The background to “passing a Regulatory Standards Act as soon as is practicable”

Dr Bryce Wilkinson
Insights Newsletter
1 December, 2023

The Coalition Agreement between National and ACT includes a commitment to pass the “Regulatory Standards Act as soon as practicable”.   

How fast is that? What is it, what does it do, and what might its passing mean? 

It could be at the front end of the legislative pipeline. A well-developed Bill exists. The House debated it on 4 August 2021. National and ACT voted for it to proceed to a first reading, but Labour used its majority to scotch it. 

The Bill is the product of a 2009 government-appointed Regulatory Responsibility Taskforce chaired by former Secretary to the Treasury, Dr Graham Scott. I was a member of that taskforce.  

The taskforce was greatly assisted, pro bono, by one of New Zealand’s top law firms Chapman Tripp. Staff from the Parliamentary Counsel Office helped draft the Bill.  

Its report explains each of the Bill’s provisions. There is a copy on The Treasury’s website. 

The Bill aims to make it harder for government to pass bad laws.  

First, it enumerates accepted mainstream principles for a legal system and for regulatory assessment. These include the rule of law, protection of basic personal liberties, security of possession, principled taxation, independent courts and impartial tests of good law-making, including a meaningful assessment of likely benefits and costs. 

Second, it requires a minister sponsoring a specific measure to certify that it complies with those principles and, if not, to explain any exceptions. 

So what? The Bill allows any citizen to contest the minister’s certification in a court. It gives the court the power to declare that a measure is incompatible with any of the principles.  UK courts have such a power under the UK Human Rights Act. 

The 2009 Bill is weak beyond this point. Even if the citizen wins, nothing is changed. The measure retains its legal force unless Parliament changes its mind. It is under no obligation to do so. 

As such the Bill is a transparency measure. It merely makes it harder for the government of the day to impose poor-quality laws and regulations. 

Some of those making submissions on the Bill will want to amend it to give a successful plaintiff a tangible remedy. Options exist. 

Others will oppose even this modest transparency measure. Some may argue existing checks on legislative quality are adequate. That criticism is unworldly. 

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