Regulatory Standards Bill

We come first to the Regulatory Standards Bill. We begin with Part 1, the debate on clauses 3 to 7, “Preliminary provisions”, and Schedules 1 and 1A. The question is that Part 1 stand part.

Thank you, Mr Chair. This part sets out the purposes, overview, and interpretation, and also refers to certain legislation that is not considered by the Regulatory Standards Bill—or Act, as it would be. I do not intend to adopt any of the Opposition amendments that I have seen on this part, although there is a single amendment in the name of the Minister, which makes some minor and technical changes.

The purpose clause sets out the purpose of the bill, which is best expressed in clause 3(1), which says, “The [purpose] of this Act [is] to—(a) promote the accountability of the Executive to Parliament for—(i) the development of high-quality legislation; and (ii) the exercise of stewardship over regulatory systems;”. It’s also to “support Parliament’s ability to scrutinise Bills; and (c) support Parliament in overseeing and controlling the use of delegated powers to make legislation (see Part 5 of the Legislation Act 2019).” It goes on to give a range of ways that those purposes are given effect to.

The overview, which is the next clause, gives a summary of the clauses of the bill. I intend to answer questions on the substance of those clauses in Parts 2 and 3, where they are found. I don’t intend to engage in any debate on those clauses through this part—however, perhaps on the wording that describes those parts in Part 1, under that overview clause.

The interpretation gives a series of definitions, which I think most people would describe as selfexplanatory. This part finishes by referring to legislation that the Regulatory Standards Bill would not apply to, as I said at the outset.

Just mind, given what the Minister has said, it will still be up to the Chair to determine which questions will be accepted and how that will relate to closures, just to clarify that.

Yes, thank you for that clarification, Mr Chair. I’m sure the Minister wouldn’t be so arrogant as to say he wouldn’t answer questions on any given section, because every section, of course, is part of the legislation and properly appropriate for debate in this House and scrutiny in this committee of the whole House stage.

Of course, the “Purposes” section is of critical importance because it is, in fact, the guiding light for the overarching bill. When anyone should come to look at the bill, whether it be a judge or a bureaucrat—and there’ll be plenty of them under this bill—then that is what they will look to. I mean, I guess I would invite the Minister to be a bit more frank about the purposes of this bill, because, as the Legislation Design and Advisory Committee said, the principles—

CHAIRPERSON (Greg O’Connor): Sorry, just before that, Minister, can I remind you that when you speak or answer a call, it’s going through the microphone. I’ll ask you, please, to be aware of that, because that means that your replies are going out across the House and also across the broadcast. Thank you, please.

Hon David Seymour: That’s extremely useful to know. Thank you.

Hon Dr DUNCAN WEBB: Well, and my point, Mr Chair and Minister, was that the “Purposes” section is the guiding light, and as the Legislation Design and Advisory Committee said, the principles found in I think it’s clause 8 are contested and selective. In fact, for the purposes, I would put to you that if you’d like to take a call and explain what the purpose of this bill is, given the fact that you’ve got these property-tilted principles in the bill.

I put it to you that, in fact, if you look at the genealogy of this bill, the scholarship around it, and the work that you and your party have done across many bills, what this bill is, is it’s trying to be a bill of rights for property. In fact, the purpose of this bill—the real purpose of this bill—is to put into our law the pre-eminence of two fundamental libertarian principles, which are the primacy of property and the primacy of individual liberty—two foundation stones of libertarian ideology. I would suggest that if we were to actually be upfront, we would adopt one of my Amendment Papers which would actually articulate the genuine purpose of this bill.

Minister, you yourself have said that you think this bill should be like the Public Finance Act for legislation, and that is a constitutional piece of legislation. What we have here, then, is a piece of legislation of the same ilk. It sits alongside those other pieces of legislation about how Government and legislation works and imbues certain principles into our entire legislative framework, so that the work that we do in this House is no longer principle-neutral. It is no longer value-neutral. It’s not up to any incoming Government to choose their value set. They get judged against a value set that you have put in this bill. The two headline values are private property, no confiscation without compensation—that classic libertarian principle—and the primacy of individual rights and liberties, and simplistic equality.

Why don’t we just say in the purposes section that the purpose of this bill is to promote these principles which accord with your party’s value set? That would be a lot more honest and upfront, rather than pretending, because we know all of the advice that your ministry has given you says this is a bad idea. This is not the way to go about good stewardship. We’ve got the tools there. Let’s bolster them. To say that this is about the exercise of stewardship over regulatory systems is duplicitous. In fact, it’s the opposite. This is a way to clog up the system, to make it harder to pass laws that we like and you don’t.

Thank you, Mr Chair. As you can see, I am here with our full migrant caucus, standing for Te Tiriti.

Hon Member: Where’s Lan?

Dr LAWRENCE XU-NAN: Good point. Where is Lan? I want to first just actually thank the Minister, in terms of outlining the purpose of this bill, because I think the Minister’s right that the purpose of this bill does set out quite nicely in terms of what is expected of the executive and what is expected of Parliament’s ability to scrutinise bills. I think that’s incredibly important, and that I wholeheartedly agree with. I think the Minister then would appreciate that we don’t want the Minister to inadvertently contradict his own bill by the Parliament—i.e., this House—providing a full scrutiny of this bill. I think the Minister will be also prudent to understand that, as legislators, it is our role to examine the Minister as part of the executive.

But in terms of my questions, my first question is something that was raised a number of times during the select committee process, which there wasn’t a response for, which is: what does the Minister actually mean when we’re talking about high-quality legislation? The definition of “highquality” is not something that—potentially it could be defined later. We want to go clause by clause, so I’m not anticipating what’s in a later section or later part at this stage. But, also, in terms of what we are seeing in clause 3(2) when we’re looking at the purpose of this bill is to give effect “by setting out principles of responsible regulation”. I think it’s also important when we’re looking at whose responsibilities we are referring to.

I think I will start with those two broader questions on the definition of “high-quality” and the definition of “responsible”.

