'Footnote in history': Constitutional experts shrug off Regulatory Standards Bill tweaks

Constitutional experts say changes to the Regulatory Standards Bill do little to address its failings, and the ideological way it's been written mean it's unlikely to have lasting impact.

New Zealand First is also promising to campaign on further changes, so even if the coalition wins power - delaying the law's repeal - it may end up looking quite different.

The Bill's champion David Seymour, speaking about the amendments proposed by the select committee said they were "win-win".

RNZ understands the changes mostly came from New Zealand First. Seymour in July pointed to the wording of the coalition agreement guaranteeing "The" Regulatory Standards Bill be passed - signalling he believed his partners could not demand changes.

He brushed off questions over whether the changes therefore represented a backdown.

"I don't talk about epithets: whether it's a backdown or minor tweaks. I'd rather talk about the substance. All of the principles are still there. The workings of the bill are still there, and the changes, if anything, strengthen the bill."

Seymour suggested the bill passing by the end of the year would improve the democratic system.

"Look, this has been a lot of work. There's been a lot of fear campaign but at the end of the day all we're going to see is much stronger accountability to Parliament when a government wants to make a law that's going to restrict people's property rights. That's a vitally important thing for any democracy."

Victoria University of Wellington law professor Dean Knight, however, did not expect it to have lasting impact.

"I think it will be a footnote in history," he said.

"It's been a pet project of one particular party for decades and anybody who's fairly looked at what's been trying to be achieved has pointed out that it's going to fail constitutionally to improve the quality of legislation, and it's hardwiring - in a particular ideological view."

The changes from the select committee, he said, were "only marginal".

"In my view, the select committee report is further evidence that this bill is a dogmatic project designed to politically skew the process of lawmaking, rather than being a genuine attempt to improve the quality of legislation and regulation or usher in a new constitutional framework for good law making.

"It's going to fail as a constitutional instrument because it doesn't make a genuine good faith attempt to try and improve the quality of legislation and improve regulation. It's about ushering in a particular ideological view about what the state should be regulating and how - and it won't endure beyond the current government."

Otago University professor Andrew Geddis was similarly sceptical of the bill's long-term impacts.

"If there's a change in government this bill will go - and it will have only been in place for a few months, and then we'll go back to the way in which these issues were dealt with previously.

"If the current government is re-elected and there's been another term where this bill is in operation and it sort of start to get baked into how government works then possibly it could become seen as 'well, yes, this is just how we go about legislating' ... if the bill was effective in bringing about that sort of cultural change, you'd expect it to persist for at least a while after the underlying legislation was repealed."

The changes

Submitters had three main criticisms of the bill: that it puts ACT's ideology over other relevant principles including those in Te Tiriti o Waitangi; that it could tilt the playing field in favour of big corporations; and it would only increase cost and delays to lawmaking.

The Finance and Expenditure Committee made its recommendation for amendments on Friday:

• That compensation should be provided for the taking of property only in "severe" cases
• Making clear that principles not included in the bill - like the Treaty of Waitangi - can also be considered where relevant
• Making clearer that Marine and Coastal Area legislation, and Treaty Settlements including mātaitai reserves are excluded, with the legislation to be excluded to be specifically listed
• Delaying the establishment of the Regulatory Standards Board - which would oversee reviews of regulations - to after the Regulations ministry provides benchmark "Consistency Accountability" statements mid-2026
• The board and chair would be appointed by the Governor-General on the minister's recommendation, rather than directly by the minister
• Board members' terms would be changed to five years, to be in line with the Crown Entities Act (CEA), rather than three - and members' removal to also for "just cause" in line with definition from the CEA, rather than entirely at the minister's discretion, with reasons provided
• The bill would be amended to make clear that the board must act independently

Prof Geddis said lifting the threshold for compensating "takings" - where law changes impact people's ability to enjoy what they own - to "severe" only raised further questions "of when some sort of regulatory impact on property rises to that level".

He said the Supreme Court had previously ruled something only counted as a taking if "it's so all-encompassing that essentially you can't use your property at all" and it was unclear if that definition would continue to be used under the "severe" threshold.

