A New Name, the Same Agenda: Harmful Potential Impacts of the Regulatory Standards Bill
BY HEATH AWATERE-MADDEN
Introduction
The Regulatory Standards Bill, currently before New Zealand's Parliament, is promoted as a means to improve the quality of lawmaking through greater transparency and consistency. At face value, it proposes that all new legislation be assessed against a set of “responsible regulation” principles to ensure good governance. Proponents, such as Regulation Minister David Seymour, argue that the Bill will raise lawmaking standards and make government regulation more transparent and accountable. However, beneath its neutral language lies an ideological agenda that could undermine democracy, marginalise Treaty obligations, and embed neoliberal economic norms into New Zealand's lawmaking. Some legal experts and commentators have dubbed it “Treaty Principles 2.0,” suggesting it represents the same agenda under a new name.
Imposing Rigid Principles and Judicial Overreach
A core feature of the Bill is the attempt to legislate a fixed set of regulatory principles. These include strict adherence to the rule of law, which means that everyone, including the government, must follow and be accountable to clear and publicly known legal rules. The Bill also emphasises the protection of individual liberties and property rights; the reduction of compliance costs for businesses; and a preference for market mechanisms, where goods and services are allocated primarily through supply and demand rather than government intervention. All government bills would require a statement of consistency with these principles, and any departure would need explicit justification. In practice, this would create a ‘filter’ or hurdle for policies that, while serving important social or environmental goals, might impose costs on businesses or limit property rights.
Emeritus Law Professor Jane Kelsey, a long-time opponent of the bill, notes that ACT’s priority for private property rights comes at the exclusion of “balancing considerations”, meaning that laws advancing equity, public health, or environmental protection would struggle to pass muster. Under the Bill, good governance is thus narrowly defined by economic efficiency rather than broader public interest.
The Bill’s invitation for judicial oversight into the policy realm is equally troubling. The Regulatory Standards Bill empowers courts (or a new proposed Regulatory Standards Board) to review whether legislation meets these criteria by elevating abstract regulatory principles to quasi-constitutional status. Judges could effectively be called upon to second-guess the policy rationale behind democratically enacted laws, assessing, for example, if a new regulation unjustifiably infringes on property rights or market freedoms. While they would not be able to strike down primary legislation for inconsistency with the Bill, they would be expected to interpret laws in line with its principles wherever possible, similar to the interpretive approach taken under the New Zealand Bill of Rights Act. For secondary legislation, such as regulations, the courts could go further, issuing declarations of inconsistency or even invalidating them if they fail to meet the Bill’s prescribed standards. This blurs the line between legislative and judicial functions.
Legal experts have warned that the Bill aims to create a parallel “regulatory constitution” where laws are measured against selective economic tests. Such a system risks turning courts into arbiters of economic orthodoxy rather than interpreters of law. The separation of powers could be eroded as unelected judges (or board members appointed by the Minister) gain scope to invalidate or rebuke policy decisions that do not align with the Bill’s ideology. This prospect is at odds with New Zealand’s constitutional tradition, where parliament is sovereign in policymaking. Although the Bill does not empower judges or the proposed Regulatory Standards Board to strike down primary legislation, it gives them a recommendatory role that carries significant weight. Courts may issue declarations of inconsistency, and the Board can publicly criticise laws and regulations that it deems non-compliant. While technically non-binding, these powers would introduce new pressure points that could constrain Parliament’s legislative freedom in practice.
Ignoring Treaty Obligations and Indigenous Rights
Another glaring flaw is the Bill’s failure to engage with Te Tiriti o Waitangi. Nowhere does the Regulatory Standards Bill acknowledge the Crown’s obligations to Māori or the Treaty’s place in New Zealand’s constitutional landscape. In fact, the discussion document explicitly omitted any Treaty of Waitangi principle from its definition of “responsible regulation”. This omission is significant: it implies that regulations protecting Māori rights or giving effect to Treaty principles could be deemed inconsistent with the Bill’s criteria. Critics argue the Bill would provide a means to weaken Treaty protections and remove the legal force of Te Tiriti from legislation, effectively rebranding the proposal as a “Treaty Principles Bill 2.0” in disguise.