Thank you. Just following up on questions in relationship to clause 3(2), I’ve noticed that there are some definitions in there, but it seems to me like “high-quality” wasn’t defined in the bill, and so I’m just wanting to get an explanation as to what definition the Minister would be using when it comes to high quality.

The previous member from Labour, the Hon Dr Duncan Webb, who spoke about being valuesneutral, raises a good point around the fact that in most of the legislation, this is clearly not values-neutral; there are clearly a set of values that are being pushed forward by the Minister. For example, in clause 3(1)(a)(i), “high-quality legislation” does not seem to be defined, and the concern that I have around that is clarity from the Minister as to why he didn’t choose to actually put in a definition for what “high-quality” actually means. That could then be interpreted in different ways by other Governments.

If the Minister would like to elucidate—I know that he made his initial remarks that he wouldn’t really be participating in Part 1—I would invite him to engage on the commentary from the Hon Duncan Webb, my colleague Dr Lawrence Xu-Nan, and just on this, in relationship to some of the language that is used, particularly in clause 3, which lacks a definition. I wanted to ask why there are quite a few terms where it just seems like there is no sort of definition attached to them. Again, as Lawrence already noted, “responsible regulation” would be another one that just seems to be lacking a definition, and that’s really concerning as well.

The other part that I wanted to ask him about was whether, in the process of designing this bill, this was the whole range of purposes that he wanted to include in the bill; whether, initially, he may have thought of others and the process of the legislation meant that he had to trim it down, and that’s why we’ve ended up with this language, particularly in subclause (1), which doesn’t seem to be defined.

Just to recap, I’m really keen to get a sense of what he intends when he says “high-quality legislation” and whether he thinks that this should be defined in the section where some of this terminology later down the line is actually defined in the bill.

Thank you, Mr Chair. Just a short contribution from me in relation to the clause 3, “Purposes” section, clause 3(1)(c). I just have a question for the Minister in relation to the intersection between this clause and the reference to Part 5 of the Legislation Act 2019 within that clause. I’ve got a few questions for the Minister in relation to how he envisages, through the drafting of this legislation, that part of the Legislation Act impacting on the purpose clause of the bill. I’ve had a look at Part 5 of the Legislation Act. It refers to secondary legislation. It’s quite a substantive part of the Legislation Act, and it outlines quite clearly some significant powers in relation to delegated legislation and Parliament’s role.

The thing that I’m not clear about is that this is the purpose of the bill. This should be setting out exactly what the bill intends to do throughout its operation, and the reference here to Part 5 of the Legislation Act is simply to see that. I want to know: is he intending for the entire of Part 5 to be upheld through the overseeing and control powers in other parts of this legislation, or is Part 5 in the reference there simply a definition of the overseeing and controlling use of delegated legislation?

The Minister will know from his experience in the House that’s actually quite an unusual way of phrasing legislation, especially in a purpose clause. I think it is a valid and important question for the Minister to answer exactly what is the intention of paragraph (c) and how it relates to that Part 5 of the Legislation Act, which, as I said, is quite extensive.

If the Minister could clarify what the intention is—if it is consistency with that particular part, then perhaps there’s a different word that could be used. If it’s simply that that’s the outline of what the current responsibilities for Parliament in relation to delegated powers are, then I also think that that could be more correctly defined. I invite the Minister to explain the intention, and then, if there’s time, I wouldn’t mind engaging with the Minister over whether there would be a clearer way to reflect that intention within what is quite an important section of this bill.

Thank you, Mr Chairman. My contribution and questions for the Minister for Regulation are also focused on clause 3, and they are building on an earlier contribution that we’ve had from a Green member of Parliament. It is around this development of high-quality legislation.

Specifically, I want to ask the Minister—so this is in clause 3(1)(a)(i)—in terms of some of his thinking behind this. I think the Law Society’s very substantive submission made the very pertinent point that the word “quality” is not defined in the bill, and this term is not used outside of clause 3. I think it makes it imperative that the Minister does spend some time on what is quite a central part and a word that has been used about the problem definition by the Minister throughout the development of this bill: “high-quality legislation”. It’s not defined in the bill; it’s the word that is not used beyond clause 3 of the bill, so this is the only chance that this House will have to understand from the Minister what is meant by this in the context of this legislation.

The Law Society make some very good comments about the ambiguity that this “high-quality” is going to introduce into our legal discourse—that there will be disagreements between reasonable people, acting in good faith, about what social, economic, or environmental goals should be enacted in legislation. That’s a central feature of democratic politics, and something that we all come to this House and we debate on a daily basis. The quality of a given legislative regulatory proposal, in this sense, is appropriately resolved through a fair and transparent process. The House needs to know what is meant in the context of this law that we are now debating in the committee by this “highquality”.

One of the things that I would also be keen to understand from the Minister, given that we’re not going to have this “high-quality” word occur in any other part of the legislation, is the problem definition that led to this. Of course, we already have mechanisms within our lawmaking processes around the quality of our lawmaking, whether that be our primary legislation or our regulatory regime specifically. We’ve got the regulatory impact statements—how the Minister envisions that this is going to differ or, as my colleague Camilla Belich has alluded to and talked about, in terms of the Legislation Act of 2019 and the provisions that exist within that.

To understand from the Minister why it is that clause 3 has this term “high-quality”—what does it mean? Why is it not contained in any other part of the bill? What was his thinking behind there not being a definition of it in this legislation? Did he consider putting a definition of it into the bill so that there could be that certainty and to provide that clarity when we came to statutory interpretations of this bill—which undoubtedly there will be—and what was his thinking for omitting it from this bill?

Mr Chair, I’d first of all like to thank various members for their questions, some of which are quite similar, so I thought I would try to group them together in my answer.

First of all, we were asked about the definition of “high-quality” by multiple members. I think Lawrence Xu-Nan asked that, Ricardo Menéndez March asked a near identical question, and then Megan Woods also asked that question, while also asking a question about the interplay with regulatory impact statements, not dissimilar to Camilla Belich’s question. To address “highquality” first: it, indeed, is defined in the Act. If you read a little bit further on, it goes on to say that “The purposes of this Act are given effect to only by—(a) setting out principles of responsible regulation;”. There’s been an invitation to debate what the principles are, and, perhaps, the idea that the principles are the purpose—that invitation came from Duncan Webb. As I’ve indicated, I’m very happy to talk about the purpose in the correct part, which is Part 2. But for now, we can say that clause 3 refers to those principles, and it says that setting out those principles is one of the ways that we define high-quality legislation, which, in itself, is the purpose.

