Regulatory Standards Bill

Members, the committee is resumed on the Regulatory Standards Bill. We were considering the bill last night and we were debating Part 2. This is the debate on clauses 8 to 40, “Principles of responsible regulation and regulatory stewardship”, and Schedule 2. Once again, the question is that Part 2 stand part.

It’s good to be back here going through the most substantive clause of this bill, which is clause 8, which sets out the Minister’s views of what the principles of responsible regulation are. When we finished up last night, I was talking about the rule of law clause, and we’re going to—or at least I am going to—propose to just go through this essentially in order. But, as has been noted, the Minister for Regulation, and certainly in committee, put it to us that we need not worry about the silence of this clause in many respects because it’s not exhaustive.

But there are two things to say. If you have a list of principles of responsible regulation and something’s not on it, it certainly puts that principle that’s not on it in a kind of level of second-tier importance. Of course, the other thing is that in terms of the role of the Regulatory Standards Board, the Regulatory Standards Board actually can’t look, when it’s assessing regulatory quality, at principles that aren’t there. It can’t say, “There’s another principle of good and responsible regulation and we think this bill fails on it, even though it’s not one of the listed principles.” So it’s actually not helpful—the idea that it’s a non-exhaustive list.

On that note, I come to my next amendment, one that was lodged at 9.45 on 4 November, which is how we’ll be able to identify them. It amends clause 8 and inserts a new provision, which is probably, when you think about it, the most fundamental principle of lawmaking in New Zealand, and that is to say that the law of New Zealand—good regulation—should be consistent with our founding document. This is a very important point and it’s one that deserves articulation by other members as well. I’m sure they have different perspectives on it, but from my perspective, if you think about the legitimacy of the Government of New Zealand, the authority of the New Zealand Government and Crown to govern all people in New Zealand, including Māori, it comes from the Treaty of Waitangi and the principles of the Treaty of Waitangi.

The Minister might want to put forward his own amendment which doesn’t use the word “principles”, because I know that there’s a discussion around whether it should be “is consistent with the Treaty” or “is consistent with the principles.” Or one might want to say “is consistent with these principles, which are the principles of the Treaty of Waitangi”, which is something else that he’s tried to do here. It says that there’s this framework of good regulation, but it’s entirely silent on the obligations that the Crown have regarding the manner in which they govern, including respecting tino rangatiratanga, including respecting the rights of Māori to self-determination, including the obligation to consult not just generally but with Māori on things that affect Māori, to ensure that the treasures of Māori—the “taonga” in the Māori version—are preserved and protected, to ensure that in accordance with the principles of the Treaty of Waitangi, the Crown actively protects the interests of Māori.

The bill says this is how we make good law, and it is 100 percent silent on how good lawmakers adhere with the most fundamental principles of our country: the very founding document. I’m sure the Minister will respond to this. It may be that my amendment is too simplistic and he would like to see it fleshed out somewhat, and I’d encourage him to do that. Or he might like to make it shorter, but the law should take into account the Treaty of Waitangi. That would do. That would be a step in the right direction. But to be absolutely silent on it is to leave a gaping hole which actually shows that this piece of legislation makes no sense and can’t be effective. Kia ora.

Thank you, Mr Chair. I, too, want to focus on clause 8, which is stated as the rule-of-law principle in this bill. I was listening carefully to the Minister for Regulation last night when he was talking about the reason that he decided to implement this bill. He said, from his perspective, this was simple. I thought about that, and I wanted to ask the Minister a few things around the particular provisions in this rule of law, proposed law, and this clause that he has proposed, because just by reading it and looking at it and analysing it last night, it appears that most of these particular aspects of the rule of law have not been ones that the Minister himself, and his Government, has been able to follow, in the way that they have enacted laws.

Just to be specific, with references to the clauses, clause 8(a)(i), “the law should be clear and accessible:”; of course, this Government has repealed the Plain Language Act, which was exactly for that purpose: making law clear and accessible. Clause 8(a)(ii), “the law should not adversely affect rights and liberties, or impose obligations, retrospectively:”; of course, we’ve seen the Equal Pay Amendment Bill—now an Act—go through, taking away rights retrospectively from New Zealand women and changing the rights that they have under a retrospective law through urgency. Clause 8(a)(iii), “every person is equal before the law:”; we’ve seen particular legislation go through this House last week on the marine and coastal area law, which particularly targets the property rights of a particular section of a population, indicating that under this Government, every person is not equal before the law.

Then we see clause 8(a)(iv), that “there should be an independent, impartial judiciary:”. We have heard comments from the Minister’s own deputy leader, Brooke van Velden—the Minister for Workplace Relations and Safety—questioning the impartiality of existing Employment Relations Authority members and saying that the Employment Relations Authority members—that she, in fact, appointed—would be more likely to give a favourable decision in relation to employees. Now, I’m paraphrasing there. That’s not a direct quote, but that is my recollection of what happened in that situation. Clause 8(a)(v), that “issues of legal right and liability should be resolved by the application of law, rather than the exercise of administrative discretion:”; the fast-track legislation is an example of when you have an exercise of executive discretion in relation to the projects that are listed.

I want to ask the Minister: in this particular clause, would this clause have stopped those few examples that I have listed from being enacted, and, if not, what is the point of this clause? How can New Zealanders trust this Government to uphold the rule of law when, just off the top of my head, it is so easy to find examples of where it appears that his definition of the rule of law, as he has put in this bill, has actually been broken?

Thank you, Mr Chair. I want to start today by discussing clause 8(a), which is under the cross-heading “Rule of law”. I just want to signal to the Chair as well that each of these sections under the cross-heading deserves its own individual attention, but I’m going to focus on the “Rule of law” first.

In terms of what the Minister for Regulation has put—to the Minister: in terms of what we see here under “Rule of law”, a lot of them, prima facie, make a lot of sense, but I want to pick up on a few points here. The first one is around “(iii) every person is equal before the law:”. Now, the idea of the rule of law, of course, goes back for a while, but what we’re seeing now is that the expectation and reality are quite different in terms of everyone being equal under the law. For example, different people have a different ability to pay lawyers, and that is not equal. The other example, as we see with the most recent sentencing amendment bill, is that if you have more money or you can pay for reparation, you can go above the 40 percent cap in terms of the discount for sentencing, which is also, technically, not everyone being equal under the law, because everyone has a different ability to pay.

If we’re looking at something where every person is equal before the law, then would the Minister consider, for example, that there be a cap to anything that is in front of the law, or that access to the law should just be free for everyone—in which case, everyone then would be equal and would have free access to that. I mean, in that sense, I would agree that, yes, everyone is equal under the law. I guess my first question to the Minister is: how does the Minister reconcile the fact that equality before the law is an ideal, but not a reality, and how then would the Minister be hoping to address that reality through this particular section and through this particular legislation?

The second question I have on the “Rule of law” section relates to clause 8(a)(iv), which says that “there should be an independent, impartial judiciary:”, and I agree with that. Everyone who has ever done any law would know about the separation of powers and the principle of comity, but what I wondered is that we have seen, in many ways, that the members of the judiciary do their thing. They make rulings, they make judgments, and they make interpretations, as it is right for the judiciary to do. Judges have not come out publicly to criticise Governments, to criticise Ministers, or to criticise the legislature, nor do they criticise the executive. They interpret the law through legislation. However, we have seen the executive and the legislature come out and openly criticise the judiciary, which violates the principle of comity.

So I wanted to get the Minister’s advice and opinion on this. If there should be an independent, impartial judiciary, how then do we also account for, I guess, in some ways the lack of an impartial executive? I know that a lot of this part of this bill focuses on—and rightly—the executive overreach in certain things. We want to have the ability for the legislature to be able to scrutinise the executive more, and also the ability for the judiciary to scrutinise the executive more, which would mean reversely, conversely, what then are we going to be doing about a lack of an independent or impartial—well, independent, yes, but, particularly, an impartial executive.

Those are my two questions. They are in terms of how, then, will the Minister address or consider or have thoughts on the lack of equality before the law currently—particularly around how much people are able to pay to appear before a judge, using the example of the sentencing amendment bill—and also in terms of the issue of having an impartial executive in some of the things that we have seen.

Thanks, Mr Chair. My questions are also in clause 8, “Principles of responsible regulation”, relating to the rule of law—but from a slightly different angle.

So, clause 8(a)(iii), “every person is equal before the law”—and we traversed the meaning of the word “equal” or “equality” in the Treaty principles bill discussion, but I want to bring it back today, because obviously there are different ways to interpret the word “equal”. There is formal equality, which is the concept that everybody gets the same thing, and then there is substantive equality, which is the recognition that everybody doesn’t start out on the same playing field and that, because of that, some people need more than others to bring everybody up to the same level. So what does the Minister for Regulation mean when he says “equal before the law”? There are probably more interpretations to the word “equal” than those two—Dr Marilyn Waring had a really good explanation behind those two concepts—but what do you mean by “equal”? Because there’s lots of different ways to interpret that one word.

I think my colleague Dr Lawrence Xu-Nan touched on some really good examples of inequality before the law, because this sentence, “every person is equal before the law”, is simply not true in our courts and the way that our law is applied. Dr Xu-Nan made some really good points around how much access you have to money can sometimes determine the way in which you are impacted by the law, which is a really great point. It made me think about even things like the removal of section 27 reports, which allow for the courts and the judiciary to have a more fulsome understanding of who a person is, where they’ve come from, what their challenges are in terms of their health, their upbringings, etc., etc. But if you can’t afford to commission your own cultural report now, you don’t have the same standing in front of the courts—unlike if you have money and you’re able to access or commission those reports, and the judiciary will have a better understanding of who you are and will be more forgiving and more compassionate towards your circumstances and will likely give you a more flexible or compassionate sentence, because you have been able to pay for that report. So everyone isn’t equal under the law; it depends on how much money you have access to. Can you address those discrepancies?

But let’s also talk about race when it comes to everybody coming before the law, because here’s another fact for you, Minister: Māori are 11 times more likely to be prosecuted for the same offence as non-Māori. I’d love if the Minister could explain where that discrepancy comes from, because clearly, if you have a brown face and you appear before a judge or a lawyer, you are not going to be treated in the same way as somebody who appears before a judge with a white face. That might be uncomfortable to hear, but that is the truth, and it has been traversed by many courts, many judges, and many lawyers, who point out the institutional racism that exists within our criminal justice system. In terms of the rule of law, I’d love for the Minister to answer some of those questions.

But the kind of obvious glaring omission in this entire section around the rule of law is the complete absence of tikanga Māori—the original law of this land, by the way. There is no provision whatsoever that recognises tikanga Māori, despite the fact that many rulings in the court have considered and applied tikanga Māori. If we want to be specific about what that is, that is the original law of this land and the way that decisions and justice was fulfilled for the indigenous people who were here in this country first. In this modern day in 2025, it’s not extraordinary or spectacular to see tikanga Māori be written into and considered into a judgement. So why is it that this piece of legislation that attempts to be a modern piece of legislation completely ignores the very hard work of people like Justice Joe Williams who have incorporated tikanga into their rulings? This completely erases that and makes no mention whatsoever of tikanga Māori, which is why I’ve drafted an amendment to amend this part to include the importance of maintaining consistency with the following aspects of the rule of law, noting that nothing below precludes tikanga Māori being recognised as the original law of this land.

So I’d love it if the Minister could start there, but I’ve got more questions around Te Tiriti and tikanga Māori to follow.

Thank you, Mr Chair. I also have questions in regards to clause 8 of the bill. I indicated to the Minister for Regulation earlier during this committee stage that I had questions around the genesis of the principles chosen as compared to the rights that we have expressed in the New Zealand Bill of Rights Act (NZBORA). The point I’m making is that, when you’re setting something up as being aligned to the rule of law in terms of something that we should consider constitutional, what we’ve done in the past is we’ve developed rights that are based on international law. The New Zealand Bill of Rights Act is an example of that, drawing from the International Covenant on Civil and Political Rights. That’s one element of legitimacy, if you like.

The other limb of legitimacy is that it’s well socialised with the people of New Zealand. The example I used was the same. The NZBORA in its day was socialised with the people of New Zealand through two political campaigns, and there was much discussion and deliberation across the House in terms of firming up those principles as rights in New Zealand. The first question is really: where is the genesis for the principles, particularly around the taking of property and the principles there that the Minister is drawing from, and how does that relate to that history of drawing from international laws—covenants, as opposed to declarations; covenants, of course, have direct obligations on nation States—but also the socialising with people to ensure that it is truly a norm, particularly in light of the massive opposition that we all heard not only in the select committee room but also on the streets of New Zealand across the country in relation to this bill? In many respects, it feels like the opposite evidence is available, and it demonstrates that the people of New Zealand do not want this to be a principle that is one which other pieces of legislation and regulation are marked against.

The other question I would have for the Minister is where he considers these principles to sit in terms of their ranking against the New Zealand Bill of Rights Act rights. In the first part of the reading, the Minister indicated—I thought very helpfully—in response to Dr Webb’s proposal that certain things should be excluded from this analysis, including the New Zealand Bill of Rights Act and the Constitution Act, that Dr Webb could be correct but that it’s very likely that those Acts wouldn’t be found to be in breach of these sets of principles anyway. My first question there is: is his view not that we should be clear in the law about what’s included and what’s excluded? The statement about the fact that Dr Webb could be correct, in my mind, is an indication that maybe an amendment is needed across this bill to make that very clear, given that we’re talking about constitutional law as well.

The second part to that is: in which case, do the rights in the New Zealand Bill of Rights Act take precedence? I note here also that the Minister has chosen not to include clauses that we do have in the New Zealand Bill of Rights Act—sorry, these are sections 6 and 5—which are the engagement sections. Those are, in many ways, the heart of the New Zealand Bill of Rights Act because they direct decision makers to turn their minds to consistency but also place reasonable limitations on rights. That’s the active part of the New Zealand Bill of Rights Act, in my view. The Minister’s chosen not to do that in this bill, which says to me that, clearly, the rights in the New Zealand Bill of Rights Act take precedence. Although section 4 of the New Zealand Bill of Rights Act would point to other legislation if there were an inconsistency, this bill would seem to point back to the New Zealand Bill of Rights Act.

My view on the read of the two is that the New Zealand Bill of Rights Act would take priority when the two were pointing at each other in terms of an inconsistency. It would be useful to have the Minister’s view on which takes precedence.

Thank you, Mr Chair, and thank you, members, for your questions and comments.

Duncan Webb said that the Regulatory Standards Board cannot consider principles under clause 8(a). The Regulatory Standards Board would be considering the consistency of a consistency accountability statement. If a member or a Minister bringing a piece of legislation chose to consider those, then I don’t see why the Regulatory Standards Board couldn’t consider it.