Tania Waikato, the lawyer who led an urgent Waitangi Tribunal claim against the Regulatory Standards Bill, told the Tribunal that the Bill would change the constitutional relationship between the Crown and Māori as established by Te Tiriti o Waitangi “by stealth and without the consent of Māori as Treaty partner.” The Waitangi Tribunal was sufficiently alarmed to hold an urgent inquiry, ultimately finding that the Bill’s development breached Te Tiriti due to a lack of consultation with Māori. The Tribunal took the extraordinary step of recommending an “immediate halt” to the Bill’s progression. Ignoring this counsel, however, the government has thus far continued to advance the legislation.
The absence of any Treaty clause in the Regulatory Standards Bill also marks a stark regression in bicultural governance norms, undermining decades of progress in integrating Te Tiriti considerations into policymaking. It signals to Māori that their rights and partnership status can be overridden by a technocratic insistence on cost-benefit calculations and property rights. Such a shift not only marginalises Indigenous voices but also risks eroding the legitimacy of the law in the eyes of Māori as a Treaty partner.
Threats to Democratic Decision-Making and Responsive Governance
The democratic implications of the Regulatory Standards Bill are far-reaching. Despite the Bill’s technocratic veneer, its practical effect would be to tie the hands of future governments. The Bill fosters a climate of defensive, box-ticking governance by requiring ministries to continually review and justify laws against rigid criteria. Bold or innovative policies, especially those aimed at addressing inequality, protecting the environment, or honouring Treaty commitments, could be chilled by fears of judicial review or political backlash for breaching the Regulatory Standards Bill’s principles. Rather than empowering lawmakers to balance diverse public interests, the Bill imposes a culture of constant justification wherein economic efficiency must be proven for any action. This elite-driven conception of “good regulation” would likely stifle the proactive government intervention often needed to protect vulnerable communities or the environment.
Public participation and accountability also stand to suffer. The Regulatory Standards Bill has progressed with minimal public engagement, in part due to its complexity and arcane presentation. When a late 2024 consultation was held, an overwhelming number of submissions (nearly 23,000, with roughly 88% opposed) poured in at the last minute. The limited debate raises concerns that New Zealanders are getting a significant shift in governance without informed consent. It’s also worth noting that ACT has attempted to pass similar legislation multiple times before, including the Regulatory Standards Bill 2011 and the Regulatory Responsibility Bill 2006, both of which failed to gain traction. This history highlights not only sustained public and political resistance, but also the party’s continued determination to push the Bill through despite repeated rejection.
Meanwhile, supporters explicitly see the Bill as a way to make it harder for certain laws to pass. Bryce Wilkinson of the New Zealand Initiative admits it is intended to add “hurdles to jump through” for regulations the framers deem unsound. This philosophy may appeal to those hostile to government intervention, but it directly undercuts democratic flexibility. In a representative democracy, if the public elects a government to ramp up climate action or address social inequities, that government’s ability to legislate could be hampered by the Regulatory Standard Bill’s pre-set constraints.
Crucially, the Bill could reduce government agility in crises. Effective regulation often requires speed and flexibility in response to emergencies, as seen during the COVID-19 pandemic, when swift public health measures and economic support were crucial. Under the Regulatory Standards Bill’s regime, urgent actions might be delayed, challenged, or discouraged if they don’t neatly conform to the economic principles (for example, incurring high expenditure or limiting certain liberties). Legal commentators note this rigidity could stymie efforts to address urgent issues like pandemics, financial crises, or climate emergencies effectively.
While the Bill does not directly empower courts to strike down bylaws, it requires all secondary legislation, including council bylaws, to be assessed against fixed regulatory principles. This could open the door for legal challenges or declarations of incompatibility where local rules are perceived to conflict with those economic standards. Power would be centralised as local authorities hesitate to act without exhaustive economic justification, even when their communities demand it. The Bill risks eroding local autonomy and responsiveness to community issues by prioritising a uniform economic rubric over context-specific needs. In sum, the Regulatory Standards Bill’s straitjacket on policy could leave New Zealand less able to respond democratically to both everyday social needs and extraordinary events.
Conclusion
While the Regulatory Standards Bill is presented as a tool to enhance legislative accountability and transparency, its underlying purpose is far more concerning. Beneath its technocratic language lies an ideological attempt to restrict democratic decision-making and elevate free-market principles above broader social, environmental, and cultural values. This Bill requires serious scrutiny and, if necessary, rejection to safeguard Aotearoa’s democracy.
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