If you work that back the other way, the purpose is high-quality legislation; the purpose is given effect to by following the principles, as well as a series of other initiatives, such as providing for the review of consistency of existing legislation and also providing for a Regulatory Standards Board. You can find the answers to what high quality is later in the same clause—it is legislation that follows the purposes and the way that it’s given effect to—in just the next subclause after “high-quality” is mentioned.

There’s also a question about how this law will interact with Part 5 of the Legislation Act—what the relationship will be—and that was Camilla Belich who asked that question. Clause 5 deals with how Parliament can scrutinise secondary legislation. This bill—and, again, this comes in a later part—provides for consistency assessment statements. Those, you could think of as being similar to regulatory impact statements but guided more strongly by the principles set out in statute by this bill. It may be that the Government, if this law passes, will actually change the regulatory impact statement regime in order to accommodate consistency assessment statements; however, that’s not a matter for today. What will happen is that Parliament, in its role under Part 5 of the Legislation Act, will be more empowered by being able to access the consistency accountability statements.

A couple of things, really. I just want to pick up that I was not informed by the Minister’s response on the quality question, because he essentially said quality will be achieved if you do what is set out in clause 3(2). That just seems entirely circular, because there is no actual quality test in there. It might be that the Minister could elucidate, and it may be that—I don’t think it’s quite accurate—some of this bill is entirely procedural. So, did you consult? Was there a cost-benefit analysis undertaken? If we’ve got a surrogate for quality and the surrogate is a procedure—go through these various quality checks or procedural checks, better expressed as procedural checks—then perhaps that’s what we really mean.

But my concern there is that this isn’t just procedural, because there are two kinds—well, there’s actually three kinds of principles that we’ll get to later. One is procedural; one is value-based. You’ve got to consult as widely as possible—procedural. You’ve got to respect individual liberty—valuebased. Then you’ve got an outlier in there, which is make sure it will operationally work, which is operational. So you’ve got three kinds. Now, I could contemplate a piece of legislation or executive action—Attorney-General’s direction, Cabinet paper, which there exist already—which says: do these procedural things to achieve good-quality legislation. But that’s not what we’ve got. When the Minister does talk about quality, I think, to be honest, he should stand up and say, “It should adhere to my principles, including my value-based principles.”

But, at the end of the day, I mean, it’s actually a really verbose purpose section. If it’s just about quality, he could just say that. All this stewardship regulatory systems scrutiny—it’s actually just about improving the quality of Acts of Parliament and other kinds of legislation. One of the things that struck me, because this is such an offensive bill, is it’s used obscure language to try and hide what it’s doing. If it was doing something acceptable, you could adopt one of my Amendment Papers, which is to say the purpose of the bill is to improve the quality of Acts of Parliament and other kinds of legislation, or you could add, if you wanted to, some words on to the end of that and say, “and adhere to libertarian value principles”. That would be another way to frame the actual purpose of this bill. But the drafting of this purpose section is verbose in the extreme.

In a lot of my Amendment Papers—and I was really disappointed when the Minister, who clearly hasn’t read the Amendment Papers that have been tabled, just stood up and said, “I’m not going to adopt any of them.” I suspect, as we go through them one by one, we’ll find some which are actually quite useful, and I’d invite the Minister to bring an open mind. I know that it’s traditional for Ministers to kind of put their own Amendment Papers in and steal our ideas, but that’s OK by me if we improve, if it’s possible, this piece of legislation.

In clause 3(2)(d), which talks about providing support to the regulatory standards ministry, I think we should actually give a bit more guidance and we could actually talk about the work of the Legislation Design and Advisory Committee. That’s one of my Amendment Papers as well, because the Legislation Design and Advisory Committee actually gives substantive guidance as to what quality really is, and I think to use an external and objective measure of experts rather than kind of bringing this politically charged bill to the House, it would have been something we could quite possibly have agreed on. I would suggest we do look at including the advice of the Legislation Design and Advisory Committee in the purpose section.

Thank you, Mr Chair, for allowing me to take my first call on this bill. My questions are around clauses 3(1)(a), (b), and (c), which are around the purpose of the Act. Just to check my understanding of the Minister’s intention of the legislation, the Minister has said, in his second reading speech, that the purpose of the law is to promote accountability and transparency to the Parliament by the executive, and that’s reflected in subclauses (1)(a), (b), and (c).

Now, from this, we are to glean that the kind of idea of this bill, and maybe of the wider Regulatory Standards Board, is perhaps to see it as one of the Offices of Parliament. My question is: did the Minister look at alternative models for how the board could have been appointed and alternative models for how different functions and how different set-ups could have accommodated the function of this Act and the function of the Regulatory Standards Bill to support the task of Parliament in scrutinising legislation?

If I look back to other potential precedents and other potential models that the Minister might follow, there is the Parliamentary Commissioner for the Environment, and, of course, the appointment process for that is that all the parties in the House are consulted on that and then the Governor-General makes an appointment based on the recommendation of the House, and the Parliamentary Commissioner for the Environment is then appointed for a five-year term. That’s one possible model. Did the Minister potentially look at that model when the legislation was being drafted, in terms of aligning the purpose of the Act with what actually ended up getting drafted?

The other potential model that the Minister could have looked at is the design of the Climate Change Commission’s board, where the boards are appointed on a rotating basis by different Governments. I think it is something like two-on, and then two-on, across a three-year term. Their terms are staggered so that no Government is, essentially, able to dominate the make-up of the board. I appreciate that the board make-up is referred to later in the legislation, but I’m asking in the context of the purpose of the Act and whether or not the form that ended up defining the board’s make-up actually relates to the function as defined and articulated by the Minister in his various speeches through the readings and also through clauses 3(1)(a), (b), and (c) of the bill.