He went on to say that he has an amendment to insert a Treaty of Waitangi clause. The Government has no intention of doing that. The New Zealand Bill of Rights Act, the Constitution Act, and a number of important Acts do not have Treaty clauses. There’s also a practical reason for that. If you look at the principles in clause 8, they’re all quite practical. They set out what a person can expect from the law in quite specific terms. If you had a Treaty clause, then it would open up a new debate about what that means, which members have already alluded to, so we have no intention of supporting amendments to expand the principles.

I note that Standing Orders and Speakers’ rulings are very clear that there’s a limit to the extent that members can try to extend a debate by talking about what’s not in the bill or hypothetically could be in the bill.

Camilla Belich argued that—[Interruption] I’m sorry?

Dr Lawrence Xu-Nan: It’s not for the executive to determine; it’s for the Chair to determine.

CHAIRPERSON (Teanau Tuiono): Let’s not have cross-Chamber chats.

Hon DAVID SEYMOUR: Yeah, OK. I couldn’t quite understand that. Camilla Belich argued that the Government hasn’t followed the rule of law and, in my view, made a series of political attacks on the Government. But if she’s right to lament that the Government has not followed the rule of law—let’s just imagine that for a moment that she was—then, of course, she should welcome this initiative to put these rule-of-law principles in statute. In fact, she seemed quite eager for that, because she asked: would the statute stop the Government passing a law? I’ve been quite clear in Part 1—if you look at clause 25 of this part—that the bill does not prevent Parliament passing a law. It does require the executive to be more accountable and transparent with Parliament. So it might mean that people are less willing to commit the various crimes that Camilla Belich accuses them of if there was more transparency.

Lawrence Xu-Nan and Tamatha Paul both raised a series of issues around the practical ability to access the law in their critique of the rule of law section, particularly the idea that every person is equal before the law. There are extensive political debates about equality of opportunity and equality of outcome. There are policies—for example, legal aid—that assist people to access the law. There has been, in the past, funding for section 27 reports. Those are all interesting and important areas of policy debate, but they actually don’t concern us here. The statement that every person is equal before the law simply means that if there is adjudication of a matter, then people should not be treated differently based on their identity in the same circumstances. I’m very happy to have a debate about access to law and legal aid and so on in another in another format, but it’s not actually relevant to this part.

Vanushi Walters raised questions about the role of international law. She raised questions about the New Zealand Bill of Rights Act—is there a precedence over the New Zealand Bill of Rights Act by this law, given that there might be, in theory, a review of the New Zealand Bill of Rights Act against these principles. As I’ve already stated in Part 1, I don’t believe that would lead to a conflict. I don’t believe that these laws are in competition. So we’re not intending to make any change in that area.

There were also, I think, questions about international law. We’ve got to be clear that signing a treaty with another foreign Government, for example, is an initiative that a Government might wish to take. It might wish to bring confirmation legislation to the House. The purpose of this legislation is simply to make sure that the impacts on New Zealanders of any Government initiative, including interacting with foreign Governments, are clear to Parliament and clear to the people who send us to this Parliament. It’s not necessary to then put the driving force behind such an initiative in this bill. I hope that helps members with their questions.

Thank you, Mr Chair. Obviously, clause 8 is the absolute work horse of this bill, and discussion as to how it might be improved is not really talking about what isn’t in the bill; it’s actually talking about very bricks and mortar of the bill.

My amendment which was lodged at 9.45.03 on 4 November—I see there are two; at three seconds because the next one’s at four seconds—rather just sort of alluding to the rule of law, is actually alluding to something which has echoes with the New Zealand Bill of Rights Act, and that is that the law should reflect the fundamental values and principles of a democratic society. And, again, some of these suggestions have been drawn from the Legislation Design and Advisory Committee guidelines, and that is one of the guidelines or one of the principles in the guidelines.

I do think that it’s a better touchstone in some ways than the rule of law principle, because it really does talk about what gives a more expansive view of what a free and democratic society is. I wanted to touch on that briefly, but the one thing I really wanted to talk about a bit more was an amendment that talks about Parliament and the role of Parliament as opposed to delegates. One of the really important aspects of good lawmaking is to make sure that this House is the pre-eminent lawmaker. And whilst it’s busy and it keeps us pretty well occupied, we’ve got to be very cautious about over delegation. One of the dangers is that we give to other entities, whether it be Ministers or Government agencies or even non-government agencies, as is discussed later in this bill—we’ve got to be cautious that we don’t accord them too much power.

My amendment lodged at 9.45.05 on 4 November—and five seconds—just identifies the principle that “Legislative power resides in Parliament and delegation of legislative power should occur only: (a) when it’s necessary to achieve the policy objective; (b) it’s subject to appropriate oversight; (c) and provided that it is limited to legislating to implementing the policy in empowering legislation.” That is to say it’s really important—and this goes to the arbitrary power point, and I know that arbitrary power and, of course, too many regulations is one of the things that’s dear to the heart of the Minister. But that whole idea of limiting legislation to implementing policy rather than making policy, whilst it’s a vague line—and this is sometimes called a “Henry VIII problem”—it is a meaningful distinction to make sure that we don’t give Ministers—importantly Ministers—but especially bureaucrats, people who aren’t elected, the power to make substantive legal change about the rights or entitlements or duties of citizens. Because that is at the heart of our democracy—that we elect people to this place to make laws, laws that change rights and entitlements, and whilst an exemption power for a licensing regime might sit with a senior person in the Ministry of Transport, what shouldn’t be there is what that licence looks like and what it entitles someone to do.

So I do think we need to be cautious about that. Whilst there is a huge amount of regulation and it is appropriate that some of it is delegated, I think it’s an important principle of good lawmaking that substantive policy decisions, which allocate rights and benefits and those sorts of things, actually sit with this House, and that’s why I put that amendment forward for clause 8.

Thank you, Mr Chair. I want to follow up on what the previous speaker, the Hon Dr Duncan Webb, said, but, actually, I want to move on from the rule of law and talk about a separate section in terms of the liberties part of this, because, again, this is a substantial section in terms of the principles, and I think each cross-heading deserves its own attention.

Just before I start on the liberties, I want to check with the Chair, just a point of clarification, that the Minister before did say they were happy to have a debate on access to justice. I wondered if the Chair is allowing that to be a green light for a broader discussion on access to justice in relation to everyone is equal before the law.

CHAIRPERSON (Teanau Tuiono): I’ll let you continue your discussion; I’ll take some advice while you’re doing that.

Dr LAWRENCE XU-NAN: Cool, I will start with the liberties section and we can move back, depending on the Chair’s ruling. Note that it is the Chair that rules on Standing Orders and Speakers’ rulings.

In terms of the liberties, I agree that when we’re looking at something like this, again, on the surface, it’s reasonably—you know, it is logical but I think I would like to sort of peel away the veneer of this particular section and look at specific wordings within this.

I guess the question here is, if we’re looking at the original idea of freedom of choice of action, if you’re looking at, you know, going back to fifth century BC, when we’re in front of the agora and talking about the isegoria, which is the origin of freedom of expression vis-à-vis the freedom of debate in the market place. It was very clear back then—and this is where we get our current idea of freedom of expression from—that the idea of freedom of expression does not equal freedom of consequences. Clearly, in the fifth century, if you’re looking at 480 BC, at the forum, everyone had the right to debate and everyone had the right to contribute to a discussion. A particular man in the Athenian forum back then says, “Hey, you know, we’re facing a Persian invasion. Why don’t we just surrender to the Persians?” He was absolutely within his right to express that as a freedom of expression; however, it didn’t stop wide outrage in the Athenian forum and for him to be drawn and quartered.

So the idea there is—and I think the moral lesson over there is—a freedom of choice and freedom of action does not equal a freedom from consequences. So when we are looking at the freedom of liberties and freedom of choice of action, I really want to get the Minister’s advice on how does this—and the Minister has referenced the Human Rights Act and the New Zealand Bill of Rights Act (NZBORA) as other key constitutional documents here in Aotearoa. How, then, does the Minister balance the two of freedom of expression and freedom of consequences? Again, like the Minister is suggesting through here, in terms of liberties, that people have the right to express certain things. We’ve seen that in the most recent Education and Training Amendment Bill, in terms of freedom of expression at universities. However, what happens, then, if those words or choices then harm other people either through NZBORA or through the Human Rights Act? Would that still be allowed within this particular legislation or within the drafting or within the approval or a consistency accountability statement of a particular bill? Because it does open up broader questions, then.

Alternatively, if we’re looking at freedom of choice or action, how does that reconcile with, like, say, the Crimes Act? Could one say, then, with any piece of legislation—or if this is a core tenet that people can base things on as something that is of a constitutional nature—“I have the freedom of action to assault someone”? Does that actually mean that when you are making verbal threats—which we all agree, in this House, that verbal threats are illegal, and many of those things, verbal threats, are already covered in the Crimes Act—those are then considered freedom of expression, or would that be captured, rightfully, under the Crimes Act?

So this is my big question to the Minister under the liberties section: how, then, do we balance a social contract within our society and that kind of carte blanche freedom of expression or action? I’m also waiting to hear feedback and advice from the Chair regarding my other question.

Just to clarify for the Chamber and clarify with the Minister as well: it wasn’t an invitation from the Minister to debate that stuff right here, right now, but in another forum. So a broader debate can happen outside of these Chambers if you want to organise that. However, the green light is for people to focus on clauses and the sections. There is quite a bit there. I know this is a substantial part. So if members could keep their comments to that, that would be very helpful for the committee.

Thank you, Mr Chair. I want to ask the Minister for Regulation a question about his drafting choice in terms of looking at what I would call simple incompatibility with his principles, versus a potential drafting choice he could have made for justified incompatibility. I referenced this in my previous question, but I don’t believe that the Minister has responded.

I referenced sections 6 and 5 of the New Zealand Bill of Rights Act, as well as section 4, and I called it the heart of engagement with the New Zealand Bill of Rights Act, because that’s really where decision makers do engage. It must be read compatibly. You can have justified limitations. If that’s not possible, then the other piece of legislation takes priority. Now, the Minister has made a drafting choice, in regard to this bill, not to include those engagement provisions, and I really am curious as to why.

I just note that Dean Knight made this observation in some of his commentary, and I believe in his submission as well, and suggested that there would be cases when you could have justifiable incompatibility or justifiable limitations. He also suggested some specific drafting in terms of clause 8, which I will read out because I do think it’s very helpful, and I think it’s an important question in terms of understanding why the Minister hasn’t made this choice. Dean Knight suggested that in principle 8, it could read: “The principles of responsible regulation are, except as provided in subsection (2), as follows:”, and subsection (2), he suggests, then, could read, “Any incompatibility with the principles is justified to the extent that it is reasonable and can be demonstrably justified in a free and democratic society.” So it uses similar language to the language that we do have in the New Zealand Bill of Rights Act.

Again, a question here about whether the Minister considered this, in terms of turning decision makers’ minds directly to not only compliance or not but that middle ground, which is: where could you justifiably limit these principles, which, I think, is certainly part of our history in terms of encouraging decision makers to engage with constitutional principles, which, essentially, these purport to be.

The other question I had for the Minister was around clause 8, the section that relates to the role of the courts. Dr Duncan Webb has some very useful proposed amendments here, which I’ll refer to in a moment, but the current clause reads: “(g) legislation should preserve the courts’ constitutional role of ascertaining the meaning of legislation:”; and by using the word “of” the provision implies that the court’s only role is to interpret Parliament’s legislation, and that’s simply not true. That’s a fabrication. In fact, as long ago as 1972, the well-respected judge of the Judicial Committee of the House of Lords, Lord Reid, said that the idea that judges do not make law is a fairy tale.

Yet I raise it here partially because of the way that the bill is worded, but also because we’ve seen several instances of Government Ministers of late stepping into this space and claiming that there is judicial overreach. My view is that it’s a misunderstanding of the nature of the role of the judiciary, which isn’t just to interpret the law; it is also to develop the common law; and as the Minister would know from the last term in Parliament and the insertion of the declaration of inconsistency clauses into the now-updated New Zealand Bill of Rights Act and into our Standing Orders, it’s also the role of the judiciary to hold this House to account, to return things to the House, to ensure that we look at them twice.

Now, Dr Webb’s proposed amendment—this one was submitted on 4 November at 9.20 a.m.—proposes an amendment to clause 8(a) and replaces that flawed wording with, I think, much more sensible wording that sets out, in truth, what the role of the courts are. I’d appreciate the Minister’s comment about the proposed amendment.

CHAIRPERSON (Teanau Tuiono): Do you know what time or date that was? Because there’s a lot that came in at 9:20 a.m.

VANUSHI WALTERS: At 9.20.05 a.m.

Thank you, Mr Chair. Just in response to the last three speeches, Duncan Webb suggested that Parliament should pass a law asserting that it is the supreme lawmaker in the land. That would be to produce a piece of legislation that people could dispute. There’s an old saying—I think it was Margaret Thatcher who said—if you have to say you’re a lady, you’re not. So it would be very unwise for Parliament to make that statement and actually call into question its sovereignty as the only lawmaker.

Duncan Webb then went on to talk about paragraph 8(g), the idea that—oh, he talked about delegation, that there shouldn’t be too much delegation of other rules. Well, actually, I think paragraph (g), which Vanushi Walters also mentioned, is quite helpful in that it says, ultimately, it’s the courts’ role to ascertain the meaning of legislation. It shouldn’t be somebody in the bureaucracy making random calls, so I think that actually helps address his concern.

Vanushi Walters had a reading of paragraph (g), the role of courts, that could be interpreted as “legislation should preserve the courts’ unique or exclusive constitutional role of ascertaining the meaning of legislation”. We could have said that, but we didn’t. We are saying that the legislation should preserve the courts’ constitutional role. We don’t comment on what other roles they have, or preclude them from having other roles, so the Government is quite comfortable with paragraph (g) as it reads, and we’re not likely to adopt any other amendments on that paragraph.

Lawrence Xu-Nan—I’ve got to say, I really enjoy his speeches, but they don’t have a huge amount to do with the legislation in front of us. Certainly, the Peloponnesian War is very interesting, but I thought his interpretation of “free speech has consequences and you might be hung, drawn, and quartered for what you say”—I mean, most of us on this side of the House would say the point of free speech is you can say what you like without being hung, drawn, and quartered. But that, again, is a debate for another time. The relevant thing for Mr Xu-Nan is paragraph 8(b) sets out—and he didn’t really get into it, but I’ll help—that “legislation should not unduly diminish a person’s liberty, personal security, freedom of choice or action, or rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such liberty, freedom, or right of another person:”.