Dr Knight said the change was "window dressing at best".

"The idea of regulatory takings is controversial, and internationally it's something which has not been in the democratic traditions of Aotearoa New Zealand, which generally use the threshold of actual expropriation of land to trigger compensation."

On the changes to clarify that principles not included in the RSB could also be considered, he said the principles in the RSB would still have priority.

"When you actually start building in a framework that has at its heart contested ideas about what is the model of good law making, that's going to skew the pitch.

"The fact you've spelt out in neon lights that these other principles - which are hostile to some of the good work that Te Tiriti-informed lawmaking does, does privilege a particular model of lawmaking and risks sidelining those other things which aren't spelt out in the same way."

Prof Geddis said making the Regulatory Standards Board more independent was a good move, but having the Governor-General make the appointment on the minister's recommendation may not go far enough.

"Yes, the board will act independently. But if you've filled the board with people who are sympathetic to your world view, it can act independently and still give you what you want."

He said the changes brought it into line with the standard model for independent Crown entities, but "this is a board that is going to be passing judgment on legislation ... so it is slightly different to an independent crown entity".

"You might expect that the membership would be appointed not by the government necessarily but by the Parliament, which ultimately passes law.

"If these principles are genuinely universal - principles that are just basic good principles of lawmaking - then you'd expect all the parties should be able to agree on who is best to judge that question."

Destined for the scrap heap?

All three opposition parties have vowed to repeal the Regulatory Standards Bill, so if there is a change of government it would be scrapped.

Prof Geddis said if the coalition won power again it could get "baked in" to the lawmaking process.

"You would expect that officials when they're giving advice ... say 'we want to try if at all possible to make our legislation proposal consistent with these principles so that our minister doesn't have to make a statement to Parliament and to the world that these principles have been ignored.

"If the bill was effective in bringing about that sort of cultural change, you'd expect it to persist for at least a while."

Even if the coalition won power again, NZ First leader Winston Peters indicated the bill was likely to change.

"We got it much better than it was, and at the next election we will fix it," he said. "Our job is to have stability in the government but at the next election we will fix that."

He refused to share what changes he might campaign on, however.

Labour and the Greens both laid out their concerns in "differing views" included in the select committee report.

Te Pāti Māori also remains opposed, but failed to provide its differing view by the deadline.

Labour maintained the bill "does not have the support of New Zealand", pointing to the 98.7 percent of submissions that opposed it "from all quarters", and listed concerns including the exclusion of Te Tiriti o Waitangi from the listed principles; that those principles were selective and contested; that it protects private interests over collective benefits.

The party said the bill "will harm the environment", was "inconsistent with international human rights law", would make it harder to make good law and undermine the independence of Parliament.

"It is deeply concerning that a fringe party has, through coalition negotiations, secured a significant change to our constitutional framework, and is pushing it through in a largely unchanged form despite overwhelming advice and submissions recommending against such an approach," the party's report said.

"It is unworkable, ideological, and deeply flawed. While improving regulatory quality is an appropriate policy goal, this bill will not achieve the goal and may in fact have the opposite effect."

Leader Chris Hipkins made clear the changes did not go far enough.

"No. The bill is fundamentally flawed."

The Green Party's submission also raised concerns about the overwhelming opposition from submitters, agreeing with some that the bill would breach the principles of Te Tiriti, limit protections for nature, undermine protections for ordinary people, and lead to "a tsunami of unnecessary yellow tape".

"We acknowledge that there have been changes during the select committee process such as the shift of language from 'impairment' to 'severe impairment', but we think that this still creates a chilling effect."

Co-leader Marama Davidson also confirmed the changes did not do enough to address their concerns.

"No, of course not. It is still centring corporate interests over local decision making, over Tiriti justice, and over environmental safety."

Te Pāti Māori provided a statement to RNZ which would have formed its own differing view submission.

It too highlighted concerns about excluding Te Tiriti o Waitangi and tikanga Māori from the country's regulatory framework, and said the bill would allow for judicial interference in the policy-making process.

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