Thank you, Mr Chair. I’d just like to reiterate what my colleague the Hon Duncan Webb said in terms of the circular nature of the definition of “high-quality” that the Minister has given us, that hasn’t really provided the House with that clarity. This is put out as one of the main purposes of the legislation. The Law Society put in a very substantive submission, particularly around this clause 3, and the fact that this is the only place in the legislation where we will have the opportunity to scrutinise that. To give us the circular argument that “Quality legislation is one that follows the principles set out in this bill.” doesn’t give us any insight into what the Minister’s policy thinking is around “high-quality” legislation. This is of course a subjective term, and the House needs to understand more about what the Minister was thinking.

But my questions now for the Minister are moving on to clause 4 of the bill. This is the review of new legislation—the provisions that are provided in clause 4 around that. Clause 4(1)(b) “provides for the explanatory note of a Government Bill, a Government amendment, or secondary legislation to include (or link to) the following … (i) a consistency accountability statement. This statement is made by the chief executive of the responsible agency for the legislation. It confirms that the agency has reviewed the legislation for consistency with the principles and summarises any inconsistency that is identified in the review.”

Now, we in this House know that it is not without precedent that bills come to this House for debate without a regulatory impact statement. What I would like to know from the Minister, in terms of the working of this legislation, is what if a bill comes to this House without a consistency accountability statement? For example, will we have consistency accountability statements for urgent legislation? Will all ministerial Amendment Papers be required to also have that? I know it says in clause 4(1)(b) that it would include amendments, but what happens if they don’t? That’s really what we need to understand in terms of the working of this legislation.

I think probably when we’ve been, rightly, asking questions around what is the policy intent, the problem definition work that the Minister went through with his officials in terms of why not just fix the current system that we have, a big part of that is the regulatory impact statement (RIS). I think, on this side of the House, we’d be the first to acknowledge that actually one of the problems with the regulatory impact statement system is that, actually, sometimes it’s just not used, and we have bills landing here without the House having the ability to understand that work that has gone on within that RIS system that can already inform us how it interacts with other legislation, what officials have raised, what the regulatory impacts are going to be. Just on clause 4(1)(b)(i), the consistency accountability statement, I look forward to hearing from the Minister more around his thinking on that and what happens in its absence.

But also, I do reiterate that I do not consider that this House is adequately informed about what the Minister’s thinking is around “high-quality” legislation, and we will not have the opportunity to return to this question. It is only clause 3 of this bill that contains that word.

Thank you, Mr Chair. Like other colleagues, I am also equally dismayed at the Minister’s very quick dismal of some very excellent amendments proposed by my colleague the Hon Dr Duncan Webb, particularly so given the wave of opposition to this bill. If one were concerned with process, one ought to have had regard for the very comprehensive amendments proposed as a result of that process, and I am dismayed that that doesn’t appear to be the case this evening.

My question is also in regards to clause 3. This is setting out principles of responsible regulation. When I read this the first time, I think what stood out to me was the absence of the word “the”: setting out “principles” of responsible regulation as opposed to setting out “the principles” of responsible regulation. The reason it stood out to me is that it leads you to question what the scope of those principles is and what the genesis of those principles is, and what’s being actively excluded—whether the Minister believes this to be an exclusive list of principles, or whether the Minister’s view is that there are other principles and the Minister has cherry-picked the ones he wishes to include for this particular assessment. Of course, the question then begs: why these principles and not others?

The link later in the bill, of course, cross-references the rule of law—so it sits the principles as akin to principles of the rule of law—but looking at the history of lawmaking and commentary on what the rule of law is, there is frequent reference to a set of human rights principles and human rights being integral to what the law is. Arguably, there are principles within the Minister’s cherry-picked set that don’t fall into what we accept as the rule of law, certainly in terms of the case of international law and the principles we have accepted in other guidelines that are applied to legislative drafting. They reference international conventions, they reference the declaration of human rights as well, and that is where the law is drawn down from.

It would be useful to hear from the Minister why he chose not to include the word “the”; if there is a belief that there are other principles that sit outside the scope of these principles, why those other principles were excluded; and from what space he is drawing down, what the genesis is for, some of these principles that he’s drawing down—recognising that we have, for example, the New Zealand Bill of Rights Act, where it’s very clear that those principles are drawn down from the International Covenant on Civil and Political Rights, and there are clear obligations that flow down through that. They could be seen to be affirmed as principles of the rule of law because of a process of affirmation that happened domestically as well.

The Minister is laughing, but what I mean by that is that the New Zealand Bill of Rights Act was campaigned on by two Labour Governments. The public was very familiar with it, and understanding what the rule of law is—it’s not just substantive; it’s also about the familiarity of your population with a set of principles. Again, I’m asking the Minister what the narrative of that process is that makes him believe that the principles he has adopted have the same status as those within the New Zealand Bill of Rights Act, which had not only that linking to international law—(a)—but also had, (b), that process affirmation of having been socialised and familiarised with New Zealanders and New Zealand culture, having withstood two elections to get through to legislation. That gives them the legitimacy of being able to call those values part of our rule of law and part of good principles.

First of all, Duncan Webb and Megan Woods have argued that my definition of “high-quality legislation” is circular. That is a mistake. Actually, what I’ve said is that high-quality legislation is, among other things, adherent to the principles, which can be found in Part 2. Vanushi Walters spent a lot of time debating the principles. As I’ve indicated, I’m very happy to do that in the appropriate part, which is Part 2. For our current purposes, in the preliminary provisions, there is a reference to the principles, but their content or definition is in another part, where I’ll be really happy to debate it.

Fernando Hernando asked me—

Hon Members: Francisco.

Hon DAVID SEYMOUR: Sorry. Francisco Hernandez—sorry.

Francisco Hernandez: Everyone gets it wrong.

Hon DAVID SEYMOUR: Well, I’m sorry to be everyone. He asked had we considered other prospects for structuring the Regulatory Standards Bill. We might well have, but the purpose of this debate is to see whether the legislation, as written, accords with the principles and objects agreed at the second reading. Certainly, what we said at second reading is we would have a Regulatory Standards Board, and I believe that as it’s written, it does comport with those principles and objects agreed at second reading, and I don’t intend to make changes to that at this time. I also refer to Speakers’ rulings which forbid members from speaking extensively about material that is not in the bill or hypothetically could have been.