So, for example, you could have noise restrictions perfectly consistent with these liberties. Does it diminish your ability to make noise after a certain time? Yes, but doing so also protects your peace and quiet after a certain time. In other words, the obligations are reciprocal and the benefits are mutual, and that argument could be extended to free speech or any other law that curtails liberty for reciprocal obligations and mutual benefits.

Vanushi Walters also raised a question of should we have drafted something like section 5 of the New Zealand Bill of Rights Act that says there are—I think she used a good term—justified incompatibility versus simple incompatibility. Yes, we have thought about that, but I’d draw her to paragraph 11(b), which says that a Minister can actually issue a statement explaining why a law has not been made consistent with these principles, and it’s up to the Parliament and the public to judge them on that.

CHAIRPERSON (Teanau Tuiono): Before I take the next call, just to note that members are moving through the clauses and moving forward, so that is appreciated, and I would encourage members not to repeat previous sections as well. So I’m not looking for closure motions at this particular time, if that’s what’s being asked.

Thank you, Mr Chair. It’s not a closure motion. In the words of Lawrence Xu-Nan, you know, each part of the principles deserves proper attention, and I’m hoping that’s what we’re doing, Mr Chair.

I’d like to move to the “Taxes, fees, and levies” section, clause 8(d) and (e). It talks about authorising imposition of a fee for a good or service “only … [as it] bears … proper relation to the cost”. How would that function, do you think, Minister for Regulation?

Also, moving into paragraph (f), we’ve got the tax, fee, or levy that “(i) … benefits … [a] class of payers is likely to derive, or the risks attributable to the class, in connection with the objective or function; and (ii) the costs of efficiently achieving the objective or providing [that] function”. How are groups defined in that role? The people who are benefiting mutually—or not, in this case—how is that defined, and how is “proper relation to the cost” being imposed defined? Thank you.

Thank you, Mr Chair. Firstly, just on the liberty clause—and there’s a tabled amendment of mine lodged 8.30.23 a.m.—I’m really just noting that the framing of liberty in this bill actually comes straight out of John Stuart Mill’s On Liberty, in that it says the only constraint on liberty should be something to preserve someone else’s liberty. That does what the ACT Party does, which is break everything down into individuals. The fact of the matter is that there might be values about the wider society, generally, which isn’t so much about that person’s liberty to go about their business but about building a strong and good society, for which it’s reasonable to place limits on someone else’s liberty. That’s why my suggestion on that tabled amendment—I’m just going to be very brief with this one—was that rather than saying “legislation should place constraints on a person’s liberty only to protect someone else’s liberty”, it should be “only when it can be demonstrably justified in a free and democratic society”, which captures the liberty/freedom point but also the wider democratic issues.

What I actually wanted to do, though—I do appreciate the guidance of the Chair—is move along to what might be called the takings clause—clause 8(c). Now, in my tabled amendment 8.30.24 a.m., I suggest that the whole clause be deleted. It’s fundamentally not workable. It’s well accepted that the whole idea of no confiscation without compensation is a thing, and it is a part of the rule of law that you just don’t take people’s stuff, which I think were the Minister’s words last night. I agree with that, but we don’t need that principle here. It’s not a critical principle of good regulatory quality. It can fall off the end along with things like the Treaty of Waitangi and international obligations and human rights.

One of the problems is that, in the way it’s framed with this severe impairment, it’s actually quite obscure. I know at the Finance and Expenditure Committee—and the Minister, I know, was consulted as to the select committee’s view on this—they took it from being just any impairment to a severe impairment to make sure we didn’t have just trivial matters clogging up the wheels of lawmaking. The idea of impairment is difficult because an impairment can be simply through regulation. The Minister of Agriculture will be a good example of that. There might be an impairment when you might have had a right to take water but, to preserve that waterway, that is limited. You might have had a right to discharge into a waterway, but that right is now going to be limited. Now, that’s not taking property, but it would fall within the impairment principle because it’s changing a property right in a way that gives a less extensive ability to use that property. That’s a very difficult area.

Now, if the Minister wasn’t minded to accept that, I’d suggest he accept my other amendment, which was lodged at 8.30.25 a.m., which actually just replaces it with a much broader framing of the taking principle. Sure, legislation shouldn’t take or authorise the taking of property—that’s a genuine taking rule, which is actually the American framing—without the consent of the owner unless there’s good justification, fair compensation, and the compensation is provided by the persons who benefit from the taking. It’s actually using a much more workable framing and one which has good jurisprudence in the United States. If you look at the explanatory note there, you’ll see I’ve cited Lucas v South Carolina Coastal Commission, which talks about that taking framing, or what amounts to a taking, because taking is a lot clearer concept than impairment, and it actually accords much more closely with the framing of our law in New Zealand.

I have two tabled amendments—one to do away with it, and the other says if you’re going to use it, use it in a way that is familiar around the world already, and it is, in fact, based on the United States Constitution approach.

Thank you, Mr Chair, for allowing me to take my first call of the morning. And good morning to all the members and the Minister in the chair, the Hon David Seymour. I wanted to also talk about clause 8(c), “Taking of property”, and ask about its interaction with the “Taxes, fees, and levies” paragraphs that subsequently follow. The fact that they’re different kind of tells me that there’s a difference that the Minister views between a tax and taking of property, for example, but, you know, as per the contribution of the previous speaker, the Hon Dr Duncan Webb, why not just kind of merge the two clauses together?

I wanted to ask about what the threshold was that the Minister considers for “severely” impaired versus merely impaired. Are there any case law examples he can give on what the difference of those two might be?

I want to move to the other parts of this clause as well, around the “good justification”: is that defined somewhere in the Act along with the fair compensation for the taking and the compensation provided as well? So I’m just taking a very short call to ask about this section—I’ll have some other calls as the principles develop, but thank you for the engagement so far.

Thank you, Mr Chair. In the spirit of the speaker who’s just sat down, Francisco Hernandez, I’d also like to move to the “Good law-making” cross-heading, and specifically clause 8(j): the importance of carefully evaluating the issue concerned and how that interacts with the effectiveness of any relevant existing legislation in common law—as in, if there is an issue concerned, that there are already laws with it, is that going to the review? And new laws, where the public interest requires the issue be addressed—how does that work? Is it saying, “Look, this is maybe a storm in a teacup,” or some such? How would that function? Any other options? I guess that feeds into clause 8(j)(iii), which I’ve just talked about, and clause 8(j)(iv).

Also, the key part, I think, is who is likely to benefit and who is likely to suffer a detriment from the legislation. It’d be interesting to hear how that would actually be communicated. So if you could speak to those, Minister, that’d be helpful: the importance of the responsible agency identifying and developing effective arrangements. Again, the questions came up in Part 1 about the responsible agency, but also just clarifying which agency. I know it’s in the definitions, but maybe this could be better clarified for the committee. Thank you.

Thank you, Mr Chair. I’m also looking at the “Good law-making” cross-heading, paragraphs (i) to (m) of clause 8. My first question is around the language that refers to consultation and “the importance of consulting, to the extent that is reasonably practicable, the persons or representatives of the persons that the responsible agency considers will be directly and materially affected by the legislation:”.

My first question is to what extent the Minister for Regulation envisages that this part applies to our parliamentary process. Are we talking about consultation in the early stages of the development of law, or are we also talking about the parliamentary process? The reason I think it is important, for the Minister, is that it refers to people who are directly and materially affected by the legislation, but, of course, in terms of the parliamentary process, everyone—everyone—in New Zealand has the ability and the right to submit their views to Parliament whether they’re materially directly affected or not; whether they simply want to comment as part of that process. My view is that this clause would sit separately from what we understand to be good parliamentary process, but it would be useful to have the Minister comment on that.

My second question is that, if it does apply more broadly to our parliamentary process as well, what he understands the “reasonably practicable” threshold to be and how that would operate. The examples we see in the House at present—I found Camilla Belich’s examples earlier really useful, just in terms of giving this kind of theory-based bill some flesh and bones in terms of what it would mean. The example I’m thinking of is that we have a bill travelling through the House that would allow people to be automatically exempted from jury duty, but at a higher threshold than they currently are. It has gone out for consultation, and we have been talking to people and hearing their views. We’ve also had, this year, changes to pay equity legislation that did not go through that process. If this was a bill that applied equally to our parliamentary processes, would that fall afoul of what the Minister would believe would be reasonably practicable, or not? That’s my second question.

Then I look towards the end of that part that outlines what is good lawmaking and just note an absence, which is the function of either the duration of the law itself—the Minister will be aware that, from time to time, there are sunset clauses or provisions within bills that require a review or which reference reviewing legislation or identifying when active post-legislative scrutiny should occur. Of course, there is now the new clause 8A, which says that other principles, standards, or guidelines are not limited or affected, which I do think is useful. However, again, it is a drafting choice not to include a reference to review, sunset clauses, or post-legislative scrutiny, and I wonder why the Minister has made that choice. Thank you.

Thank you, Mr Chair. Thank you for those good questions from Vanushi Walters. Can I just start with the question by Cameron Luxton about clause 8(d), (e), and (f) around taxes, fees, and levies. The basic purpose of this is to reinforce the principle that, in theory, Governments should already be following, that if they raise a fee, you should get what you pay for, and you shouldn’t pay for more than what you get.

Cameron Luxton asked who might be a group that would benefit. I’ll give you one example. The Government recently considered the fees that are levied on abattoirs to fund vets who then go and inspect the abattoir to check that the meat is being prepared in a hygienic way so it won’t create reputational risk to New Zealand. In that case, it is primarily those in the meat industry who are paying the fee; they also get the benefit. Then there’s a question of “What is the true cost of doing this, and is it fair?” The Government scrutinised a whole lot of that, whereas we wouldn’t want to have a fee that was being levied on one group of people and then used to fund somebody else that didn’t actually benefit that group directly. That should be done under general taxation.

I’ll just come back to something that, I think, Francisco Hernandez said—“Why not merge the takings clause, clause 8(c), with ‘Taxes, fees, and levies’?” Yes, a tax is different. In our tradition, there is fiscal policy where the Parliament votes to levy taxes and, usually, garnishes a percentage of somebody’s transaction, whether it’s earning income, buying something, owning property—some would suggest—and that is quite different from actually taking property directly, rather than taking some portion of money. They are different things. We have no intention of merging the two.

Then there was a question from Duncan Webb about having, effectively, the same thing that Vanushi Walters has mentioned but in relation to clause 8(b), “Liberties”, that there should be a clause—an out clause, if you like—like section 5 in the New Zealand Bill of Rights Act. I’ve already said that we don’t wish to do that. There is a mechanism in clause 11(b) that does that. That’s been addressed. The Government has no intention of adopting that amendment. I think that was the end of that. If I’ve missed anything, I apologise.

Hon Dr Duncan Webb: The takings. I did a whole lot on takings.

Hon DAVID SEYMOUR: Pardon?

Hon Dr Duncan Webb: We talked about the takings clause.

Hon DAVID SEYMOUR: Oh, the takings clause, yes. He said, “Why not remove impairment and have only takings?” I guess the question is: what is the difference between taking someone’s property and introducing a rule that reduces its value by a quarter or a half or three quarters? In my view, if a regulation deprives someone of the use and enjoyment and value of their property, then the percentage it takes is not really the point. For example, if you want to put a significant natural area on someone’s land, that reduces the value of their property and their use of it. If the whole society wants to do that, then rather than putting the cost on the one poor person who happens to own that piece of land at the time, we should fund that collectively because it’s a collective enterprise, even if it doesn’t take all of their property. There’s a purpose to this. It’s been well-thought-out, well traversed, and we have no intention of changing that.

Then we had Cameron Luxton ask another question about “Good law-making”. These are the paragraphs (i) to (l)—indigo to Lima—of clause 8. These are a series of questions that are comparable to what, in theory, Governments do with a regulatory impact statement to show that consultation has been done. That’s paragraph (i). I think that’s fairly self-explanatory that you should try and consult the people who are concerned.

Vanushi Walters raised a question about that, where she said, “Isn’t that undermining Parliament where everyone has a right to submit to Parliament?” I agree with her about that. But if you go back to the purpose statement of the law, which we traversed in Part 1 yesterday, this is designed to improve the quality of lawmaking by furnishing consistency accountability statements. It’s for the purpose of those consistency accountability statements, not all of Parliament’s lawmaking, that we are doing this. We go on to the importance of carefully evaluating the issue concerned, actually defining what problem we’re trying to solve. Again, problem definitions in regulatory impact statements, I would argue, are not done very well, and some of my recent reports as Minister for Regulation, frankly, have shown that. And there’s the effectiveness of other alternatives. Are there other things that we could be doing? We should have option analysis. Does the public interest require the issue to be addressed? Why are we actually doing this? Again, you have to have a good problem definition. Are there any other options that are reasonably available? Sometimes self-regulation is an option. We should put all the options on the table before we go to the big hammer of using the law to restrict people’s rights to use and exchange their property. Who is likely to benefit and who’s likely to suffer? Often people want to know who this is for. That is a very important thing that, again, the public should be able to see. If the Government’s making a regulation, then cui bono? I’m sure some of the learned people on the other side want to ask the question, “Who benefits?”.

Finally, implementation. This is something added by the Finance and Expenditure Committee, and I welcome this suggestion because if you don’t know how you’re going to implement it, laws can go bad. I would say the Resource Management Act is a good example of that. The implementation in the early 1990s was never done as intended, and I believe that has caused huge problems and costs for New Zealanders. Benefits should exceed the costs. At a societal level, making this law should actually make us wealthier overall. By wealth, I don’t just mean money; I mean general benefits that people might derive and enjoy. You should, at least, be able to say to the public, “This is why we think, overall, New Zealand will be better off with this law.” If you can’t do that, maybe you shouldn’t make the law. It should be the most effective, efficient, and proportionate response to the issues concerned. Once we’ve gone through all of that, we’ve defined the problem, we’ve analysed the options, we’ve weighed up the costs and benefits, and we’ve identified the winners and losers from the law, we should also be able to say we didn’t do any more than we had to, given all of that analysis. That is good lawmaking. I think it’s a very important part of the legislation.

Then Vanushi Walters asked about limits on parliamentary process. She also asked, “Is it early or late in the process?” Again, go back to the purpose. This is to furnish consistency accountability statements. It’s not necessarily putting any restrictions on people early in the process. If you were a Minister making a law, then, of course, it would be smart to start early in defining a problem and doing your analysis and weighing up your costs and benefits so that when you come through to publish a consistency accountability statement on passing secondary legislation or introducing legislation to the House, then you’ve done your work and you can show that your law makes sense in line with these principles. That would be the smart thing for Ministers to do, and I’m sure the Government will be issuing internal guidance to do that.

