Huo Raymond: Regulatory Standards Bill — First Reading 
Huo Raymond: Regulatory Standards Bill — First Reading 
[Volume:673;Page:19769] 
RAYMOND HUO (Labour) 
: 
 I would like to start my contribution to the first reading of the Regulatory Standards Bill by quoting some thoughtful comments made by leading legal experts and relevant stakeholders. Law commissioner and former chief statutory draftsman George Tanner QC says that the bill would fail to meet the test of responsible regulatory management even based on the bill’s own principles. Auckland University’s Dean of Law Professor Paul Rishworth says that it could clog up the courts and draw officials into legal battles.  
New Zealand Herald  
commentator Brian Fallow says that the principles are abstract constitutionally unorthodox and substantively unsound. Even Treasury’s evaluation of the bill does not support it. According to Treasury there is no clear advantage over other available methods in using legislation to promote regulatory quality other than legislation being necessary to provide for the new role of courts. Further Treasury rates the potential to induce change in behaviour as low the risk of unintended outcomes as high and the potential to reduce costs as very limited. No wonder Alex Penk policy and research manager at the Maxim Institute described the bill as a wolf in sheep’s clothing. 
Labour opposes this bill. I have five main reasons for opposing this bill. The first one is that this bill changes the role of Parliament and the courts and requires certification by Ministers and chief executives. This means that the chief executives in effect certify whether they would enact a particular law. The certification regime therefore virtually puts chief executives in the position to politicise themselves and arms them to veto Government policy in a way that is inconsistent with our constitutional arrangements. Secondly the bill would be applied to new laws but after existing for 10 years it can apply to existing regulation as well. This could empower the courts to reinterpret provisions in other laws to make them consistent with the principles prescribed in this bill thus changing the original intention of Parliament when the law was enacted. Thirdly many of the principles are redundant as they are provided for in other legislation—for instance the imposition of taxes except by or under an Act which is already the case. Therefore the principles contained in this bill are ideological vague and create legal uncertainty. Fourthly this bill will create not only legal uncertainty but extra compliance costs for public entities which will now face more onerous annual reporting requirements. Finally this bill aims to fix an exaggerated problem. The regulatory impact statement states that although New Zealand lacks its own indicators of legislative quality the best international surveys available suggest that New Zealand does not have fundamental problems with legislative quality when compared with other OECD countries. 
Looking at the content the bill has three key components—firstly certification; secondly judicial declarations of incompatibility; and thirdly interpretation to ensure legislation conforms to those principles. The bill establishes a so-called benchmark for good regulation through a set of seven regulatory principles. All regulations including primary secondary and tertiary legislation excluding instruments made by local government should comply with these principles. The bill aims to provide transparency by requiring decision makers to certify whether the regulation they are proposing is compatible with the principles. Finally the bill provides a check on the certification process by allowing the courts to provide declarations of incompatibility where they believe the principles have been breached. However this power is declaratory only with no direct ability to overturn or amend the offending legislation which luckily is consistent with the separation of powers doctrine. 
I have three further concerns. The first one is that the Regulatory Responsibility Taskforce failed to justify why this bill is even necessary. There is very little evidence to show why a vigorous or intensive approach is required as opposed to the other options suggested by the Commerce Committee. Based on the calls from both National and ACT MPs there is no convincing argument as to why legislation is required to ensure better legislation. The second concern is that the bill uses open-textured language that will lead to uncertainty of meaning. According to George Tanner QC it attempts to define good lawmaking by reference to a set of simple principles and in doing so it obscures the complexities inherent in them and creates the same lack of clarity and uncertainty that it seeks to prevent. My third concern is with regard to the role of the judiciary. Sir Geoffrey Palmer pointed out in a recent article that neither judges nor the legal profession are proficient in policy analysis of the type that leads to regulatory legislative proposals. In this respect the bill actually confers on the judiciary a new role for which they are not equipped. Our already overburdened court system should not be further encumbered with overseeing regulatory legislation. 
I had the pleasure of reading a well-researched article offered by a senior lecturer at the faculty of law of Auckland University. Richard Ekins argued that this bill is unconstitutional and authorises courts to review the detail of policy illegitimately constraining Parliament and calling into question the validity of much secondary legislation. Of particular interest is clause 7(1)(b) which states that legislation should “not 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:”. A substantial number of legislative Acts do actually diminish a person’s liberty or freedom of choice. Mr Ekins cited an Act entitled the Bakeshop Act 1896 (NY) which prohibits any person from employing another to work in a bakery for more than 10 hours per day or 60 hours per week. That Act would depart from clause 7(1)(b) of this bill for it restricts the freedom of contract of employer and employee and is not necessary to protect any existing liberty or freedom of the employee or any other person. The legislators might attempt to justify the Act by reference to the health of the worker or the need to protect him or her from economic exploitation. It would be open to the courts to consider this rationale and to decide that the legislation is an unjustifiable limit on liberty. The article went on to say: “The bill also states in paragraph (c) that legislation should ‘not take or impair … property’ unless this is necessary in the public interest; and full compensation is paid such compensation to be paid if practicable by those who benefit from the taking.” Mr Ekins argues that the principle conflates “takings” and “impairment”: “The fact is that limiting how one uses property attracts full compensation. The point of the principle is to make it very expensive to limit how property owners may act for any property owner who suffers loss from regulatory change is entitled to be made whole. Thus if Parliament wishes to ban dangerous weapons it must buy them.”