Thank you, Mr Chair. I just want to touch on one thing. I won’t spend much time on the overview section, which does seem a little excessive, given it’s a relatively compact piece of legislation. But, anyway, it is there. One of the things it says in clause 4(1)(h) is that the “the Act does not confer or impose legal rights or duties or affect the validity of any legislation”. I must say that I find this, really, one of the oddest approaches. What this House does is pass law, right? And what law does is create, in some way, legal rights and obligations or duties. This bill has been compared, and its predecessors have been compared, to the New Zealand Bill of Rights Act. Now, that legislation does not affect the validity of any other law. That is well established. I can understand why you would say we’re going to have these principles and we’re going to have these obligations and one of the obligations is follow the principles and do your consistency accountability statements, but it doesn’t affect the validity of any other law.

I accept the Minister will no doubt explain in further detail, either now or later, that there is a small chunk of the Act which is about the work of the Regulatory Standards Board, essentially, asking for information and undertaking inquiries, for which they do have legal powers, but the important part of the Act is that you must provide these consistency and accountability statements, that you must consult, and that you must comply with these principles. To say that it doesn’t create any obligation at all is to say we’re passing a law which is in fact the opposite of a law. It’s a suggestion, it’s an exhortation, but it’s not an obligation.

To be perfectly honest, either we have a framework where you are obliged to do things—you can have obligations for which there is no consequence for a breach. It’s well recognised in the law to say you have a legal obligation to do this, and if you don’t do it, you are in breach of the law, and you can be declared to be in breach of the law, but there’s no particular sanction or remedy. That often happens at a governmental and Crown level. Ministerial obligations probably fall within that category. Breach of the Cabinet Manual happens all the time. It’s a breach of an obligation or a duty, but there are no particular consequences that flow from it in a legal sense of the word.

We’ll come and talk to this a bit more later, but this is a good way in which it’s captured, because it captures the overall theme where you’ve got a piece of not law. I would invite the Minister to explain how this not law is going to be effective when it doesn’t actually do anything. It’s just a vague way—and this new wave of bureaucrats will be expected to run around complying with this—to say, “Please do these consistency accountability statements, please run the regulatory standards principles ruler over every piece of legislation, but you don’t have to; there is no legal obligation, there are no sanctions, and it doesn’t affect the validity.”

That’s it. I’d just be really interested. My Amendment Paper actually says, “Get rid of that.” You’re either going to write a law or you’re not. If you want to get a law that does stuff, then don’t say it’s a law that’s not a law, which is, again, classic humpty-dumpty language.

I’ll just note that I know the member did refer to his Amendment Paper. Can I say that we’ve covered some pretty broad issues, and referring to an Amendment Paper is probably a pretty good idea at this stage.

Thank you, Mr Chair. Speaking of amendments, I did want to canvass the Minister and seek his engagement on Chlöe Swarbrick’s amendment. Normally, I would hope the Minister would know which one I’m talking to, because I see Ministers engaged with amendments and reading them, but I agree that the vibe I got from his first contribution is one that doesn’t fill me with confidence that the Minister has engaged with the amendments.

This amendment specifically seeks to do the following—and I do want to make it clear, because at the end of the day, these amendments are not voted on by the Minister, and I know he made an initial remark that he wouldn’t be introducing any of the amendments, but it’s actually up to other political parties, so allow me to make a plea to, for example, the National Party.

The amendment would add to clause 3, “Purposes”, subclause (3), “For the purposes of this Act, all persons exercising functions and powers under it must give effect to Te Tiriti o Waitangi.” The reason why I want to seek the engagement of the Minister in relationship to this amendment is because it’s whether he thinks that such an amendment would be contrary to, for example, issues of high quality, or whether, for example, making sure that giving effect to Te Tiriti o Waitangi would be contrary to what the Minister is seeking to do in this bill. If that is not the case, I don’t see why the Minister wouldn’t accept our amendment, because at the end of day, unless the Minister is actively trying to undermine Te Tiriti o Waitangi, I don’t see why he would be afraid of or against having this amendment put in place—unless, again, he’s doing the exact opposite.

I also ask this because the Minister has talked about property rights, but Te Tiriti in some ways also could be perceived to be about property rights in some way or another. They’re just not potentially the people that he may have been campaigning for. I’m keen to get an understanding as to whether Chlöe Swarbrick’s amendment would go contrary to the purposes of the bill, and if so, why, and, secondly—

Hon David Seymour: Point of order. I hesitate to interrupt the member’s speech, but what he appeared to just say is that I would not want property rights to apply to Māori. It’s totally baseless and quite offensive. I think he should withdraw it.

CHAIRPERSON (Greg O’Connor): Is that what the member did say?

RICARDO MENÉNDEZ MARCH: I think the member is putting words in my mouth, so I’m not going to indulge the member assuming what my intentions were when I did not say that.

CHAIRPERSON (Greg O’Connor): Carry on.

RICARDO MENÉNDEZ MARCH: All right. Anyway, I didn’t assume such an amendment would rattle the Minister in such ways, but here we go.

Again, my question is quite simple. Would putting Te Tiriti as part of the purposes of the legislation be contrary to what the Minister seeks to do, and if not, why wouldn’t he support it?

The other question I have is more broadly about his initial comments on amendments, and it is whether he actually sought to engage with the amendments at all or even read them. I think it’s concerning to see a Minister just disregarding all amendments, including those that may have been lodged well in advance, without telling us that he engaged with them meaningfully. Otherwise, all I am hearing is a complete refusal to engage with the substance of what we’re trying to do here, which is, in some ways, to bring to light whether the Minister is intending to actively trample over Te Tiriti, and if not, why he would not be supporting our amendment.