Hon Rachel Brooking: Do it now.

Hon DAVID SEYMOUR: That is—well, clause 27 requires the issuing of guidance. We can talk about that, too, if the member would like to, but I’ve addressed, I think, all the questions today.

Thank you, Mr Chair. I really appreciate the Minister for Regulation responding to my previous questions. Now, I just want to kind of tie up a few things on the principles section, because we’ve spent a little bit of time on this, and we’re happy to move on soon to the subsequent clauses. I want to just touch on a few of the last things that various speakers have also mentioned but haven’t actually mentioned in a specific way.

First of all, I think, in terms of “Taking of property”, it talks about good justification and impairment—I think it was touched on before. I want to focus on the idea of “owner”. I want to draw the Chair’s attention and the Minister for Regulation’s attention to my colleague Francisco Hernandez’s amendment lodged on 5 November at 20.15.09, which is specifying that for the purpose of clause 8(c)(ii), “owner means an individual only and excludes [any] private company.”

The reason for that is because I see where the Minister’s coming from in terms of this idea of taking of property, but I feel like if we’re expanding it to companies as well, that actually is countering to what we’re trying to do here, because companies—all those are defined as owner or person, you know, a legal person under this legislation. My understanding is it’s not what the Minister’s trying to aim for in this instance. If the Minister’s like, “Actually, you know what, when I say owner, I meant private and not corporate”, then that clarification is sufficient and we can just ignore the amendment.

In terms of the “Taxes, fees, and levies” portion: now, I’m reading this part, in particular I’m looking at paragraph (e) and paragraph (f)(i) when it talks about “goods or services … if the amount of the fee bears a proper relation to the cost of providing the good or service”, and also if the “levy is reasonable in relation to … the benefits that the class of payers is likely to derive,”. I want to check, because that sounds like, under this legislation, a capital gains tax, for example, is reasonably appropriate, because in one way you’re looking at taxes, fees, or levies that are reasonable and proportional to the benefit that the class of payers is likely to derive. So something like a wealth tax, I feel like, would be considered—

Dan Bidois: Back to the bill.

Dr LAWRENCE XU-NAN: This is part of the bill. If you have a question, please make a contribution as well.

The thing is, what we’re doing here is getting a sense of the ministerial intent, because such statutory interpretation is much needed when we are looking the judiciary’s ability to interpret such important legislation. So I do want to check with the Minister in terms of: does it actually mean that something like a wealth tax would actually be reasonable under paragraph (f)(i)?

Lastly, we’re looking at, in terms of the role of court under paragraph (j). My question to the Minister is around this idea of existing legislation. Now, we will see this sort of happening a little bit, and this was mentioned in the previous part as well. When we’re looking at the evaluation—and this might come up again when we’re talking about the board—there is a retrospective element to it, because existing legislation will also be reviewed as a part of this. So I want to check in with the Minister on, kind of, in that case, how long would it take for the board to actually go through and look at reviewing some of these, because, you know, there are—I’m sure the Minister is aware of a lot of not just existing legislation, both primary and also secondary. Is there a particular timeline that you are looking at in terms of existing legislation?

My third question is kind of drawing on from both “Taking of property”, “Taxes, fees, and levies”, and also in terms of “Good law-making”. The Minister before talked about the fact that, you know, if there is a taking of a property and if the taking of that property needs to be, I guess, reimbursed, that it is everyone’s objective to actually do that. If you’re looking at the fact that we’re looking retrospectively under good lawmaking—so something like the Public Works Act surely is encompassed by this, in which case any taking of the private property of hapū and iwi and Māori would naturally be reimbursed as a part of this by everybody—i.e., the Crown. So would that actually, again, mean that we’re going to retrospectively also be looking at a lot of, I guess, the reimbursement of all of the land that the Public Works Act had to take, maybe for good justification? So I wanted to, you know, check on a few of those scenarios. That’s my final question for the Minister.

Thank you, Madam Chair. Dr Lawrence Xu-Nan just outlined, at the beginning of that input, that we have covered Subpart 1 quite substantially this morning, Madam Chair, and I’m sure you have been paying very good attention to the committee stage of this bill.

CHAIRPERSON (Maureen Pugh): Yes, I have.

CAMERON LUXTON: I was hoping, considering the Minister for Regulation’s well-traversed explanations and answers to questions put by this committee this morning, we could move on to Subpart 2, as, after all, there are seven subparts in this part of the legislation.

Subpart 2 is regarding the reviews of Government bills in clause 9, and Government amendments in clause 11. They both are very similar subparts. I would just like to hear the Minister explain how the public should be able to interact with that. What methods are Ministers who are putting up amendments or bills required in this legislation to put forward so that New Zealanders can see how their property and their rights are being regulated? Will that include a Minister actually speaking to such a thing as a statement, or will it just be written in consistency accountability statements—how will the public be able to interact with that? Thank you.

Thank you, Madam Chair, and I thank the Minister for Regulation for addressing the questions that are put to him. I would like to talk about clause 8(d), which hasn’t yet been addressed. This was one that the Finance and Expenditure Committee amended, but, to be perfectly honest, it’s not an amendment which I was supportive of, because the bill as it now is before the House talks about “the importance of maintaining consistency with section 22(a) of the Constitution Act 1986 (Parliamentary control of taxation)”, whereas previously it talked about “Parliamentary control of public finance”. It strikes me, if you’re going to have a Regulatory Standards Bill, that peeling it back to not talk about public spending but only talk about public collection of money—that doesn’t make a lot of sense.

I was actually really perplexed, because this was not a suggestion that came—this was a suggestion, if I remember rightly, that came from officials. I’m simply not clear as to why, if you’re going to regulate or have a regulatory standard, why you wouldn’t have a standard relating to public finances generally and only to taxation. If we’re going to talk about taxation, then the principles of good taxation—there’s a good argument that they should be expressed, as well. So first of all, that’s my tabled amendment of 8.30.28 a.m.

Then the next tabled amendment actually skips—I don’t know what I was doing in the next hour—to 9.45.06 a.m., which is actually about just having a framing of what good tax is, because I think it’s important to identify that tax isn’t just about getting money; it’s also about correct behaviours. There’s that whole idea that you don’t want to have a tax system that perversely changes behaviours, but you can have a tax system that encourages good behaviour, whether it’s an environmental tax or whether it’s the way in which our income tax system works, or, indeed, the way in which a capital gains tax system might work. So my tabled amendment of 9.45.06 a.m. says that the purposes of a tax system are to raise revenue, to finance Government expenditure, and to correct behaviour or market failures—I mean, cigarette excise tax would be a good example of that.

There are a number of other suggested amendments, but I’m actually not going to talk to them around the tax framing, because I know the Minister will have looked at them and I’m sure he’ll be able to do that. But in terms of taxes and levies, there is a good argument to say that, if we’re going to talk about that here, we need—and this is my 8.30.30 a.m. amendment—a taxes and levies framing that says it’s appropriate to have a levy across an industry where it’s not appropriate or practicable to differentiate across all goods and services. This addresses the issue where you might have a licensing regime and there’s different classes of licences, there might be different costs of testing, but in practical terms, whilst it’s possible, it’s not effective or efficient or practical to differentiate. That’s why I would suggest we have a framing in terms of taxes and levies there. I don’t need my full minute for those framings, so I’ll let someone else have their call.

Thank you, Madam Chair. If I can quickly address Dr Lawrence Xu-Nan’s reference to clause 8(c)(ii) and its definition of owner. He appears to want to amend that so that an owner can be an individual, not, for example, a trust or a company. I think sometimes people forget just how many New Zealanders actually use things like trusts and companies to hold their assets. It’s actually not just big bad corporations that some people like to bedevil. Actually, it could be a tradie with a limited liability company. It could be the person at the corner dairy. It could be someone in your family who holds property in trust perhaps to protect themselves in relationship property. So, no, the owner should not be limited just to a person.

Lawrence Xu-Nan asked, hopefully, would a capital gains tax be allowed under this legislation—

Dr Lawrence Xu-Nan: A wealth tax.

Hon DAVID SEYMOUR: —or a wealth tax, he says. No, this bill wouldn’t stop that if the Parliament wanted to pass such a law. The voters, on the other hand, might have something to say about it. He suggested that somehow doing reviews of existing laws was retrospective. It’s actually not, because no review would change the law for prior cases. The review might lead to changing the law for future cases. But that is not retrospectivity as most people understand it.

He asked if Public Works Act compensation would be paid to Māori who had had land taken under the Public Works Act. Actually, the whole point of the Public Works Act is that no matter what your background, you get compensation if your property is taken. So that wouldn’t be necessary for Māori or any other person.

We had a question from Cameron Luxton, but that was about the next subsection, so I’ll just go to Duncan Webb. He asked about the change that the select committee made to clause 8(d) to restrict it to section 22(a) of the Constitution Act 1986 so that it was parliamentary control of public finance rather than taxation. The reason for that is that the intention here was always taxation. It was a drafting error. The full section 22 of the Constitution Act also refers to Government borrowing and spending of public money and this is about taxation, not the other two things that Government can do with public money. So that restriction has been done deliberately and purposely. We have no intention to change it.

Finally, Dr Duncan Webb asked if we should put the principles of good taxation into the law. He may have forgotten, only two years ago, when his party was in Government they actually passed an entire piece of legislation called the Taxation Principles Reporting Act. So it would be strange to now want to put that same thing in this piece of legislation. The Government has no intention of doing that.

Cameron Luxton asked about Subpart 2 and, I believe, Subpart 3, which relate to how these principles are used in relation to consistency accountability statements and how the public can interact with that, should the Minister speak to it.

As I’ve said quite a few times now, the purpose of the bill is to support good quality lawmaking, and the main way it does that is by providing these consistency accountability statements to the House when a Government bill is introduced. The Minister must either link to a statement published on an internet site or make a statement briefly explaining the Government’s reasons for inconsistency, which also answers the earlier question from Vanushi Walters about why we have a section 5 New Zealand Bill of Rights Act equivalent.

There are, of course, times when you don’t have to have a consistency accountability statement. Those are times such as when the legislation is that listed in Schedule 1. That’s derived from Part 1, which we debated last night, so I won’t go into the definition of that law. The committee has dealt with that already. However, the question around, “Well, how will the public and the Parliament and the Minister interact with it?” Once the public see the statement published under the authority of the House, then there is ample opportunity for public debate about, “Well, do we like this law? Are we aware of all of the impacts that it will have on people, liberties, and their property rights? Was the law made well and did they consider all the options?” So it’s precisely to inform public debate. I think a lot of people will really welcome that.

Also Subpart 3, he referred to responsibility to engage in regulatory stewardship. This is something that Lawrence Xu-Nan also got into tangentially. There’s a requirement for chief executives to prepare a programme of retrospectively—not in the sense they’re going to change the law retrospectively—going through the stock of existing legislation that that chief executive is responsible for under the Public Service Act, and going through and checking each of those pieces of law against consistency accountability statements and reporting on whether changes are required. There’s no timeline on that, as there was in the bill as introduced. However, I believe that that will be a very useful way of applying the principles.

Thank you, Madam Chair. I’m just jumping to clause 11. Some of my colleagues may still have questions on some of the previous clauses, and I think this is where this question best applies. The Minister for Regulation, in his previous remarks, made commentary around how a lot of these statements would be in relation to the introduction of bills. Clause 11 talks about Government amendments.

One of the recent examples we have seen over the term has been that the Government often introduces quite major amendments to bills at the committee of the whole House stage after the select committee period. Some of these amendments actually make substantive changes to bills, so I wanted to test with the Minister as to whether clause 11 is the place where that may capture, for example, Ministers throwing in amendments between the select committee stage and during the committee of the whole House stage that may actually substantially change the bill or add components to a bill that are quite significant.

The reason for this is that because if we keep talking about, as we have referenced previously, high-quality lawmaking, does he think that such amendments would change a bill really substantially? For example, we had the medicines bill just recently, which the Minister was in charge of. It added a whole new part around medical conferences. And, for example, if I recall during that debate, the Minister kind of made an offhand remark around the revenue. He didn’t have the figure at the top of his head and kind of just—you know, we just had a revenue figure thrown at us at the time and without any substantiation or sort of corroboration of it.

My concern is, for example, would that have met the principles of good quality lawmaking? And would the provisions in clause 11 around Government amendments help mitigate any of that? If not, at which point does the Minister believe that the provisions of Part 2 of this bill would help create safeguards for Government Ministers—such as himself—introducing amendments during the committee of the whole House stage without any sort of information to substantiate the benefits or the merits of those very same amendments that would have not been discussed during the select committee stage?

I raised the recent example of the medicines bill, but actually throughout this term we have seen quite a few significant amendments making major changes to bills. I can see my colleagues on my right, I think, have some examples. My reason for that question, again, is: if clause 11 isn’t where that would create a level of safeguards against Ministers substantially making changes to bills at the committee of the whole House stage without select committee scrutiny, where would he ensure that there are protections in place so that Ministers cannot bypass these principles by simply just putting a bunch of amendments in at the committee of the whole House stage, way after it’s been introduced and way after the bill has had select committee scrutiny? Otherwise, I can see a really easy bypass for a lot of these tests for the Minister to just add a bunch of amendments later down the line at the committee of the whole House stage without adequate scrutiny, without this testing applied. So I’m really—

CHAIRPERSON (Maureen Pugh): I think your question is well understood—

RICARDO MENÉNDEZ MARCH: Yeah.

CHAIRPERSON (Maureen Pugh): —and you’ve repeated it twice. So is there anything else you’d like to add?

RICARDO MENÉNDEZ MARCH: Well, if the Minister doesn’t have an explanation, does he think—

Hon David Seymour: Madam Chair?

RICARDO MENÉNDEZ MARCH: Thank you. There we go.

If he’s that eager, I usually answer—you know, I wait for three or four and then answer them. But I’d invite the Minister to read a bit further down—

Hon Members: Member.

Hon DAVID SEYMOUR: Sorry—member. Yes, I apologise. I’d invite the member Ricardo Menéndez March to read a bit further down to clause 12, which sets out, under paragraphs (a), (b), and (c) of subclause (1), three circumstances where a consistency accountability statement is not required. That is, if it is a kind of bill that is exempt from the law generally—that’s in Schedule 1, which we’ve discussed—if it’s not reasonably practicable to comply with clause 11 before the scrutiny occurs—so there will be people who will argue whether they’ve met that criteria, but it still puts an onus on them to meet it—or if in the opinion of the regulatory standards Minister, the Government amendment would not materially change the bill.

