The Regulatory Standards Act fails its first real test

Comment: What a shambles, or should I say comedy of errors. This week, in its final session before the general election, Parliament sat under urgency to enact amendments to local government legislation to address gaps exposed by the Fast-track Approvals Act, which had been supposed to be one of the Government’s flagship achievements this term.

The changes are to assuage councils in both the North and South islands who have been alarmed by developers unveiling ambitious housing projects without the requisite infrastructure such as wastewater treatment, potentially becoming a liability for ratepayers.

Only last month the Government was forced to apologise to pensioners whose winter energy payments had been delayed due to changes to a potential drafting error in the Social Security (Mandatory Reviews) Amendment Act which had been rushed through under urgency. The amendment had not anticipated systemic difficulties in the way officials implemented the new policy.

That raises an obvious question: had the much-vaunted Regulatory Standards Act (RSA) 2025 been applied, would it have prevented either of these problems?

The RSA was established to improve the quality of legislation by creating principles of “responsible regulation”, requiring governments to assess proposed laws against those principles.

It was enacted before the fast-track legislation had been, while the social security amendment had been rushed through under urgency; but if the RSA had been applied would it have made a difference?

The purposes of the RSA include ensuring the executive’s accountability to Parliament for the quality of legislation, and the executive’s stewardship over regulatory systems. However, section 15 of the RSA places the latter duty on chief executives, rather than on portfolio ministers, potentially diluting constitutional principles such as ministerial accountability.

Ministers are supposed to be accountable for outcomes, not the public service. Which is not what we saw when the Government initially sought to blame the winter energy blunder on officials.

It’s unlikely the RSA would have prevented the fast-track legislation’s deficiencies either. The principles of responsible regulation it enshrines prioritise the interests of property owners and developers over the rights of citizens to adequately funded services.

For example, the principles include factoring in the “taking, or severe impairment of property”. They also require consultation with affected stakeholders (passing legislation under urgency means there is no time for select committee submissions by affected parties) and consideration of who is likely to benefit and who is likely to suffer detriment from proposed measures.

These principals may have enabled push-back over the potential impact on ratepayers for unsanctioned developments requiring the provision of new services and infrastructure. However, the Act’s injunction to refrain from unnecessary levies and fees drives in the opposite direction. There is nothing in the principles requiring consideration of the principles of the Treaty of Waitangi or te ao Māori values either.

It is instructive to consider what a more inclusive Regulatory Standards Act, one not solely neoliberal in its orientation, would have looked like. Our English common law has absorbed diverse influences over a thousand years of evolution, enabling it to adapt to changing needs. The Supreme Court, in Ellis v the King, stated these now include tikanga, not only when cases relate to Māori but, potentially, in any case enriching Aotearoa’s distinctive common law system of precedent.

Would recourse to tikanga notions have averted recent botch-ups? The notion of manaakitanga spans rigid common law distinctions such as a duty of care not to harm and fiduciary duties of protection towards vulnerable parties: it suggests a duty of care and responsibility towards those whose may be affected by one’s actions.

Another fundamental principle, that of whanaungatanga, or respectful relationships, would require engagement with stakeholders such as councils and ratepayers.

Sir Geoffrey Palmer once said we have the “fastest law in the West”. Recent events have proven this is still the case and measures supposed to mitigate against its dangers are proving to be mere ideological virtue-signalling.