Thank you, Mr Chairman. I specifically want to talk to two of the amendments to clause 3 of the legislation, put forward in the name of the Hon Duncan Webb—in particular, the amendment to clause 3(2) replacing paragraph (d) with the following, which is: “providing support to the Ministry for Regulation in its work to improve the quality of legislation”. As the legislation is currently drafted, clause 3(2)(d) is “providing support to the regulatory standards Ministry in its work to improve the quality of legislation”.

The explanatory note that Dr Webb has put forward with this amendment, of course, is to say that the way that the Minister’s legislation is currently drafted means that any ministry could theoretically be given responsibility for the Act. The amendment that Dr Webb has put up identifies the Ministry for Regulation as that responsible ministry. The current drafting could be interpreted very broadly: any ministry could say that they are a regulatory standards ministry if they are administering regulatory standards. I think it is very sensible, and the product of someone that has carefully scrutinised the legislation, to want to make sure that there is absolute clarity in that. Just for the Minister’s reference, that was the amendment that was lodged at 8.30 and 15 seconds on the morning of 4 November.

The second of Dr Webb’s amendments, which was lodged at 8.13 and 16 seconds on the morning of 4 November, is to clause 3(2)(c)(i): after the words “responsible legislation”, to insert the following clause as defined by the Legislative Design and Advisory Committee (LDAC). In some of his earlier contributions, Dr Webb went through in quite a substantive way the very compelling and detailed submission that the Legislative Design and Advisory Committee made on this piece of legislation. What this amendment that has been put up highlights is that there are already existing guidelines produced by LDAC regarding legislative quality, and that means that the principles of good legislation are determined by an independent body rather than politicians.

These are two very specific amendments that are sitting there. They are sensible amendments, ones in which we’d like to understand whether, on these two particular amendments, the Minister will entertain them, and, if not, what his reasoning is for not—for not wanting to clarify and make it crystal clear that it is the Ministry for Regulation that is the responsible ministry here, and whether or not we can clarify that interface.

Thank you, Madam Chair. I just wanted to briefly come back to the Minister’s response to my question in relation to clause 3(1)(c). From his explanation to that, it appeared to me that the intention of that could be better articulated, instead of the word “see”, as “as provided for or consistent with”. After hearing the Minister’s explanation, I wondered if he or his officials would consider a clearer word, as opposed to “see”—and by “see”, I mean s-e-e, not the letter C. That’s the response to the Minister’s contribution before, which I did indicate I would like to come back to him on.

The second part of my contribution is still in relation to the purposes clause but also the intersection with the interpretation clause, which was also part of Part 1. In the purposes clause, there are numerous examples and uses of the word “legislation”, and, additionally, in clause 3(2)(c)(ii), there is a reference to Government bills. Now, the reason I ask that is because this bill—[Interruption]. The members opposite seem to have a lot of contributions to make, so I encourage them to take a call if they want to participate. This bill doesn’t cover all pieces of legislation, as I understand, and I know that there’s a schedule that we’ll be discussing shortly which sets out excluded pieces of legislation.

However, the question I had for the Minister is: when he says “legislation”, does that mean that pieces of legislation that are not excluded—like, for example, members’ bills—would or would not be covered by the purpose of this Act? I’ve looked at the excluded sections for the purpose of relating it back to the purpose clause to see what is excluded. I’ve seen local and private bills excluded; I couldn’t see members’ bills in that list. Of course, the Minister will know that a member’s bill is not a Government bill.

My question is, really: what is the intention of the purpose of this Act in relation to members’ bills, which is a specific example that I found that I couldn’t see referenced? If they are, indeed, included, does that mean that they are included in relation to existing legislation but not included in relation to accountability statements? That’s a genuine question in relation to a specific example. Apologies if it is in the list and I missed it. I’d appreciate a reference from the Minister in relation to that.

Madam Chair, I’ll just address a number of questions that have arisen so far.

Duncan Webb pointed out that the bill—in a later section, not this section—does not give any legal rights. As I’ve been consistent, I’m not going to debate the contents; that’s summarised in the overview section. Now, I am happy to debate the substantive clauses in Part 2 and Part 3 where they lie.

Ricardo Menéndez March mentioned an amendment in the name of Chlöe Swarbrick. His logic was that if the bill was not inconsistent with the Treaty of Waitangi, then it should be added. I simply disagree. Just because something’s not inconsistent doesn’t mean you have to do it. That’s a logical syllogism for him. I’ll just point out the New Zealand Bill of Rights Act, the Constitution Act, and, I believe, the Human Rights Act do not contain a Treaty reference. Clearly, you don’t have to do it all the time, so we’re not going to entertain that Chlöe Swarbrick amendment or anything like it. Nor do we believe that it demonstrates inconsistency with the Treaty of Waitangi. We just have a different purpose here.

Megan Woods said that the Duncan Webb amendment would change clause 3(2)(d). The “Ministry” could be any ministry, he says, because it just defines “regulatory standards Ministry”. I’d like to draw both Ms Woods’ and Dr Webb’s attention to clause 5, which is just over the page, which gives a definition for “regulatory standards Ministry”, as “the department or Ministry that, with the authority of the Prime Minister, is responsible for the administration of this Act”. It couldn’t be “any ministry”. You just had to turn two pages to see the answer to your question, then you could have saved time drafting that amendment.

Then there is the Duncan Webb amendment that says that the Legislation Design and Advisory Committee principles should supersede the Regulatory Standards Bill principles. Once again, if he wants to debate the merits of the principles, we’re very happy to do that in Part 2, but actually the principles, the content of them, are not in Part 1 that we’re currently debating. It may have been a clause 3 amendment, but the substance of it related to the content of the principles. The question he wanted addressed was why these principles and not those. As I said, I’m happy to address those in the appropriate place.

Finally, Camilla Belich had a wording change. I’m not entirely sure if I understood, but she wanted to say “as provided for” rather than “consistent with”—

Camilla Belich: No, “see”—instead of the word “see”.

Hon DAVID SEYMOUR: Oh, instead of the word “see”, “inquire into whether”—this is clause 3(2)(c)(i)?

Camilla Belich: Clause 3(1)(c).

Hon DAVID SEYMOUR: Oh, 3(1)(c). That probably is “overseeing and controlling the use of delegated powers to make legislation”.