Now, if he goes a bit further down, the responsible Minister must ensure the statements required are presented to the House as soon as possible. If they have used the exemption under clause 12(1)(a) or (b), they still have to present it as soon as practicable after the bill is introduced to the House. So they don’t actually get out of producing it; they just won’t produce it in time. The law is clearly designed that that should be in very limited circumstances.

Thank you, Madam Chair, and thank you to the Minister for Regulation for some of those answers thus far. Before I leave clause 8 of the bill, I just did want to ask the Minister one question about substantive versus procedural checks—so substantive rights versus procedural rights—and his view on that, and then I’ll move on to clause 9.

I know that when the New Zealand Bill of Rights Act was debated and then agreed, there was an active drafting choice not to include a right to property. Sir Kenneth Keith wrote about this in an article in 2013 as well, where he talked about the difficulties that the US have faced in terms of understanding the scope of the right but then also balancing that right in terms of their rights space. The lien in the New Zealand Bill of Rights Act was a procedural set of rights, essentially, and the understanding behind that was that it was for Parliament to decide the scope of substantive rights and how they might play out.

My question to the Minister asks whether he believes that constitutional checks such as this should include substantive rights. I understand that he says that what this bill is doing is looking at how the Government’s action is impacting people in terms of particular areas. That still does create an effect, almost a ghost or a shadow property right. So is it the Minister’s view that those substantive rights ought to be part of constitutional checks?

Now, the reason I ask that is that if his view is yes, then it wouldn’t make sense to discriminate against which set of rights could potentially be in that space, and potentially at some stage in the future, in the same way, we could see economic, social, and cultural rights or environmental considerations also part of an assessment of the sort. Or is it his view that no, that is a realm only for the procedural, as was the view taken by our predecessors when they negotiated and passed the New Zealand Bill of Rights Act? So that’s my first question.

I move now to clause 9, the review of consistency of the bill with the principles. The language that is used in the bill echoes the language of the New Zealand Bill of Rights Act. It says that if a Government bill is introduced into the House of Representatives, then these checks should be made. Now, similarly in the New Zealand Bill of Rights Act, we have section 7, where if a bill is introduced to the House, the Attorney-General then has the responsibility to conduct a check against the New Zealand Bill of Rights Act. An issue that has become clear as we’ve seen bills travel through the House is sometimes you can have rather substantive amendments to bills as they travel through the House that potentially prima facie do engage the New Zealand Bill of Rights Act and should have had a second vet if we believe in the idea that the House should, with eyes wide open, assess compliance with the New Zealand Bill of Rights Act.

Now, in a similar way, one could argue that if one was encouraging best-practice lawmaking processes, this set of principles should also have a second review should substantive amendments be made to legislation as it travels through the House. Now, this isn’t something that I’m making up. We’ve seen it come through the House this term of Parliament. When I left the Parliament in the last term, there was a bill travelling through the House relating to consent law and ensuring that consent provisions and how the police charge were consistent in terms of what we believe consent law to be. As I came back into the House in this Parliament, there was a significant substantive amendment that talked about name suppression and how name suppression would be handled in criminal cases. There was no second New Zealand Bill of Rights Act vet in that case, so the House did not have eyes wide open as it travelled through the House. I believe the gang patches legislation is another example of where there were substantive amendments that the House should have turned its mind to.

I have a particular interest in this as I have a member’s bill currently in the tin relating to the New Zealand Bill of Rights Act and ensuring that the House has eyes wide open in relation to amendments made there. So what is the Minister’s view? Is it intentional that it was only at introduction or potentially something that the Minister thinks may be a flaw or something that could be amended in the bill?

Thank you, Madam Chair. I’m just reflecting on a topic that was raised by the previous Greens member to speak, Ricardo Menéndez March—that was around amendments tabled in the committee of the whole House stage and the conversation around how we have a select committee process, where members can talk out a bill and come together with a finalised bill to bring to the House, where they’ve had opportunities to have discussions around changes that may be made to the bill, and they come to a conclusion that this is the bill we’re going to bring to the House. I’d like to draw the attention to the 85 amendments that were tabled on 4 November by the Hon Dr Duncan Webb, and I’d just like to ask the Minister for Regulation: are there any of those amendments that the Minister will be considering today to accept? To make this a better process, some of these amendments could have been spoken to in the committee stage. Does the Minister feel that any of those 85 tabled amendments for Part 2 from 4 November are actually worth traversing over again; and will the Minister be accepting those amendments?

Thank you, Madam Chair. The member Karen Chhour needs to count. I think it was 131 amendments, actually, and every single one of them would improve this bill. Had the member been in the Chamber at the outset, she would have heard the Minister say that he doesn’t propose at the present time to support them, but that’s why we’re here: so that we can talk about them and persuade the Minister that, in fact, these are great ideas.

One of the ones I’m interested in—and it’s another one that came out of the departmental advice—is clause 8(ja), and it’s an outlier because this is the clause that says a principle of good regulation is “the importance of the responsible agency identifying and developing effective arrangements for implementing the legislation:”. The Minister himself has sort of brushed aside some suggestions on the basis that, “No, these are all principles of a particular nature.”—essentially, a checklist for when you go through legislation, to say, “Yes, it meets this quality standard.”—whereas this here is actually highly operational. It kind of sits really oddly. I guess my two tabled amendments, and they are clearly alternatives, suggest either that we just do away with it, because it’s not actually a principle of good legislation—it’s a principle of good government or good bureaucracy to make sure you’ve got the resources, you’ve got the people, you’ve got the education, and you’ve got all of those procedures in place to implement your legislation effectively. It’s not about the rules; it’s about the operation of Government.

If you are going to do it, the other way to do it would be to actually explain exactly what you mean, rather than just saying, “identifying and developing effective arrangements for implementing the legislation:”—not only do that but also ensure that appropriate resources are devoted to implementing the legislation. This is my tabled amendment filed at 9.20.13 a.m. Ensuring that people affected by the legislation are aware of its import and how to comply with the provisions, as required—that’s the educative piece. I don’t think anyone has spoken to this particular subclause of clause 8, but I am interested to know why it is in there. It’s an outlier clause talking about how Government should operate rather than how it should legislate. What exactly does it mean? Does it mean, for example, that you have got to have enough money to do the job that you’ve been asked to do and that you need to get out and educate, and so on and so forth?

I’m going to skip over a couple of tabled amendments, because I know the Minister has read them and he’ll have thought very carefully about them, but there is one thing in terms of costs and benefits. That’s my tabled amendment filed at 9.20.15 a.m. Whilst economists will understand what’s meant by “cost”, most people think it means only fiscal costs. Another way to express that, and this is my suggestion, is to replace “costs” with “detriments”, because the downside is what we’re interested in. Whilst some economists would frame costs by taking a detriment and putting it into a number—a money number—another way of accounting is simply to look at them and balance them in the round, including all downsides. Some of those downsides that are hard to measure are loss of social cohesion, or loss of enjoyment of life, and things like that. I’d be interested in those two things: why have we got this outlying clause about effective implementation, and then, in terms of costs, would it not be better to have a slightly more expansive kind of term so that people coming to this legislation will understand that any downside is a cost, not just monetary or fiscal or other easily measurable downsides?

Thank you, Madam Chair. I want to move on to clause 13, accepting, of course, that, you know, my colleague Duncan and others around the Chamber still have some stuff from previous sections. But, you know, I’ve learnt from previous sections of the committee of the whole House that if you don’t ask the question you want to ask when you get the time, you might not get the chance to.

So I want to ask a question about the secondary legislation section, particularly clause 13, “Review of consistency of secondary legislation with principles”—this is clause 13(1)(a), 13(1)(b), and 13(2)—and I want to ask, first of all, whether there is a working definition that the Minister is using for secondary legislation, and, number two, is there is a materiality threshold in which secondary legislation is captured under this?

Secondary legislation can apply to all sorts of things. It can apply to regulations, it can apply to Orders in Council, it can apply to rules, notices, and local authority by-laws. Does the Minister anticipate that everything in that bucket will be captured? I’ve just checked the secondary legislation website. I was doing some research earlier, and in 2024, 307 pieces of secondary legislation were made and were uploaded just on the New Zealand Legislation website. I know that that doesn’t encompass all the secondary legislation that gets developed, including local authority by-laws, crucially.

I know that in 2025—and there’s still two more months left of the year—259 pieces of secondary legislation were made. So is the Minister’s intention with this legislation to capture every single piece of secondary legislation that gets developed and proposed, or is there more of a materiality threshold? Is there any expectation of adjusting the consistency accountability statement depending on, I guess, the length of the secondary legislation at hand? Is there any expectation that, you know, if there’s just a council by-law, for example, if council by-laws are even captured in this, that regulates walking your dog in the park, for example, it will have an assured consistency accountability statement versus a more complex set of regulations—for example, emissions trading scheme regulations that might govern some more fundamental and wide-reaching things?

So just to recap my question: what is the working definition of secondary legislation, is there a materiality threshold, which secondary legislation is captured, and does that include all local government by-laws, for example? I know that if we check Schedule 1, it does refer to local Acts, but I don’t believe it captures—I think it just captures when you make a local Act in Parliament and then, like the one we had with the Auckland Future Fund, it doesn’t actually include local government Acts. My third and final question was around whether there is an expectation that the consistency accountability standards are proportionate to the secondary legislation that’s being reviewed.

If I could just address these questions. Vanushi Walters asked, “Is this the substantive or procedural rights that are set out?” She was arguing that the New Zealand Bill of Rights Act has procedural rather than substantive rights, but the New Zealand Bill of Rights Act actually does set out a number of what I would regard as quite substantive rights—freedom of expression, association, and so on—along with procedural rights if you’re to be arrested. I think, in this case, we are setting out rights that a consistency accountability statement (CAS) should take account of. That, as I’ve said a number of times now, is the purpose of the Act—to produce those CASs. She can argue that it’s a procedural right to have a CAS and that the rights within it are substantive, but I’d also remind her of clause 24, which says that this doesn’t create justiciable rights that can be upheld in a court by an individual. I hope that addresses her question. The answer is: both, at different times.

She also asked, “Is there a second vet on an amendment introduced by a Government bill?”—as, I understand it, she is attempting to do with the New Zealand Bill of Rights Act, so there would be secondary New Zealand Bill of Rights Act opinions on amendments to Government bills that are introduced later in the lawmaking process. Well, the intention here is that, certainly, there will be a second vet, if you’d like to call it that. This bill comports with what she’s trying to do with the New Zealand Bill of Rights Act, so I hope that she’s pleased to hear that.

Karen Chhour asked: will the Minister accept any of, I think she said, 85 amendments? Duncan Webb boasted that there are actually 131, and I think that, in itself, probably tells you something. Certainly, I haven’t seen any I’d like to adopt yet, and, for each one that Dr Webb has raised, I have been able to give a reason why the Government doesn’t intend to adopt it. So, in answer to Karen Chhour’s question: no, there are no more that we want to adopt, and, for every one that has been brought up, I have been able to explain why not, and that will continue. It’s just a question of how much time people want to spend on it, and I think when someone produces 131 amendments—many of which I’ve been able to show are quite misguided—people will make their own judgment of that.

Then, funnily enough, the next question was Duncan Webb asking about an amendment. He said that he wanted the implementation clause removed because he felt that it was more procedural than to do with resourcing of Government departments. No, as I explained in my previous answer, the Resource Management Act (RMA) is a very good example of what happens when there’s not a clear plan. It doesn’t mean the plan has to be resourced at the time—that’s a separate funding decision for a Government and its Budgets—but you have to at least have a plan of how you would implement it, and, if we’d done that with the RMA, I suspect New Zealand would be a significantly wealthier place.

Then there is the question of whether the word “costs” should be replaced with “detriments”. I just would refer the member to George Orwell, who said to never use a foreign phrase such as the French-derived “detriment” when an everyday Saxon equivalent such as “costs” is available—it’s much easier to understand, and it saves a few letters, and, in a funny way, demonstrates a certain amount of class. So we won’t be adopting that on the basis of good style and taste, and I highly recommend the essay “Politics and the English Language” to Dr Webb so that he doesn’t fall down the rabbit hole of using increasingly verbose diction. Fernando Hernan—sorry, Francisco Hernandez—

Ricardo Menéndez March: How many times will you get it wrong?

Hon DAVID SEYMOUR: —I apologise to the member—

Francisco Hernandez: We need to set up a tip jug.

Hon DAVID SEYMOUR: I really like his name. He asked if secondary legislation is included and how it is defined. First of all, he referred, I think, to clause—I don’t have the clause number in front of me, but the subclause after that refers to the Legislation Act, and that is indeed where the definition of secondary legislation can be found. It’s also useful to see that it’s the maker of legislation—that may be a new term to some people; it was to me when I first got involved with this—but the maker can include a council. People who are worried about councils making by-laws that violate their rights or are not well made can be assured that that could be counted as secondary legislation. The council will be required to publish a consistency accountability statement when publishing the by-law, just as you would be required to do when publishing secondary legislation.

I move, That debate on this question now close.

I’m starting to lean that way. I’ve been in the Chair for 45 minutes, and we’ve made very little progress, and we’ve traversed, as I can see, many of the topics more than once, so I’ll be looking for very new material, please.

Thank you, Madam Chair. This is a very important bill. Clause 8 is the most substantive clause, and we have taken some time on it as we’ve gone through it subclause by subclause, but I think that’s entirely appropriate.

I want to talk about some tabled amendments that I have which suggest giving some kind of navigation lights, if you will, identifying what the kind of hierarchy of principles is. So these tabled amendments were lodged at 9.45.10 a.m. through to 9.45.12. One of the things is kind of the primacy question that you’ve got these principles of good regulation but they don’t necessarily override other principles of good regulation. Whilst clause 8A says “The principles set out in section 8 do not limit or affect any other principles,”, my suggestion is that you should actually say in a proposed clause 8B, “None of the principles expressed in section 8 supersede the principles of the Treaty of Waitangi.” So that would essentially be saying that the Treaty is at least on par. You could say that the principles of the Treaty of Waitangi are more important but at least they do not supersede.

The next proposed amendment would actually say—and this is the point made by the Commissioner for the Environment, which would insert a new clause 8C—“Nothing expressed in section 8 confers a right to pollute water or air or to contaminate soil or destroy significant biodiversity, including indigenous biodiversity.” So, again, essentially, you could just say that environmental sustainability is a preeminent principle.

Then, the next one is a tabled amendment filed at 10.25 a.m.: “None of the principles expressed in section 8 supersede New Zealand’s duties or commitments under international treaties or agreement.”

