Thank you, Madam Chair. Part 2 is divided into a series of subparts, and I will briefly describe each one of them, their purpose, what they do, and why they’re in the law.
Subpart 1 consists of clauses 8 and 8A. That is the principles of responsible regulation, and this is a key part of the legislation, setting out that responsible regulation should be consistent with the rule of law. It should not unduly diminish a person’s liberty. It should not take or severely impair or authorise the taking or severe impairment of property without the consent of the owner, and it goes on to give some conditions for that. Taxes, fees, and levies should be consistent with the Constitution Act, but also there are a series of criteria for setting out taxes, fees, and levies, with the effect that the people who benefit are those who pay them, and people are not taxed or levied for things that they don’t directly benefit from. The role of the courts is upheld and preserved as the arbiter of decision making, and there’s also a section in the principles on good lawmaking, which involves consultation, problem definition, cost-benefit analysis, and consideration of other alternatives. There is, finally, the other principles, standards, or guidelines. There’s a clarification that was added during the select committee process that says, “The principles … do not limit or affect any other principles, standards, or guidelines relating to the development of high-quality legislation.”
I will address one criticism of the principles that has been in the public domain, and that is that the principles are a limited or selective range of principles, and that a Government might pursue other objectives, such as upholding Te Tiriti o Waitangi, equity, public health, or perhaps environmental protection. Those are generally goals that I would describe as collective action. In fact, I remember being here when Jacinda Ardern stood right there and said that we do together, as Government, things that we cannot achieve alone. When the Government is introducing legislation or making secondary legislation, it’s reasonable to assume that they already have a collective objective, such as the ones that I just described. The purpose of these principles is to highlight and bring to the attention of the House, in line with the purpose of the bill, the impacts of that collective action initiative on the individual—their rights, their property, their liberty—and to check that the law has been made carefully and is consistent with the rule of law. I think that if that was better understood, a lot of the criticism that people have made of the bill might just dissipate a little. Hope springs eternal.
Subpart 2 applies to how the principles apply when developing legislation, and it sets out that when a bill is introduced, it should have a consistency accountability statement. It talks about the consistency of a Government amendment of the principles and when that applies, and also, in clause 12, when a Government amendment does not require a consistency accountability statement. It then goes on to talk about the application of the bill and the principles and the requirement for consistency accountability statements with secondary legislation.
Subpart 3 relates to what you might call post hoc stewardship of the existing stock of legislation, as opposed to the flow of new laws and regulations. That requires Government departments to make a plan, which some people have said will add a lot of cost and is somehow radical, maybe forgetting that Government departments are already required to have these stewardship plans. Much like other regulatory initiatives, such as regulatory impact statements, they haven’t been adhered to in the way that we hoped. What this law is really doing is highlighting and requiring Governments to do things that in theory they do, but in practice they have not been doing. I note that Megan Woods, a very experienced member, referred to that frustration in one of her earlier contributions.
We then come to Subpart 5, which makes the point, as referred to by Dr Duncan Webb in Part 1, that the Act does not confer or impose legal rights or obligations. That is certainly true; however, Duncan Webb helpfully answered his own question in an earlier part when he said that there are sometimes laws that you are in breach of but you do not necessarily face a consequence. It’s interesting that most New Zealanders actually don’t follow the law because they think they’ll be punished. Most people don’t shoplift, and the reason is not that they think they’ll be caught; it’s that they actually think it’s wrong to take other people’s stuff. There is power in having laws that people will follow, even if they do not believe that they will face a consequence. None the less, there is some real power in Parliament requiring Government departments to do something. Generally, Government departments do try to follow the law.
Subpart 6, in clause 27, sets out guidance and the criteria for the regulatory standards ministry, which, of course, at this point, is going to be the Ministry for Regulation, to set out guidance so that people completing consistency accountability statements—that is, people within Government departments and Ministers—know how and are able to produce these consistency accountability statements. There will be a lot of background to help them do that.
Finally, Subpart 7, which I think is the last subpart in this section, sets out the role of the Regulatory Standards Board. Part of the history here is that the Regulatory Responsibility Bill and the Regulatory Standards Bill—predecessors, if you like, of this piece of legislation—envisaged a role for the courts where they would be able to judge whether a consistency accountability statement, as it’s now called, had been correctly compiled in alignment with the principles. The Government has a view that in further empowering the courts to judge Parliament’s Acts, and perhaps judge Parliament’s Acts against each other, it may be unwise. That comes off the back of the declarations of inconsistency. That was made necessary, and Parliament agreed to that after, I think it was, the Make It 16 court case.
The Regulatory Standards Board has two advantages: (1) it’s not a court, and (2) it’s more likely to have people appointed with expertise in regulatory economics. One of the criticisms of the bill was that judges aren’t necessarily the best people to make these kinds of judgments, so you can get a broader skill set for assessing public policy work with the Regulatory Standards Board. Subpart 7 sets out the appointments, that the board must act independently, and how it’s appointed. Of course, there have been changes made through the select committee process—for example, saying that the Governor-General, on the recommendation of the Minister, must appoint members to the board. This kind of separation, also changing the way that they’re appointed and the length of time they’re appointed for, is designed to address criticisms that were made during the select committee stage that, perhaps, the Regulatory Standards Board would not act with enough independence. I welcome these changes, because I’ve always wanted the Regulatory Standards Board to act independently.
That is a summary of the seven subparts of Part 2, their various purposes, setting out the principles, explaining when the principles apply to the requirement for a consistency accountability statement, explaining what the legal implications of the consistency accountability statement, and, indeed, the broader bill, are, and setting up the Regulatory Standards Board, which is there to judge the quality of work done on the consistency accountability statements in order to comply with the Act. I hope that is a helpful summary to the House, and, of course, I’m very happy to address genuine questions and amendments that members may have.