Last submission for the week
The Regulatory Standards Bill looms large
There have been some excellent and thoughtful think pieces on the proposed Regulatory Standards Bill. This Bill has not yet gone to Parliament - the Ministry for Regulation has written the Bill and is wanting to find out what people think about it before it goes.
Far finer legal minds than mine have written well-crafted and detailed responses. There is a fabulous list on Link Tree of recent articles, explainers, podcasts, videos, and government documents.
I really liked this explainer from lawyer Riana Te Ngahue:
I also drew on the material from this Explainer & Submission Guide, which was written by a group coordinated by Jen Bennett,
, and .There are multiple arguments in this material regarding the RSB’s failure to recognise Te Tiriti o Waitangi, failure to ensure the rights guaranteed to Māori such as rangatiratanga and the exercise of kaitiakitanga, failure to support Māori tino rangatiratanga, and failure to acknowledge the role of regulation in protecting shared resources and citizens from exploitation.
Being in the disability sector, I am also concerned that the proposed Bill would override the rights of disabled persons as contained in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), erode the Bill of Rights Act (BORA), and impinge on the ability of the government to implement NZ’s Disability Strategy and Enabling Good Lives principles.
If you’re up for a final push on the submission front, you can either work through the Ministry for Regulation’s 36 question survey or you can email your thoughts directly to RSBconsultation@regulation.govt.nz
But. If you’re quite done with submissions for now, it is also okay to take a break, to rest up, and to come back when you’re feeling ready and able. Remember: Rest is Resistance too!
My responses to the survey questions are as follows (edited and summarised to reduce repetition and the typos I found - argh!). It is rather slapped together in comparison with the thoughtful analysis of others - however, as I have said all week, the best submission is a submitted one! I’ve freely borrowed from the above-mentioned documents and added in a few extras.
Overall views on the quality of New Zealand’s regulation
Aotearoa New Zealand already has fairly high-quality legislation. Internationally, New Zealand performs strongly in the areas of constraints on government powers; absence of corruption; order and security; and regulatory enforcement.
Sources: NZ Law Society and Rule of Law Index
Aotearoa New Zealand is also at the top of the OECD for ease of doing business, and ranks highly when compared to other countries for the following:
1st on Corruption Perception Index (Transparency International)
1st on Ease of Doing Business Index (World Bank)
2nd on Prosperity Index
3rd on Economic Freedom Index
11th on the OECD’s Better Life Index
13th Human Development Index
Source: Ministry of Foreign Affairs and Trade.
Given that New Zealand has excellent international rankings on relevant Indexes on the matter, it would appear that the current arrangements are entirely sufficient, and that there is no requirement for a Regulatory Standards Bill.
Discussion area one: Setting standards for good regulation
The principles as set out in the RSB do not align with the governments existing obligations. They do not support or align with Te Tiriti o Waitangi articles. They are not aligned with a human rights approach, nor are they aligned with collective values or approaches that support human flourishing.
The RSB principles do not adequately support the following:
The New Zealand Bill of Rights Act (1990). This Act states that everyone has the right to be free from discrimination from government and state officials, including with regards to education and on the grounds of disability.
New Zealand is a signatory to several United Nations conventions that emphasise disabled peoples’ human rights. As such, governments are required to undertake all appropriate legislative, administrative, and other measures for the implementation of the rights. These conventions include:
United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
United Nations Convention on the Rights of the Child (UNCRoC.
NZ Disability Strategy (2016-2026). The New Zealand Disability Strategy is the Government’s primary vehicle for implementing the UNCRPD and includes the NZ Disability Action Plan. Of interest here is Outcome 4: Rights protection and justice: Our rights are protected; we feel safe, understood and are treated fairly and equitably by the justice system.
Enabling Good Lives Principles. This is a set of principles designed by disabled people and their families to support their self-determination in decision-making processes.
The RSB privileges individualistic rights and property rights, with a focus on protecting a person’s (or corporation’s) individual or property rights. However, it is the role of government to balance a range of rights and interests, including individual rights, property rights, human rights, societal wellbeing, the environment, and Te Tiriti o Waitangi. The proposed principles effectively exclude important and necessary components of good legislation and could result in the New Zealand government being unable to freely able to balance a wide range of rights and interests.
Restrictions on taxes, fees and levies which would significantly reduce the ability of government to fund the public services and infrastructure the population requires, and which are of particular value for disabled persons and families. This has potential to breach the rights of disabled people that New Zealand has promised to uphold as a signatory to the UNCRPD.
The approach undertaken is selective of aspects of the rule of law. Equality before the law may sound good but in practice but it can mean protecting existing unequal interests e.g. the property rights of the wealthy get protected, while actions to increase fairness and equality are restricted e.g. affirmative action for disabled persons and actions to ensure equitable access to resources.
The RSB allows for deregulation through application of the narrow definition of regulatory stewardship; this is problematic for disabled persons as deregulation both contributes to increases in disability through insufficient health and safety regulations, acts to allow discrimination against disabled persons, and fails to protect the human rights thereof.
There is a strong clause on the taking/impairing of property, including a requirement for fair compensation. Under this principle any limitations on the unhindered rights to use property (including, for example, land for development, intellectual property, mining licenses etc.) would mean that the government could be sued for compensation for lost future income and profits. This is problematic.
Principles for regulation should be based firstly on Te Tiriti o Waitangi, and then secondly on the existing Conventions that New Zealand is a signatory to. The Enabling Good Lives Principles are designed for the flourishing of disabled persons and families, and as such would make an ideal approach for underpinning legislation.
Discussion area two: Showing whether regulation meets standards
The consistency checks appear to be more focussed on implementing a narrow set of principles and ideals across regulation rather than on what is best for all New Zealanders, including disabled persons.
The proposed requirements strangle the flourishing of all New Zealanders, do not uphold Te Tiriti o Waitangi, and privilege wealthy interests.
Discussion area three: Enabling people to seek independent assessment of whether regulation meets standards
The proposed Board is unnecessary red tape. New Zealand already does well when it comes to legislation. The design of the proposed Board privileges wealthy interests, and does not support a Treaty-based approach, nor does it support the rights of disabled persons as required under the UNCRPD.
Discussion area four: Supporting the Ministry for Regulation to have oversight of regulatory performance
Any Bill designed to support the quality of regulation should recognise Te Tiriti o Waitangi, acknowledge and support the rights guaranteed to Māori such as rangatiratanga and the exercise of kaitiakitanga. It should not risk undermining Māori tino rangatiratanga nor should it ignore the role of regulation in protecting shared resources.
Any Bill designed to support the quality of regulation should consider accessibility, disabled persons rights under the UNCRPD, and the NZ BORA.
Any Bill designed to support the quality of regulation should ensure that neither people nor land can be exploited, and that wealth is fairly and equitably accessible for all persons.
Other comments
This Bill should not proceed, given the risk it poses to the rights of Māori, to disabled persons, and the risk of allowing unfettered exploitation of land and people. The Bill fails to consider the need of governments to legislate in the interests of a wide variety of topics and people.
Excellent post
Very helpful thankyou x