So I do think there is a lack of signposting. This clause 8A is good in as far as it goes, in that it says that there are other principles of responsible regulations or guidelines, or whatever, but there is no saying “And these ones are really important, and these ones aren’t as important.” Clearly, you can consult and then absolutely run roughshod over the principles of the Treaty of Waitangi, and that would not be good regulation; you could run roughshod over international human rights obligations, and that would not be good regulation. So what we don’t have is, essentially, a system to say “Well, these things are really important, these things are fundamental, and these things are, essentially, procedural and operational.” Yes, consult, but don’t consult and then, on the basis of that consultation, go and do something which is really bad lawmaking. Go and talk about your takings principle, but don’t prioritise your taking principles over fundamental human rights. That’s the risk that we have here.

So that’s why, in talking about clause 8A moving along, I have proposed not only 8A but also some additional clauses which would show those hierarchies. Thank you.

These matters raised by Dr Duncan Webb have all been traversed extensively. There’s been a number of members who have raised the prospect that there should be some form of clause referring to the Treaty of Waitangi as a lawmaking principle. I’ve explained at length why the Government doesn’t have an intention to do that.

He’s certainly correct that clause 8A allows a consistency accountability statement to be prepared with other criteria if a Minister or a department wanted to do that. The suggestion that there should be a hierarchy of principles is not something the Government is willing to accept. In our view, it’s equally important that a person’s property and liberties are taken account of and that the law is made properly and that, if a fee or levy is raised, then it’s actually used for the purpose that it was advertised for. We don’t see a criteria for making a hierarchy amongst those objectives.

I move, That debate on this question now close.

Point of order. Thank you so much, Madam Chair. I just wanted to note that Subparts 3, 4—

CHAIRPERSON (Maureen Pugh): What is the point of order?

FRANCISCO HERNANDEZ: —5, 6, and substantial pieces of this legislation still have not been covered yet.

CHAIRPERSON (Maureen Pugh): What is your point of order?

FRANCISCO HERNANDEZ: That is my point of order. To take a closure motion at a time when substantive—

CHAIRPERSON (Maureen Pugh): Excuse me! Who took a closure motion?

FRANCISCO HERNANDEZ: Sorry—to raise a closure motion, as the member—

That is entirely the member’s prerogative, and it’s my choice whether I accept it and put it. I don’t need your guidance on that, thank you.

Thank you, Madam Chair. I wanted to speak and ask the Minister for Regulation a question about clause 13, “Review of consistency of secondary legislation with principles”. We had a number—a wave, a landslide—of submissions, of course, in relation to this bill, in opposition of this bill. One that stood out for me was not in the primary hearings on this. It was actually Geoffrey Palmer, who spoke to the Regulations Review Committee in public session, and I sat in on part of that session. He raised the very serious issue of the lack of clarity for the public because of this duplication and roles between the work that would happen that’s described in clause 13 and the functions of the Regulations Review Committee, whose job it is, also, to scrutinise regulatory making powers but also draft regulation, as well, and then regulation, once it’s made, against a set of criteria that are set out in our Standing Orders.

This is where the rubber hits the road, really, is people being able to—or not understanding—what’s going on; whether something is good legislation—whether something is good regulation or not. We have a set of cherry-picked principles, on the one side, where a report will be produced or regulators will turn their minds towards those principles as they’re making regulations. We have a second set of principles that the Regulations Review Committee will be looking at, and these are contained in Standing Order 327, where they pay attention to grounds such as whether secondary legislation is “in accordance with the general objects and intentions of the enactment under which it is made”—so that’s whether it’s vires or ultra vires, outside the power—but, also, whether it “trespasses unduly on personal rights and liberties”, and then a number of other criteria, as well.

The public could, essentially, be faced with a situation where you have an opinion from the Regulations Review Committee that makes one statement about whether the regulations are lawful within the context of the parameters of Standing Order 327, and a very separate report that comes out as a result of clause 13. The two, quite possibly, could be contradictory or could rub up against each other. So, firstly, just wanting the Minister’s acknowledgment that, yes, that plausibly could occur. If that were to occur, what is the Minister’s view about which should prevail; what the public—or the judiciary, as well—should read into that in terms of the lawfulness of the regulation?

Now, Geoffrey Palmer’s suggestion here was that this could be fixed by a simple direction that the Regulations Review Committee’s role was the primary role in this space—as it should be, as a committee of Parliament comprised of parliamentarians. However, I note that—again, a drafting choice—the Minister has decided not to include that direction or that clarity within the bill, and the question is, really, why not?

I move, That debate on this question now close.

The only reason I’m not going to take that closure motion is because there is some scope towards the end of Part 2 that hasn’t been covered. I invite members to focus there.

Thank you, Madam Chair. I want to move to clause 15. Clause 15 talks about regulatory stewardship and the responsibility of chief executives. The funny thing about this bill is that a whole lot of what it does is done in the Legislation Act, and that’s going to be cut out, and a whole lot of what it does is actually done in the Public Service Act as well, so you’ve got this kind of overlapping sense of obligations. I mean, that’s why the advice the Minister for Regulation got was that this bill’s not really needed.

But one of the interesting things is in clause 15(2), it says that the obligations of regulatory stewardship apply in relation to a chief executive if they’re a Public Service chief executive, and a responsible agency—which is kind of non-departmental—only if it’s a Public Service agency. What this effectively does is carve-out legislators who are not Public Service agencies. You don’t necessarily think about it, but there’s quite a lot of NGOs—it was a funny way to put it, but people like the Law Society; the Plumbers, Gas Fitters and Drainlayers Board; and various other industry bodies, in particular, who get to set their own rules. You’ve got this delegation to make rules, but the quality standards set out in this bill appear only to apply to Public Service agency delegates, people who are within that kind of loose circle, sometimes a little bit vague, but can be described as in the Public Service.

So in terms of the obligations of a chief executive to engage in stewardship—that’s clause 15(1)(a)—and to ensure that the responsible agency does all these things, why is it that the Law Society, which actually has several rules, lawyers and conveyancers conduct rules, solicitors, nominee mortgage company rules, and various other rules—that’s just the example I know best. Why is it that they seem to fall outside of the stewardship obligation? So that’s why, in my tabled amendment 10.45.05 a.m., I’ve suggested why not just say “a responsible agency”, whether it’s a Public Service agency or not, because that would seem to be a sensible thing to do.

The other thing is this: the second tabled amendment suggests that we delete clause 15(3), which says, “the chief executive is responsible only to the Public Service Commissioner for carrying out the responsibility under subsection (1).” Well, firstly, this isn’t part of the legally binding clauses, so that means nothing, and the other thing is it’s entirely duplicative of the provisions about chief executives in the Public Service Act, which already say chief executives are responsible to the Public Service Commissioner for stewardship obligations. So this is another example where, in fact, it’s muddying the waters, because you’ve got this statement about responsibility in a part of the bill which creates no legal obligations, and it overlaps with an existing statement in the Public Service Act. So my suggestion is not only is that duplicative; it’s actually dangerous, because it confuses what the obligations are by putting it in two places which seem to have two separate obligations.

Thank you, Madam Chair. I want to discuss with the Minister for Regulation and seek the Minister’s advice on a section that hasn’t been covered, and we are moving through the parts. I have a few questions on Subpart 2 before moving on to Subpart 3.

In terms of clause 9, the Minister has very helpfully reminded the committee before that the key purpose of this bill is to hold the executive accountable. I wanted to check: when it comes to “(b) a statement from the responsible Minister that briefly explains the Government’s reasons for any inconsistency”, mainly because we’re also currently going through the Standing Orders review, I ask whether the Minister would consider that a debatable motion on what that inconsistency could imply is a way of holding the executive accountable for any inconsistencies. I ask whether that’s something that the Minister has considered, and whether, for example, that is something that what is currently being undertaken in terms of the Standing Orders review should also consider.

I want to pick up, again, on one of the things that was mentioned in terms of clause 12, when it comes to what is meant by “reasonably practicable”. This is further on from a response that the Minister gave before where the Minister said that if it’s reasonably practicable that a Government or a Minister has not had a chance to produce a consistency accountability statement (CAS) before an amendment has been released, it sounds in clause 12(1)(b) like that is OK. But I ask then whether the Minister has considered what “reasonably practicable” in this case means, or how often is it being used? For example, we’ve seen certain conventions in the rules within our own Standing Orders, but we have seen that being stretched in terms of the number of urgent sittings that could be considered, or it is about how we interpret the rules around urgency. What sort of safeguards would the Minister have in terms of that, and what’s to stop everything from coming through?

While I think that it was not reasonably practicable for us to produce a CAS before we released that particular amendment, was it then, again—you know, combining it with the Standing Orders review that’s currently happening. If a Minister could not reasonably practicably produce a CAS as part of a Government amendment—because, again, I think that one of the things that we have heard from a previous speaker was that there was a clear difference between what is a Government amendment, which is covered by this bill, and members’ amendments. That, I think, has been addressed in terms of the amendments by the Hon Dr Duncan Webb.

Again, in those cases, I ask whether it is something for the Standing Orders Committee to be aware of, which is that if that reasonable practicability test is not met, then it, potentially, will need to require a debatable motion. So I’m curious to hear on that from the Minister, and I think that how it relates to our Standing Orders is not something that has currently been touched on.

Moving on to Subpart 3, I’m looking at clauses 16 and 17, and this is all to do with some of the cycles that have been introduced. I think we haven’t at this stage moved this far into Part 1, and so I’m quite happy to continue moving on through the bill. In this case, it talks about having four-yearly briefings on the state of the regulatory management system, and I think that the fact that there is a review clause in there is really encouraging to see. But I wanted to check this idea of “at least”, and ask if the Minister wouldn’t mind providing some examples or circumstances. Under what circumstances would the regulatory standards Minister require the chief executive of the regulatory standards ministry to, potentially, give a briefing before the four years are up? Is there something that is quite egregious and that might happen that would mean that a briefing wouldn’t be taking place earlier?

Finally, in terms of clause 17, we’re looking at the term “responsible agency”, and there were definitions of “responsible agency” earlier, but I won’t touch on that. For the regular reviewing of the legislation, again, I ask has the Minister considered what that period for regular reviewing is. Are we expecting the responsible agency to do it annually, quarterly, or, at some point, can it be flexible? There isn’t a fixed term because there is flexibility that’s required, depending on the size of the particular responsible agency. We know that some agencies—oh sorry, that’s me. [Time expired]

Thank you, Mr Chair. I’m just going to take the advice from the Chair earlier in this committee to move this debate along a bit, because we have rehashed a few topics, and the Minister has been incredibly responsive to those rehashings.

I specifically would like to know about Subpart 5 and how the Minister sees clause 24 operating: the Act does not confer or impose legal rights or obligations. Could the Minister speak about why he thinks that is a clause that needs to be included in this bill—also, the fact that, as it says here in clause 26, the “Act does not regulate reasons”, and how that interacts with statements that Ministers need to publish or give to the public about the reason, or not, for regulations, in regards to a regulatory statement, enacted in this bill from earlier parts, which we have traversed.

Also, Subpart 6, “Guidance”, “The regulatory standards Minister and the Attorney-General may jointly issue guidance that sets out recommended best practice”—the Minister has touched on this earlier, but I just think it would assist the committee if we could have an expansion on what that would look like, going forward. Thank you, Mr Chair.

Thank you, Mr Chair. I actually just had a brief follow-up question for the Minister about clause 13. He answered my previous question in relation to this clause, but I had a follow-up in terms of the role of the Regulations Review Committee and their work and their interaction with the statements that will be produced under clause 13.

As the Minister will know, the committee receive complaints from time to time, and they have direction in the Standing Orders in terms of what the grounds of complaint can be. The Minister referred to the fact that the committee could view the statement as part of their consideration when making decisions in regard to a complaint. I’m interested to know whether the Minister’s view is that that is required or that it’s purely a relevant consideration and the committee has complete discretion as to whether they consider it or not. It is important, in my view, because much of New Zealanders’ lives are governed by regulation as opposed to primary legislation, and it is very, very relevant what the Regulations Review Committee determines because, as we know, there is a power of disallowance. The House has done it before, and it can have quite far reaching implications when the House decides to disallow a regulation.

At present, we have Standing Order 327(2)(a) to (i), which set out the grounds that the committee considers. The committee receives advice and legal advice in terms of determining whether those grounds have been made out. If I were a complainant to the committee, I would want to know whether the committee were required to turn their minds to the substantive shadow rights that are included or, again, whether that is for the committee to determine.

I’d like to address the last four contributions. I’ll start with Vanushi Walters and also Lawrence Xu, both of whom asked very similar questions. Lawrence Xu-Nan asked will we require debate in the House on whether a consistency assessment statement is appropriate or whether not presenting one due to it being impractical is appropriate. The answer to that is no. This bill does not interfere in the workings of the House. The House is sovereign. It makes its own rules. No legislation can tell the House what to do, including this legislation, which, as I’ve now said quite a number of times, is designed to improve accountability of the executive to the House and, therefore, not to tell the House what to do.

Similarly, the procedures of the Regulations Review Committee—that’s not something this legislation can change. So, no, they would not be required to consider a consistency accountability statement, unless, of course, the Standing Orders Committee decided to make that a requirement for them under Standing Orders, which could happen but not under this bill. Indeed, consistency accountability statements will still be very helpful, I would think.

Duncan Webb asked about why this requirement to review legislation only applies to Public Service agencies. That’s because they are the stewards of the vast amount of the legislation. It’s true there’s a lot of other people that make rules, from the Law Society to the Hora Hora rugby club. However, this is focused on the executive reviewing its stock of legislation. It might also interest the member to see that it’s a maker, as I’ve previously mentioned. He mentions that it’s required to produce consistency accountability statements at the beginning of the process, and the Law Society that he referred to is indeed a maker under the Legislation Act and, therefore, would be in scope for new rules.

Just before I go on—I have been watching this debate for the last hour. I’m well aware of the rulings and the warnings of the previous Chair. There’s a lot of material that has been covered. Standing and asking a question for five minutes and asking the same question many times is getting a little bit repetitive. What I’d ask of members now is some genuine new material which is identified at the start of the question as being an area that hasn’t been previously covered. That will be a consideration for any closure motions which are coming from my right.

Thank you for that guidance, Mr Chair. I want to talk about clause 16, which hasn’t been talked about yet, and I want to talk about the cycle of briefings, and a number of other things.