Camilla Belich: In the bracketed “see”—the word “s-e-e” in brackets.

Hon DAVID SEYMOUR: OK. Well, I mean, I think probably people can interpret the word “see”. It’s only three letters; two of them are the same. It’s been around for a long time. I think we’ll just keep it simple. But thank you.

I move, That debate on this question now close.

I’m going to take another question from the Hon Dr Duncan Webb. I have been listening very carefully to this before I came to the Chamber, and I believe that the substance of the bill is in the next two parts and we’re outlining it here. The Minister has been engaging in answering the questions. Have we got something that’s specific and—

Hon Dr Duncan Webb: Oh yes—oh yes.

CHAIRPERSON (Barbara Kuriger): I’m sure you have—I’m sure you have—Dr Webb. That’s why I’m taking a question from you.

Kia ora. Thank you, Madam Chair. We haven’t really nutted out the definition section, which is the real nuts and bolts in this part. The other section that I’m going to talk about in this contribution is actually really important, and it’s what is excluded.

Schedule 7 comes under this part, and it was actually one of the things that consumed most of the time at the select committee. One of the overarching kind of themes of the exclusions was that we don’t want to subject anything that is Treaty-related. Treaty settlement bills were out; some of the fisheries legislation was out. That was all good, and we actually made some really good improvements, but there are a few other things, and my Amendment Papers, to be very clear, make some other suggestions. My Amendment Papers are both related, and they suggest that our most important constitutional legislation should not be run through this particular filter. I am suggesting in my Amendment Papers, and I have a couple of other observations as well, that the New Zealand Bill of Rights Act should not be subject to this legislation, and neither should the Constitution Act, because they’re actually sitting at the same level, which is law about law. There is also a good argument that the Human Rights Act should not be subject to this legislation and should form part of the list of legislation that is excluded in Schedule 7.

There is another class of legislation that runs into real problems, and we haven’t seen it recently in the House, but it’s treaty validation legislation. It’s legislation that we’re obliged to pass by entering into international obligations. To then run a kind of domestic lens over it is to undermine, essentially, Sovereign power to enter into treaties. The job of this House is to approve that and to get on with it.

Cameron Luxton: If the executive says it, we just have to approve it?

Hon Dr DUNCAN WEBB: No, no, you newbies haven’t actually engaged in these treaty validation bills. It’s a quite different exercise of this House’s authority. One of the fundamental principles in it is that you can’t rewrite the treaty obligations that the Crown has entered into; it’s a yes/no question. That’s why it shouldn’t be subject to this framework.

There are two other classes of bill that we might consider to be inappropriate for being subject to this. One is legislation that is the product of a referendum. If we had succeeded in the cannabis referendum, we would have had a piece of legislation that had been approved by the whole of New Zealand by referendum, and there is a really good argument that it shouldn’t then be subject to some quality check, because it’s had the biggest quality check you can imagine. That’s the last particular example. The examples were that class of legislation that is constitutional, which actually sits above—we don’t have supreme law in New Zealand, but there is a class of legislation that sits above other law and shouldn’t be subject to executive scrutiny in this manner. The other one was referendums—legislation which is the product of a referendum—and then international treaty validation bills. I think that’s pretty clear.

I’ve got a couple of other things to say about it, but I haven’t got enough—well, 50 seconds, but I’ll start it. The other one is this: the Minister can add to this list of legislation that is excluded. My other Amendment Paper says that it has to be confirmed by Parliament—an exclusion has to be confirmed by Parliament—and I would like us to think carefully about what that confirmation should look like. There is a strong argument in my Amendment Paper that it should not be 50 percent voting; it should be a higher threshold, because you are actually doing something quite important—you are adjusting the scrutiny that legislation is subject to. If I could have another two minutes, Madam Chair, because I have got one more, and that is revision bills.

CHAIRPERSON (Barbara Kuriger): Yes.

Hon Dr DUNCAN WEBB: Now, revision bills are currently subject—

Hon Karen Chhour: Madam Chair? Madam Chair!

CHAIRPERSON (Barbara Kuriger): No, I’ve already told the member he can keep going.

Hon Dr DUNCAN WEBB: The other is revision bills, because revision bills are currently being considered by this House under the Legislation Amendment Bill, and the suggestion is that what a revision bill is be expanded. A revision bill, in its current form, is simply a modernisation. You can do things like, say, get rid of “faxes” and say “emails”, but what you can’t do is change any of the substantive operations of the Act. The suggestion that we’re getting in the Justice Committee right now is that revision bills can make operational changes to the Act to make them more effective. Now, that then would make them much more substantive, and they shouldn’t be excluded from this, because all of a sudden, a revision bill becomes a substantial piece of legislation and not just a once over lightly.

Madam Chair, I won’t abuse the privilege of the extra call you gave me, because I don’t need it all, but they are the observations about the exclusions that I think the Minister should carefully consider in terms of how this Act operates.

Thank you, Madam Chair. I do have a couple of questions for the Minister, following on. I think the first thing I want to mention to the Minister is whether the Minister would consider my amendment to clause 4, under “Overview”. Now, I understand there are a number of overviews being laid out, but my clause takes place after clause 4(2), which suggests it’s simply a guide. I would like to add another sort of guide to it, which is that no regulation should override, diminish, or reinterpret the principles of Te Tiriti o Waitangi, and all regulatory decisions must demonstrate active protection of Māori rights and tino rangatiratanga.

Now, I did hear the Minister’s response previously, in terms of my colleague Ricardo Menéndez March’s amendment, but I’d also like to say that, yes, although the New Zealand Bill of Rights Act and the Human Rights Act may not explicitly mention Te Tiriti o Waitangi, they do make references to our international obligations, which includes the United Nations Declaration on the Rights of Indigenous Peoples. If the Minister would also elevate this bill to the same sort of standard, those two bills also don’t make specific references to taxes, levies, and fees under principles. I think that if we’re going to be expanding the scope of what is considered under those bills, my tabled amendment should also be considered.

