Regulatory Standards Bill – Trojan Horse or Unbelievably Boring Bart?

You might remember that I used some pictures from Alice in Wonderland and 1984 to illustrate some of the fundamental problems with the Treaty Principles Bill, in part to demonstrate that David Seymour’s carefully-curated goofy everyman image obscures a strongly authoritarian streak – when he says libertarian, he doesn’t mean liberty for YOU.

I have tried to find some suitable similar images to help illustrate the evil that sits behind the Regulatory Standards Bill. The obvious allusion is to the Trojan Horse – hidden inside something that looks like it should be welcomed are enemy soldiers (or malware to refer to the more modern version). But the Trojan Horse metaphor isn’t quite right. For one thing, there aren’t throngs of people welcoming the Bill. You will have heard that almost all of the submissions made on the discussion document opposed the advancement of this Bill (just 0.33% of submissions  – 76 in number, no doubt from ACT Party members, astroturf organisations and the Business Roundtable – supported it). 

The other problem with the metaphor is that in the case of the RSB the enemy soldiers aren’t actually hidden, they’re in plain sight. There’s a trope in science fiction and in some children’s literature of a person who is so boring and dull that they are invisible to others, and able to get away with anything. This is obviously something that’s more difficult to illustrate (!) but is probably a better metaphor.

Part of the problem in addressing the Bill is that it sounds dull but inherently a good thing – ensuring that regulation meets certain quality requirements. Actually, though, it is one of the three legs of the ACT Party’s agenda to fundamentally change the society in which we live. The ACT Party is pursuing the privatisation of public assets, they are pursuing the privatisation of what are currently public services (like health and education), and the point of this Bill is deregulation – to elevate private property rights, including those of companies, into a quasi-constitutional status, over and above considerations such as public good, community welfare, environmental protection, health and safety and the Te Tiriti o Waitangi. Regulation (both statute and regulations issued pursuant to a statute) is too often dismissed as unhelpful or obstructive red tape. In reality regulation is the usual way that society restricts and directs behaviour to protect the vulnerable and advance the common good.

If the Bill were to be passed in its current form these regulations would fail the standard set unless we could show that they were necessary to protect the liberty, freedom or rights of another person. “Necessary” is a very high standard in law: it requires that the objective could not be met without the measure. Be aware too that ACT has a very different idea of what “rights” are.

There are some things in the Bill that are laudable. For example, it’s a good idea to clearly state what problem regulation is attempting to solve, and to properly explore all the alternative ways of addressing it. It’s a good idea to have regulation worded clearly and unambiguously. It’s a good idea to properly seek the views of those who will be affected by a proposed regulation. There should be an avenue for reconsideration of regulation that is claimed to be unfair. But the problem is that all this already exists (Regulatory Impact Statements, the Legislative Design Advisory Committee, the Regulations Review Committee, Judicial Review, Cabinet Manual and so on). While it’s always possible to make further quality improvements, the good parts of the Bill are essentially unnecessary duplication 

But, of course, the Bill isn’t really aimed at achieving better regulation; it’s about having less regulation, and having what regulation remains consistent with the political values of libertarianism and the ACT Party. 

The importance of the Bill to ACT’s privatisation and deregulation agenda is shown by the doggedness with which they have pursued it. The idea for a Bill like this originated with the Business Roundtable (now the NZ Initiative) and ACT has tried, and failed, three times already since 2001 to advance essentially the same Bill. Once it failed its First Reading and twice it went to Select Committee, where it was rejected unanimously. The expert advice, including from officials, and submissions on those previous attempts give us some useful analysis of the Bill. They agree that it represents unnecessary duplication, adding little if any value (“ineffective and unnecessary” according to Treasury), they say the cost of implementing may outweigh any benefit, and that the risk of unintended consequences is high. Professor Richard Ekins at the University of Auckland, called it “hostile to our democratic constitutional order”. While of course we haven’t yet seen the submissions made on the Bill, experts are once again sounding the alarm about this latest attempt. The Ministry for Regulation has been responsible for developing the Bill, under the direction of its Minister, Hon. David Seymour, and – extraordinarily – even they have recommended against the Bill, noting that it’s unclear what problem the Bill is intended to solve, and that to the extent that a problem exists, the Bill is not the best way of addressing it.