Clause 16 talks about four-yearly briefings, and this is that the chief executive of the regulatory standards ministry essentially must take an overview of the regulatory system and provide a briefing to the regulatory standards Minister on how we’re doing every four years. My tabled amendment of 10.45.07 a.m. actually just makes a pretty simple suggestion, and that is that this be a three-yearly cycle. The reason for that is you’re out of kilter with the electoral cycle, and whilst I don’t think it probably is a briefing that you want to have to the incoming Minister, to have it every four years means every so often you’d be having it in an election year as well. Whilst we’ve got a four-year term bill before the House, which might mean we look at all kinds of cycles, the fact here is that this would create a degree of awkwardness, because it is a briefing to the Minister—it’s not just the long-term insights stuff, which is more something for the record.

So that’s my first point. The second is that my other tabled amendment from 10.45.08 a.m. suggests that the Minister should respond, because if this is about executive accountability, there is a really good argument to say the Minister should get the chief executive’s briefing, which no doubt will say, “We need to do better here, there, and over there, but we’re OK over there.”, and say, “I accept this but I don’t accept that.” My suggestion in the tabled amendment is that such a response should do things like provide a work plan in respect of addressing those shortcomings. So that’s in respect of clause 16, which hasn’t been talked about.

The other clause I’d like briefly to talk about is clause 17. One of the things about clause 17 is it’s actually not particularly clear, and so I think the title of the clause itself should probably be addressed, and it should be that “The responsible agency must regularly review legislation and report on progress.” This is one of the ones where it’s a soft obligation, and even though we’ll get to the clause that says that this part of the Act isn’t legally binding, it doesn’t give any time frames. In my experience, when there are no time frames for an obligation, Public Service agencies put it at the bottom of the jobs list. So one of my tabled amendments is that this should probably be—the tabled amendment filed at 10.45 and 11 a.m.—on a six-yearly cycle. Now, to be perfectly honest, I’m pretty agnostic as to what the cycle should be—six years is every two election cycles—but what it would be saying is “Look, you should do this. This isn’t just at some stage in the imaginary future. There’s actually an obligation to do it.” Then they should be reporting on it.

So my other tabled amendment at 11.01 a.m. adds a clause there which says, “The agency must provide a report stating the outcomes of the review and any actions or proposed actions as a result of the review.” At the moment, these are all kind of aspirational things, and, you know, when you’ve got a busy executive and department, then we see those things fall off the edge.

So I’ve whipped through the amendments—all new material—and I hope the Minister will respond to those.

Yes, I can very quickly respond to those. I mentioned earlier that the Government has no intention of adopting any of the 131 amendments that Dr Webb has tabled—apparently his latest at 11 past one in the morning.

However, to address these latest ones, amending clause 16 to have a three-yearly cycle of reporting in order not to interfere with an electoral cycle. Two things about that. We don’t actually have a three-year electoral cycle legally. We have a requirement to have an election within three years and three months of the last one, but sometimes in our history we’ve actually broken that cycle and we may well do again, or we may move to a four-year cycle, although that’s not currently the law. The reason it’s four years is precisely so that there is flexibility within the four-year cycle not to have the reporting or the briefing coincide with the election if that’s what the Government of the day wants. His amendment might actually defeat the very purpose that he is trying to achieve, so we certainly won’t be adopting that.

He then asked if the Minister should be compelled to respond to the briefing. That’s a very interesting constitutional idea, because it effectively means that an unelected person can force a Minister to publicly respond to their ideas, which is the opposite of how it should work in a democracy where the elected person has the choice about how they respond or not.

He then said that he’d like a six-yearly cycle for the reviews. That certainly would strengthen the bill and put a lot more impost on departments to review their stock of legislation. However, I note that the same member proposing this has been quite vocal in public about the costs of doing these reviews. I welcome that he now wants to strengthen the bill. However, the Government has come to a conclusion that by not setting a time frame, different departments, which might have different numbers of legislative responsibilities, can set their pace, of course, according to the expectations of the Government of the day rather than a hardwired annual amount, as I mentioned earlier. Previously, we had 10 years, now we don’t, so that’s actually a matter that I have already addressed.

I move, That debate on this question now close.

Thank you, Mr Chair. I have a short question, and as I indicated to the Chair before, I am moving on in Part 2—I’m now talking about Subpart 4, clause 23. This is around “a chief executive must act independently”. This is a really interesting clause, because it does say in subclause (2) “This section applies despite section 52 of the Public Service Act”. Section 52 of the Public Service Act specifically says the chief executive is responsible to a Minister, but subclause (1) says “must act independently (and is not responsible to a Minister)”, which I think is actually good to see in terms of the independence of a chief executive. But I want to check with the Minister on how the Minister envisaged this part to be enforced, because, again, this steps outside of some of the aspects.

It’s mainly about enforceability—how then, for example, as a House, if we do a consistency accountability report, are we under the assumption that the chief executive has acted independently, or is it more meaning that we need to dial a bit deeper to ensure that a chief executive was acting independently when releasing to the House.

Dr Duncan Webb.

Hon Dr Duncan Webb: Thank you, Mr Chair—

CHAIRPERSON (Greg O’Connor): Sorry, I didn’t realise—the honourable Minister for Regulation.

He’s resumed his seat, so I’ve been called. Thank you. The answer to Lawrence Xu-Nan’s question is just below the part that he read out. “A chief executive must act independently … in relation to—” two purposes: one is making a consistency accountability statement; the other is giving a briefing. Of course, you would assume that the Public Service Act prevails in all other purposes.

Thank you, Mr Chair. I want to talk about one of the most unusual parts of this legislation, and that is clause 24 in Subpart 5, and that is the provision in subclause (1) that says, “This Act does not confer a legal right or impose a legal obligation on any person that is enforceable in a court of law.” It is interesting that the debate over the past 30 or 40 minutes has all been on obligations on chief executives, obligations on departments, but they’re in fact not obligations because they’re all in this part and this does not impose a legal obligation. So it’s an obligation of some other nature, some sort of moral or administrative obligation but not a legal obligation.

Now, one of the things that came out of the select committee—and I think it was from the Legislation Design and Advisory Committee—was a concern that the courts would look to this legislation notwithstanding this section and see it akin to the New Zealand Bill of Rights Act and give it some force in some way, and there’s two ways the courts might do that. One would be as an interpretive principle to say, “Well, we’re assuming that the legislation we’re looking at has been designed with the intention of being consistent with these principles.” Now, that is a little problematic, and I’d just be interested in the Minister’s comments on that. Is that the intention? Because it’s a quite likely outcome. And, of course, under the New Zealand Bill of Rights Act, the New Zealand courts adopted an overseas practice of granting a remedy of a declaration to say the rights set out in the New Zealand Bill of Rights Act might not be enforceable in and of themselves as against legislation—so they can’t strike down legislation but they can say, “That legislation infringes on your rights in a way that’s in breach of the New Zealand Bill of Rights Act.”

There was a concern that a remedy of that nature might be developed, and, of course, you can never quite know how these things will go. That’s the thing about the common law—that it kind of develops organically and it’s not in some kind of linear fashion. I don’t think that’s what the Minister suggested, but my amendment of 11 minutes and 7 seconds a.m. inserts new subclause (1A) in clause 24 and simply says that “no declarations of inconsistency with this Act may be made by any court”, and that would simply clarify that status.

So that’s that bit. I’m also interested in the Minister’s observations as to what all of this stuff means. Is it really just a legislative Cabinet guideline? Because a Cabinet guideline is a classic example when it’s essentially a direction of the Prime Minister to his colleagues as to how they should behave, but if you don’t do it, it’s political only and it has no legal force. We talk about breach of Cabinet guidelines and Cabinet directions and so on. I think it’s really important: why have we got this section which says that none of this creates legal obligations and in fact the only legal obligations in the entire Act come later in the Act and are about the powers of our Regulatory Standards Board, which we’ll look at later. I’d be interested in the Minister’s comment.

I can answer the question again. There’s been a question about does this have any “legal right or impose a legal obligation”, and he’s right about that, but the second half of the sentence is “that is enforceable in a court of law.” Indeed, I forgot to address questions by Cameron Luxton earlier about sections 25 and 26. If you follow them through, they are all designed to ensure that the courts do not have their role in New Zealand expanded by this bill.

That turns me back to the amendments suggesting that declarations of inconsistency be outlawed. I don’t think that that is necessary, and I was thinking about something that Vanushi Walters said: that the New Zealand Bill of Rights Act was campaigned on through two elections. It finally became law in 1990, and it was another 25 years or so before the courts made declarations of the type that Dr Duncan Webb has referred to. It may well be that in 25 years’ time, these ideas will be socialised sufficiently to the point that courts might start making such declarations. If that leaves us with a country where the executive is more accountable to Parliament, makes more laws more carefully, and is aware of the importance of people’s liberties and property rights and doesn’t charge fees for things people don’t actually get, that would be no bad thing.

I move, That debate on this question now close.

Thank you, Mr Chair. I am moving on in terms of Part 1—

Francisco Hernandez: We’re on Part 2.

Dr LAWRENCE XU-NAN: Oh, sorry, Part 2, I meant—Part 2. Thank you. I’m moving on to Subpart 7, which is actually a very important part of this particular section on the Regulatory Standards Board. We haven’t quite covered the Regulatory Standards Board yet. I know that other people have questions, but I think I want to start by asking some questions around clause 29 in terms of the functions of the board. I think, in terms of the board, this is something that I think requires some attention and just some elucidation from the Minister on the independence of this board in order to provide information.

We know that, from a secondary legislation perspective, we have the Regulatory Standards Board, and the Minister for Regulation has already mentioned that, and that is something that is bipartisan. I think there is also another possibility, which was raised by my colleague Francisco Hernandez, when it comes to the Regulatory Standards Board. To start with, I think, a broader question: in order to maintain their independence, rather than reporting to the Minister for Regulation, has the Minister considered, for example, having that as an Office of Parliament, and having something like that being incorporated in the Parliament system, much like the Ombudsman and the Controller and Auditor-General? So, yes, I’m going to start with that very broad kind of question, and I will have some specific ones on Subpart 7.

Thank you, Mr Chair. I have a few questions on different clauses which I’ll go through quite quickly for clarification. Clause 19, inserting new section 17(1)(b), refers to secondary legislation, which could be “of a class specified in a notice issued under this section”. So this is just framing up which secondary legislation could be reviewed against the set of principles. I imagine that the Minister for Regulation’s referring to regulations that have been made before the bill passes, but are there other classes of legislation that the Minister is referring to? If so, I was just wanting those specified, but clearly that may not be the case.

Clause 20, which sets out the good lawmaking principles—they don’t seem to neatly mirror the clause that sets out good lawmaking principles. In particular, I was thinking about the need to review implementation and issues that had occurred with implementation. Again, it could be that the Minister believes the language encompasses that. I just noticed it wasn’t a direct mirror of the good lawmaking principles that the Minister had set out earlier in the legislation.

Then I had a question on clause 22, “Statements on review of secondary legislation”. This is where an agency who has reviewed the secondary legislation is directed to publish that review on an internet site and explain the maker’s reasonings for the inconsistency if there is an inconsistency, but also set out the proposed actions, if any, to remedy that inconsistency. Now, I go back to the Regulations Review Committee (Regs Review), because I sat on the committee and I tend to think through practically what is going to happen once this comes out. It feels to me that this would be a nice place for a trigger of interaction between the committee and the publishing agency, as it would be problematic if you had action that was being taken or proposed without Regs Review potentially having its view on consistency with other principles that sit outside the bill.

The Minister mentioned the Standing Orders earlier, and I’m just wondering whether it’s the Minister’s intention to take proposals to the Standing Orders Committee—of course, they’re sitting at the moment—in terms of ensuring there’s clarity about the interaction between this process and the role of Regs Review.

I move, That debate on this question now close.

CHAIRPERSON (Greg O’Connor): Fernando Hernandez.

Francisco Hernandez: Francisco Hernandez, Mr Speaker.

CHAIRPERSON (Greg O’Connor): Francisco Hernandez. Sorry, I’m catching it from the Minister.

Thank you. It’s all good. Thank you, Mr Chair. It’s catching. It’s contagious—it’s catching today. My question is based on clause 35 around the final report that the board must give. I’m just checking my understanding of the answer that the Minister for Regulation gave earlier when I asked whether—and we do know that the board has powers to make inquiries into secondary legislation. Earlier during the debate, I asked the Minister whether the secondary legislation included council bylaws, for example, and I believe that the Minister replied in the affirmative.

In the case of the final report relating to an inquiry on secondary legislation that’s been created by a local council, in the context of clause 35(1)(d), who’s the responsible Minister in the case of a local council bylaw, for example? That’s my first question that relates to the board and the final report.

My other question relates to the board itself, and I note that the details on where the board sits in terms of the Crown fee schedule isn’t in this legislation. So I’m just asking the Minister, in terms of the classification of the framework for Crown remuneration, whether the Minister anticipates that the Regulatory Standards Board sits in Group 1, that’s royal commission, public inquiries, Government inquiries, and Minister inquiries; Group 2, statutory tribunals and authorities; Group 3, governance boards, with Group 3a being general governance boards, including tertiary education institutions; Group 3b, subsidiary boards of statutory entities of Crown Agents, ACEs, ICEs; or Group 4 of all other committees and other boards. Under the kind of Crown governance fees framework, which group does the Regulatory Standards Board sit in at the moment?

So just to recap my questions, my question was around, if there was a local bylaw, which responsible Minister would receive the report under clause 35(1)(d)? My other question was, which group does the Regulatory Standards Board sit in, in terms of that Crown framework for remuneration?

I’m happy to address these questions. First of all, Lawrence Xu-Nan took us to Subpart 7, and his question was written down by me, but not very legibly, so apologies for that. It was about the Regulatory Standards Board. I might just go to Vanushi Walters’ question and come back to that.

She asked about clause 19: what is the class of secondary legislation reviewed under this law? Basically, new secondary legislation is in, old secondary legislation is out, and both of them can be changed by exception. The backward-looking reviews do not apply to old secondary legislation unless they are explicitly ruled in or they’re the product of secondary legislation that did have its own consistency accountability statement when it was first introduced.

She says that clause 20 doesn’t map to section 8 very well. I would contest that. It says that section 8 applies, but two sections are ruled out—consultation and implementation—because, if you’re reviewing something that is already done, then you can’t really review the consultation that was done at the beginning. The implementation has already been done, so you’re really reviewing the law as it stands today, not the process that it went through to be made. I think that actually does line up quite well.

Vanushi Walters also asked if I intended to take recommendations to the Regulations Review Committee so that the bill and the committee could interact. I’m open to doing that, but I think it would be presumptuous to do that before Parliament actually passes this legislation, but I have presented personally to the committee and said that I hope that, at some future time, they will actually interact, because I think there is a lot of scope for that. Then Francisco Hernandez—

Francisco Hernandez: Yay!

