The Regulatory Standards Bill and how not to govern a country

Wednesday, 16 July 2025

Government MPs in Parliament. What would their role be if the Regulatory Standards Bill becomes law, wonders Jonathan Boston.

Jonathan Boston is emeritus professor of public policy at Victoria University of Wellington.

OPINION: Why have governments? What is their proper purpose? And what constitute good laws and responsible regulations? Such questions have been much debated in recent months, prompted by the Regulatory Standards Bill.

To answer such questions, let’s consider a few relevant policy issues and let’s assume the Government’s bill has been enacted.

Imagine you are a policy advisor in the Ministry of Health. Your minister has asked you to review the Pae Ora (Healthy Futures) Act 2022. The aim is to ensure that the act is consistent with the principles of responsible regulation contained in the Regulatory Standards Act. Currently, a key purpose of the Pae Ora (Healthy Futures) Act is to “protect, promote, and improve the health of all New Zealanders”.

In advising the Minister of Health, you note that while the goal of protecting citizens’ health has been endorsed by governments in New Zealand and elsewhere for generations, it is inconsistent with the principles in the Regulatory Standards Act. This is because the act’s principles lack any reference to such a goal. Nor does the act explicitly endorse social rights, such as a right to access health care services. Indeed, you advise your minister that many, if not most, of the provisions in the Pae Ora (Healthy Futures) Act are probably inconsistent with the Regulatory Standards Act.

Could making children attend school be at odds with the Regulatory Standards Act?

Next, suppose you are a lawyer in the Ministry of Transport. Your minister has asked you whether there are any provisions in the Land Transport (Road User) Rule 2004 that are inconsistent with the principles in the Regulatory Standards Act. In response, you note that a key provision in this rule is for drivers to keep to the left: “A driver, when driving, must at all times drive as near as practicable to the left side of the roadway unless this rule otherwise provides.”

Unfortunately, this rule is probably inconsistent with the Regulatory Standards Act. For instance, it contains no principle to protect public safety or pursue the common good. Moreover, the act’s liberties principle severely constrains the justifiable grounds for state intervention. Hence, if the act’s provisions had legal force and were applied rigorously, road users would likely be free to drive on whichever side of the road they choose and at whatever speed. You advise the Minister of Transport that this might be unwise.

Now, instead, you are the Director-General of Education. Your minister asks whether compulsory education is consistent with the Regulatory Standards Act. You advise your minister that, while the Education and Training Act 2020 requires children aged between 6 and 16 years to be enrolled in a registered school, making children attend school is inconsistent with the Regulatory Standards Act. This is because it contains no paternalistic principle; that is, a requirement for people to do things for their own good. Similarly, there is no welfare principle; that is, a requirement for people to help benefit others.

Over time, all ministers are informed by their departmental advisers that most of the laws and regulations they are responsible for administering are inconsistent in one way or another with the principles in the Regulatory Standards Act.

Many ministers are perplexed by the extent of these inconsistencies. They ask lots of questions. Why have multiple parliaments enacted so many laws that are inconsistent with an act that provides a world-leading benchmark of responsible regulation? Moreover, why have governments not realised the error of their ways much sooner – and not just in one or two areas of public policy, but almost everywhere and all the time? What has motivated previous governments to make so many woeful decisions?

Road safety rules maintain that we drive on the left-hand side of the road, but would that be consistent with a Regulatory Standards Act?

Perhaps they have been poorly advised? Or perhaps citizens have voted for such governments? But why would citizens continuously vote for all the wrong things? Why, for instance, would they want to protect public health, ensure road safety or safeguard the environment, let alone support compulsory education? Could they have been duped by an insidious ideology?

The Government is flummoxed. The Cabinet meets urgently to review the policy options. The Ministry for Regulation is asked for advice. Although the provision of free and frank advice to ministers is not among the principles in the Regulatory Standards Act, ministry officials bravely offer their best advice.

They inform ministers that the government has a problem. But the problem is not primarily with all the country’s existing laws and regulations. Rather, the problem concerns the principles in the Regulatory Standards Act. They are extremely narrow, limited, and in some cases flawed. There is, for instance, no principle requiring governments to minimise public harm or enhance public welfare. Nor are the precautionary principle or protecting the environment mentioned.

Officials conclude that citizens have not been duped by an insidious ideology. Nor have governments consistently erred for generations. The solution, therefore, is simple: the Regulatory Standards Act is the problem; it should be amended or repealed.

The Prime Minister and most ministerial colleagues are baffled. How could the Government have supported such flawed legislation? Could they possibly have been duped? Surely not.