In brief:
- Opposition to the Regulatory Standards Bill is driven more by identity politics than legal flaws.
- The bill is neutral and non-binding. It asks that regulations show benefits outweigh costs, but Parliament can ignore this.
- Treaty settlement Acts are explicitly excluded. Existing obligations remain untouched.
- Critics misread the bill’s emphasis on individual rights. It still allows laws to prevent harm to others.
- The real clash is between equal rights for all vs group-based legal privileges.
In early July, I made arguments along the following lines in support of the Regulatory Standards Bill to a Parliamentary Select Committee. It was clear that I belonged to a small minority.
In listening to the other submitters, I discerned three themes; none of which I found particularly convincing.
The bill is designed to engage in greater de-regulation
Geoffrey Palmer made this point passionately in his submission. According to him, the bill is based on the premise that the New Zealand economy is highly regulated and the bill seeks to de-regulate the economy. While Palmer’s conjecture may be correct, there is no such language in the bill. The bill may lead to more or less regulation. The bill simply suggests that any such regulation must demonstrate that the benefits outweigh the costs. In any case, the bill is non-binding and Parliament is not precluded from passing regulation that fails this test.
The Bill does not engage with the Treaty of Waitangi
The bill specifically spells out why it does not do so. The Bill only provides guidelines for future legislation and does not address the Treaty or Treaty settlements. In fact, the bill makes clear that it does not affect secondary legislation made “under certain excluded Acts. An excluded Act is a Treaty Settlement Act…” and as such the bill does not seek to nullify “any other Act that provides redress for Treaty of Waitangi claims.”
Private versus public harm
Some people say the bill focuses too much on individual rights. They believe this could make it harder for the government to create regulations that protect the public, such as laws safeguarding the environment.
They point to a section in the bill that states a person’s rights can only be limited to protect “another person.” Critics argue this means the government cannot pass laws that benefit society as a whole if they impact an individual’s freedom. However, this is not entirely accurate. This theme encapsulates the thinking of philosopher John Stuart Mill, who argued that people should only be prevented from doing something if it harms someone else.
Even Mill supported laws such as inheritance taxes and women’s rights, demonstrating that individual rights can still coexist with actions that serve the public good. In economics, we learn the same principle: when one person’s actions harm others, known as negative externalities, the government should intervene with regulations to prevent the harm.
This concept is already reflected in law. Legal scholar Richard Epstein noted that a fundamental rule in tort law is that you may use your property freely, but not in a manner that causes harm to others.
If the phrase “another person” confuses, it could easily be replaced with terms like “others” or “the public.” Such a change would be simple. There is no need to discard the entire bill because of this.
Objections to the Regulatory Standards Bill are a red herring
Ultimately the objections have little to do with the legality of the bill or lack thereof. This is a philosophical debate between two groups. On one side are the bill’s proponents who are effectively arguing in favour of equal rights for all without veto power by vested interests.
Arrayed against the bill are a group of people who are essentially illiberal in their mindset and primarily interested in identity politics. They are fundamentally uncomfortable with the principle that the law should apply equally and in the same way to all citizens; and prefer a system that works for particular interest groups, no matter how inequitable those outcomes are to out-group members.
As Epstein argues: “During the nineteenth century, the harm principle served as a bulwark of liberty and a limitation on the scope of government power. By degrees, however, it has been transformed …into an engine of social control that is said to justify major government intervention in all its manifestations. The principle that was once a shield of individual liberty has been forged into a sword against it.”
Ananish Chaudhuri is Professor of Experimental Economics at the University of Auckland and author, most recently, of “Economics: A Global Introduction“.