Hon DAVID SEYMOUR: —yes, thank you; I’m getting there. He asked a couple of questions about the Regulatory Standards Board—mainly, where it fits in the fees framework. That’s not actually something addressed in this legislation. Obviously, it’s something the Government will have to consider before it appoints the board, but it’s not something that’s legislated that’s up for debate here.

Then I think the question that, if I remember, Lawrence Xu-Nan, in his question about the Regulatory Standards Board, was asking was: what is the role of this board? As I’ve laid out previously, it is to, first of all, carry out inquiries, and, second of all, to review consistency accountability statements and the quality of those. There is a series of criteria around how those are made, but the point is that it’s an independent board of people who have expertise in law and regulatory economics that can consider the quality of consistency accountability statements and carry out other inquiries into regulatory quality from time to time.

I move, That debate on this question now close.

Dr Duncan Webb—but I warn that short, sharp, and specific is what is required.

Thank you, Mr Chair, because I wanted to talk about—

CHAIRPERSON (Greg O’Connor): And new.

Hon Dr DUNCAN WEBB: Yes, it is—Mr Chair, your tone!

CHAIRPERSON (Greg O’Connor): I want to leave you in no doubt, Dr Webb.

Hon Dr DUNCAN WEBB: Well, it’s about inquiries because we haven’t really talked about this function of the board. It’s interesting, because the Act talks about inquiries in clause 30, which is what I mainly want to talk about, but then it talks about a complaints system. So it’s really unusual to have a complaints-driven inquiries system. Complaints, generally, drive disputes. Inquiries are, generally, seeing a problem and going for it.

One of my concerns is that if we’ve got a complaints-driven inquiry system, then it’s going to be, kind of, infected with a dispute’s flavour. If we take, for example—and I know this is hotly contested, but it’s a really good example—the farrowing crates rules that have just been introduced; that’s an example where people will complain. The people who don’t like the new rules, you know, will say this is a bad piece of legislation, and it’s the result of bad regulatory stewardship.

Now, one of the questions is how people affected by it—and there’re only about 17 people here—are treated properly, as I understand it. That’s why my tabled amendment 11.35.04 a.m.—oh, no, sorry, it’s 11.35.05 a.m.—talks about ensuring natural justice, because if what’s going to happen here is that the landscape is going to be changed and the lobby group over there—let’s be honest; Greenpeace says, “This is a terrible piece of legislation.” Then pig farmers over there and the Pork Industry Board, I think, or the pork industry association needs to have a right to be engaged, and that’s called natural justice—that no one can be subject to a procedure which will affect their rights unless they’ve had a right to have their say.

That’s why, in my amendment, I suggest that in section 30 it states: “The board must comply with the principles of natural justice in any inquiry”, which is really just saying, make sure people affected will be able to be heard. Now, if it was not a complaints-driven process, where you’ve got Greenpeace complaining about the pork farmers, if it was simply the board going, “OK, we think this is an area that needs an investigation.”, natural justice would not apply in the same way, because it’s just an administrative action. But when you’ve got clause 32—actually, it’s a concern to me that you’re inviting people to, essentially, make attacks on other interest groups by saying this regulation isn’t fair or that regulation isn’t fair. I do think the natural justice point is a good one.

You know, of all the tabled amendments—and I know the Minister’s taken a view—this is one that warrants being supported, because it’s a simple procedural tool, and maybe other parties in the Chamber might want to think about it. The Minister’s not in charge here; this is a question for the committee, and I’d be interested in their support.

Thank you, Mr Chair. Following on, I did mention that I have a few more questions regarding Subpart 7; I’m going to keep them concise. When it comes to carry out inquiries, we’ve heard, from one perspective, they can be complaints or members of the public raising it. Can I just check with the Minister for Regulation for clarification: can then a Minister direct the board to carry out an inquiry? Understanding that, you know, there’s the insertion of clause 30A, which means that the board must act independently, but I want to check if that is a possibility. And when a board carries out inquiries, are they confined, then—because I think this is the section to discuss this—to clause 8, the principles of this bill, or are they also in clause 3, the purpose of this bill? So I want to check that when the board is carrying out an inquiry, it can be expanded.

I then want to ask the Minister—in terms of the function of the board, the board is going to be doing a substantial amount of work in terms of consistency accountability, reporting to the committee before reporting to the House; doing work that is very similar to, or has certain degrees of overlap with, what agencies and the Office of the Auditor-General, etc., are already providing. But I want to then check what then is going to be the cost that is going to be—has the Minister considered what is the cost or budget that’s going to be allocated to this board for it to be able to carry out all of these functions fully? So that’s question number two.

Question number three. I’m going to move on to clause 30, and that’s my last question for this part and for this contribution, which is around this idea of “on paper”, but then it says, “on the papers”. So I think the first question is: if the statement must be carried out on papers, do they mean that it has to be in writing; is that what we’re looking at here? Oh, yeah, I’m seeing a nod—great. So how then would it mean for people who potentially—because, you know, one of the core principles is everyone should be treated equal. How then would it be for people who have difficulties putting things down on paper and much prefer giving an oral presentation, etc.? Would that then also be acceptable, or are you looking at that person still needs to put it on paper, and there’ll be other resources available for them to be able to put that in writing? That’s question number three.

The final question—it’s very disconcerting when clause 30 says, “on the papers” with a definite article. I just want to check when they say “the papers”, does it mean Order Paper? Like, it must be a very defined paper we’re looking at here. So those are my four questions.

I move, That debate on this question now close.

Thank you, Mr Chair. I’d like to move on, if I may, to clause 35. Clause 35 and an associated clause, clause 36, relate to the reports of the Regulatory Standards Board. There’s actually a little bit of a mismatch in here, because it says in clause 35(1): “The board must give a copy of the final report on an enquiry to the following [people]”. In there, the complainant is included, which actually just shows this kind of disputation problem.

Now, I can understand why if you’ve made a complaint, you want to know. But then, in clause 36(1), the ministry must publish reports, and then it says they can redact information, in clause 36(2), right? I can understand that; I mean, commercial sensitivity would be the obvious one. But, equally, the report might say we spoke to this person who gave some important disclosures, and you want to protect their identity—all recognised reasons for disclosure. As soon as you give that report to the complainant, it’s in the public domain and there is no power to redact any information in that report going to the complainant.

So if we’ve got a report, to use my former example, about farrowing crates going to Greenpeace, the first thing that’s going to happen is it’s going to go up on their website in full, unredacted, right? There is no power to redact there and you can’t overlay that. As a bureaucrat, you can’t say, “Here’s the report, but it’s confidential.” So my amendment proposes that in clause 35 you insert a subclause (4), which basically is a mirror of clause 36(2), saying that you can redact on Official Information Act grounds the copy of the report that goes to the complainant so that you’re protecting the identities of people, you’re protecting commercially sensitive information, and so on and so forth. It’s actually a relatively important point and there’s no politics in this at all, right? But it is actually a really good point.

The next thing I wanted to talk about is the membership of the board, and we did talk about this quite a lot. That’s clause 37. We can talk about the number of members on the board, because between five and seven is quite low, because if you have five and a couple are sick, you get into all kinds of trouble. But the real thing I want to talk about is the qualifications of the members. Nowhere in the legislation does it talk about the kinds of people that should be appointed.

Now, if you look at legislative quality, I would have thought that it was a good idea to say that you want people who are qualified or have experience in making good legislation—the kind of people not in this House, obviously, and not the Minister for Regulation, but the kind of people who are on the Legislation Design and Advisory Committee would be a good example. I’ll be quite up front with the Minister. My concern is that what we’ll get is a bunch of economists, and whilst some economic expertise might be appropriate, what we wouldn’t want to see is a kind of law and economics approach taken to good regulatory stewardship. I’m not saying it’s not a useful tool, but it’s not a test. It’s not the sole test of what good regulatory stewardship is.

Now, whilst obviously there’s been a change here, and I agree that it’s a better change, that it’s not a direct appointment by the Minister, it’s by the Governor-General, but the question in terms of who is appointed—at the moment it’s clause 38(5), the Minister may only recommend the appointment of a person who, in the Minister’s opinion, has appropriate knowledge, skills, and expertise. I would have thought that it would be appropriate to take a more—the Human Rights Act says that the Chief Human Rights Commissioner must be legally qualified and must have these other attributes. Why have we not taken that approach here to say we need people who have expertise in legislative quality, expertise in the law, and a range of other expertise which we could then debate in this House? I’d be interested in the Minister’s comments on that.

First of all, in response to Duncan Webb’s questions about the nature of “require inquiries”—his amendment that would add natural justice to an inquiry—I’d direct him to clause 34(b), which says that they can actually use the principles but also evaluate who is likely to have benefited and consider whether legislation has produced benefits, all based on events that have occurred. I think that opens them to be able to hear from other people, but they needn’t necessarily be holding a kind of quasi court case. Their job is to report against the principles and see if the law is performing against those principles—not according to somebody’s opinion but according to the principles in law.

He also raised the question of whether the reports of the Regulatory Standards Board given to the complainant should be redacted in the same way as the ones that are public. That is an interesting point; however, I think sometimes we just have to trust that most people, most of the time, know what they’re doing and are sensible. If you are the Regulatory Standards Board and you expect that a person is going to leak or publish a report, as the Minister has suggested, then you needn’t include private information in that report. Sometimes we don’t need to legislate everything; we can just use common sense.

I’d reply in the same manner to his suggestion that we should legislate the qualifications of a person on the Regulatory Standards Board. I was pleased to see that he values the knowledge and expertise of economists. A lot of socialists prefer to shoot them, as David Lange once quipped, so that’s progress. However, I also say that the member is actually living proof that we should not take august qualifications as proof of competence. We would rather appoint people who are capable of doing the job as the legislation sets out than specify what those qualifications should be.

I move, That debate on this question now close.

The question is that the Minister’s amendment to Part 2 set out on Amendment Paper 427 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment replacing clause 8 be agreed to.

The question is that the Hon Marama Davidson’s tabled amendment replacing clause 8 be agreed to.

The question is that the Hon Marama Davidson’s tabled amendment to clause 8 inserting new paragraph (aa) to require an overriding principle of the health of the environment be agreed to.

The question is that the Hon Marama Davidson’s tabled amendment to clause 8 inserting new paragraph (aa) to require all legislation to be assessed for consistency with Treaty principles be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8, replacing paragraph (a), be agreed to.

The question is that Tamatha Paul’s tabled amendment to clause 8, amending paragraph (a), be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 8, replacing paragraphs (a) to (l), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8(a) inserting new subparagraph (vi) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8(a) inserting new subparagraph (vii) be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to clause 8(a) inserting new subparagraph (viii) is ruled out of order as being the same in substance as an existing provision of the bill.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8(a) inserting new subparagraph (ix) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (b) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8(b) replacing the words after “diminish” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 deleting paragraph (c) be agreed to.

Chlöe Swarbrick’s tabled amendment to clause 8 deleting paragraph (c) is ruled out of order as being the same in substance as a previous amendment.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (c) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8(c) replacing “property” with “justly acquired property” be agreed to.

The question is that Francisco Hernandez’s tabled amendment to clause 8 inserting new paragraph (cb) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 deleting paragraph (d) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (d) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 inserting new paragraph (da) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 inserting new paragraph (db) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (e) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 amending paragraph (e) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8(f) inserting new subparagraph (iii) be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to clause 8(f) inserting new subparagraph (iv) 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 8 deleting paragraph (g) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (g) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (g) and inserting new subparagraphs (i) to (iv) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 deleting paragraph (h) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (h) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 amending paragraph (i) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 inserting new paragraph (ia) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8(j) replacing subparagraph (i) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8(j) replacing subparagraph (iv) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 deleting paragraph (ja) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (ja) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (k) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 replacing paragraph (k) and inserting new subparagraphs (i) to (iv) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 amending paragraph (k) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 inserting new paragraph (m) be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 8 inserting new paragraph (m) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 8 inserting new paragraph (n) be agreed to.

The question is that Chlöe Swarbrick’s tabled amendment replacing clause 8A be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled inserting new clause 8B be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment inserting new clause 8C be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment inserting new clause 8D be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 9 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 9, inserting new paragraph (c) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 13(1) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment deleting clause 15 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 15(2), replacing paragraph (b) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 15, deleting subclause (3) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment replacing clause 16 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 16, inserting new subclause (4) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment replacing the title of clause 17 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 17 inserting new paragraph (aa) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 17 inserting new paragraph (c) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 17 inserting new paragraph (d) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 19(1), deleting paragraph (a), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 19, inserting new subclause (6), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 20, replacing paragraph (a), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 20(b), amending subparagraph (iii), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to the title of clause 23 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 23, amending subclause (1), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 24 inserting new subclause (1A) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 24 inserting new subclause (1B) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment deleting clause 26 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 27, amending subclause (1), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 27(1), deleting paragraph (c), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 28 be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to clause 29(1) inserting new paragraph (aa) is ruled out of order as being merely an attempt to criticise the bill.

The Hon Dr Duncan Webb’s tabled amendment to clause 29(1) inserting new paragraph (ab) 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 29(1), deleting paragraphs (a) and (b) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 29(1) deleting paragraph (c) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment replacing clause 30 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment deleting clause 31 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 32 replacing “complaints” with “suggestions” be agreed to.

The question is that Francisco Hernandez’s amendment to Part 2 set out on Amendment Paper 429 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 32 inserting new subclause (2) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment inserting new clause 32A be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to clause 33(1), replacing “secondary legislation” with “legislation”, 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 33 amending subclause (2), be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 33 inserting new subclause (3) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment inserting new clause 33A be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 34 amending paragraph (a) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 35(1) inserting new paragraph (e) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 35 inserting new subclause (3) be agreed to.

The question is that Francisco Hernandez’s tabled amendment to clause 35, inserting new subclause (3) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 35, inserting new subclause (4) be agreed to.

The Hon Dr Duncan Webb’s tabled amendment inserting new clause 36A 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 replacing clause 37 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 37, inserting new subclause (1) be agreed to.

The question is that Francisco Hernandez’s tabled amendment to clause 37, inserting new subclause (1) be agreed to.

The question is that Francisco Hernandez’s amendment to Part 2, set out on Amendment Paper 430 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 38, inserting new subclause (6) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 39(1), inserting new paragraph (c) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 39(1) inserting new paragraph (d) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 39 inserting new subclause (4) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment inserting new clause 39A be agreed to.

Members, the time has come for me to report progress.

House resumed.