade of other downstream effects that would lock us permanently into law-making based around a libertarian philosophy and neoliberal economics, no matter who was in government. And that is the very philosophy and economic doctrine that has caused such pain worldwide and is continuing to drive the global metacrisis. It is the last thing we need if we want a liveable future.
37. Recommendation 4: do not implement a Regulatory Standards Board. Instead continue to make existing mechanisms more visible and robust. Scrutiny Week in Parliament, for example, should be extensively covered and broadcast on public media. It is one of the places for exactly the transparency that is needed, but if it takes place under the cover of a media blackout, then it is very difficult for the public to be informed.
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Discussion area four: “provisions to support the Ministry for Regulation in its work to improve the quality of regulation.”
38. This bill proposes too much overarching power is invested in one Minister, who would have the power to intervene across all areas of government under the aegis of regulatory stewardship. The power to make rules is a significant power, but even greater than that is the power to make rules about making rules. It is always a huge risk concentrating power in the hands of a single individual, because if they do not act in good faith there is no power to prevent them from doing harm.
39. The bill (ironically, given the Minister’s belief in cutting red tape) increases the costs on government agencies and will require more ‘back office’ staff to deal with the work it generates. It is an exemplar of poor regulation.
40. The Ministry can be supported in its work to improve the quality of regulation by strengthening the existing mechanisms and ensuring that RIS’s, disclosure statements, and the evidence-based advice of public servants are paid attention to. Rather than a legislative change, the way to ensure higher quality regulation is to resource it properly by allowing appropriate timeframes and ensuring that government agencies have the capacity and resource to do their job. The principles in this Bill are not the way to improve regulation; they will make them worse.
41. Recommendation 5: strengthen existing mechanisms, ensure the executive observes the existing guidelines and receives the genuine free and frank evidence-based advice from public servants. Allocate sufficient time and resources to ensure good regulation.
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The big issue with regulation that this bill is silent on.
42. While this bill is worried about how regulation might impact the wealth and property of those who have wealth and property, there are enormous issues affecting all of us that our current regulatory systems are unable to deal with. These are the large, entangled complex problems that bridge multiple domains, that cannot be addressed within the silos of conventional government agencies (or even groups of agencies), that require community activation, and that need a different orientation to that geared towards predictability. These problems need a new regulatory architecture that can operate holistically, can attend to (constantly evolving) interdependencies, can respond to emergence and shock, and can be oriented to how people respond to change. The big issues in our present and future cannot be faced in an every-man-for-himself paradigm. They are too big and too complex. We need each other.
43. In Aotearoa, we have great models for sophisticated, holistic, systemic, collective, relational, responsive approaches to complexity in te ao Māori. Now would be a great time to recognise that a true Te Tiriti-led approach to our constitutional arrangements could give all of us a much better future.
44. Recommendation 6: reframe this bill around our future needs for good and responsible regulation, for all our sakes. Reroute the resources from outdated ideas on regulation that are well past their use-by date, into future-focused ideas that will equip us for the accelerating change in Aotearoa and the world, drawing on the blueprint of Te Tiriti.
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Conclusion
1. This proposal does not meet the standards of good and responsible regulation and its enactment would reduce the quality of regulation and undermine the government’s ability to achieve policy objectives. A focus on self-interest, through the primacy of individual rights and private property, will further incentivise behaviours that take little account of the impact on the wider environment (natural, infrastructural, and social), deepen inequality, and perpetuate harm. It is not appropriate for ACT party ideology to form the basis of constitutional arrangements. The proposal deliberately excludes Te Tiriti o Waitangi from the principles of good regulation, and this is a blatant breach of Te Tiriti that should not be allowed to stand. It will further marginalise Māori rights and values, leading to increased inequity and racism. The bill will add considerable costs to the public sector, including the risk of compensation payouts to corporations if regulations affect their property rights. And the bill is not fit for the future we all have ahead of us.
[1]Pickett, Kate, and Richard Wilkinson. 2009. The Spirit Level: Why More Equal Societies Almost Always Do Better. London: Allen Lane.
[2] https://www.theguardian.com/commentisfree/article/2024/jul/23/landmark-book-spirit-level-cost-inequality-fifteen-years-later-worse-labour
[3] See page 9 of the discussion document. “Good regulation can help governments to achieve their desired economic, environmental and social outcomes, support the effective operation of markets, and protect communities from harm.”
[4] P. 13. https://www.regulation.govt.nz/assets/RIS-Documents/Interim-Regulatory-Impact-Statement-Legislating-to-improve-transparency-of-the-quality-of-regulation-v2.pdf
Thank you Rebecca. I am so grateful for the big intellects doing the heavy lifting on this mahi. Aroha mai aroha atu e hoa.
Thanks Rebecca. Super helpful