I do have two other questions for the Minister, and one of them is under clause 5, “Interpretation”. This is to do with “consistency accountability statement” (CAS). Now, I know that there are other things in terms of how—let’s say (a)(ii), “summarises any inconsistency”. I know there are later sections that talk about what happens when there are inconsistencies, but what I haven’t seen in later sections—and that I want to see if the Minister wouldn’t mind addressing now—is what the degree is when something is too inconsistent that it needs to be brought back to be reviewed. That is something, for example, that isn’t mentioned in later clauses, so I want to check with the Minister in terms of degree. I think it could be something as clear as there is actually no degree, as long as the inconsistency has been summarised within the CAS, in which case, fair enough.

My final two questions to the Minister are with regard to the same clause that the previous speaker, the Hon Dr Duncan Webb, mentioned, in terms of clause 6A, regarding the excluded legislation. Now, I guess, the first question around that is in terms of the process for that, and I just want a clarification from the Minister—it says in subclauses (2) and (3), “The regulatory standards Minister may issue a notice […] A notice may be issued … only after it has been approved by a resolution of the House of Representatives.” I’m guessing that is something that the House just needs to vote on, as in a motion, and then there would be, potentially, inclusions or exclusions to that particular Schedule 1A as a result of that. I just want to check with the Minister if it’s something like a motion to the House that needs to be voted on.

Finally, the Hon Dr Duncan Webb raised a few very important points in terms of what is included in the excluded legislation in Schedule 1A, but, while the Minister is considering it, I want to check two other things that the Hon Dr Duncan Webb didn’t mention. Again, if the Minister is just like, “They have been considered, and they’re not part of the list because they’re not excluded.”, I accept that. The first one is members’ bills. Are members’ bills considered excluded legislation, because I don’t see it in Part 1 of Schedule 1A? The second one, which has been stated in Part 2 of Schedule 1A, is private Acts or local Acts. As we know, the only way for you to make amendments to a local Act is with a local bill, but a local Act is excluded legislation in Part 2, but a local bill is an excluded bill under Part 1. Can I just check with the Minister: is it the intention of the Minister that only local Acts are excluded, but not local bills?

Those are my four questions. The first one is around my amendment to clause 4. My second one is around CAS, on degrees of inconsistency before it needs to go back to the drawing board. The next two questions are around clause 6A, and the first one is around the resolution of the House and how that’s going to work. The last question is around members’ bills and local bills. Thank you.

First of all, I apologise to Camilla Belich. She asked earlier, “Are members’ bills in scope?”. No, they’re not. Clause 9 refers only to Government bills, and that also eliminates, for Lawrence Xu-Nan’s purposes, local bills. Duncan Webb suggested a series of types of legislation that perhaps should be exempted from scrutiny by the Regulatory Standards Bill in Schedule 1—the New Zealand Bill of Rights Act, for example; the Constitution Act. He might have a point there, but even if they were to be reviewed, it’s difficult to imagine that either of those would be inconsistent with the principles of the Regulatory Standards Bill, so it’s probably unnecessary.

He then asked if treaty validation legislation should be exempt, and his argument seemed to be that it might undermine representatives of a New Zealand Government going overseas, negotiating treaties with foreigners, if they felt they might face scrutiny by the people’s Parliament when they got home. I can see why he would be concerned about that from the point of view of a Government representative negotiating overseas, but as a New Zealander back home, I kind of see it from the opposite perspective—that, actually, it is important that if people are going to go overseas and sign up for things on behalf of all of us in our home in New Zealand, then they should be accountable to a set of principles that are designed to protect New Zealanders’ rights.

He then said that a bill that is the product of a referendum should be exempt. I have to say, as far as I’m aware, as the only member in this House in decades to have actually passed legislation confirmed by referendum—and I thank Duncan Webb for his support of that bill back in the day—I would not have minded if that bill had gone through the regulatory standard. I know it would have passed very easily, because it did not remove anyone’s rights; in fact, it expanded people’s rights and liberties in this country.

Finally, there was a proposed amendment by Lawrence Xu-Nan suggesting that the bill cannot override the Treaty of Waitangi or tino rangatiratanga. We have no intention of adopting an amendment like that. It is unclear what that would achieve. In fact, the Government currently has a lot of work under way to clarify what these Treaty principles, in various formats that have been sprinkled through legislation over the decades, actually mean. It certainly caused a lot of confusion for a lot of people trying to get on with their lives. Obviously, we have no intention of introducing something like that.

Finally, he asked about how inconsistent does a piece of legislation have to be with a consistency accountability statement. The law is very clear: a Minister is required to introduce either an explanation why not, or a consistency accountability statement. That’s up to them to judge, and, ultimately, it’s up to everyone else to judge them—whether they are indeed lawmakers that respect the principles or if they are lawmakers who, perhaps, have other objectives.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 427 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment replacing clause 3 be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to clause 3(1)(a), replacing subparagraph (i) is ruled out of order as being merely an attempt to criticise the bill.

The question is that Francisco Hernandez’s tabled amendment to clause 3(2)(c), amending subparagraph (i) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 3(2)(c), amending subparagraph (i) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 3(2), replacing paragraph (d) be agreed to.

The question is that Chlöe Swarbrick’s tabled amendment to clause 3, inserting new subclause (3) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4(1), deleting paragraph (h) be agreed to.

Dr Lawrence Xu-Nan’s tabled amendment to clause 4, inserting new subclause (3) is ruled out of order as not being in the correct form of legislation.

Francisco Hernandez’s tabled amendment to clause 5, definition of “responsible Minister”, is ruled out of order as being inconsistent with a previous decision of the committee.

The Hon Dr Duncan Webb’s tabled amendment to clause 5 inserting new paragraph (e) is ruled out of order as not being in the correct form of legislation.

The Hon Dr Duncan Webb’s tabled amendment to clause 5 inserting new paragraph (f) is ruled out of order as not being in the correct form of legislation.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 5, deleting the definition of “non-public service agency” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 6A, amending subclause (3) be agreed to.

Francisco Hernandez’s tabled amendment to clause 7 is ruled out of order as being merely an attempt to criticise the bill.