By Melanie Nelson

Copyright thespinoff

Pressure from coalition partners may see NZ First abandon its stance on the Regulatory Standards Bill, raising questions about principle versus survival.

At the recent New Zealand First Convention, Shane Jones criticised “David Seymour’s regulatory bill”, but implied that NZ First will enable it to pass.

Despite his attempt to shift responsibility onto Act, the bill was drafted by the coalition government after cabinet policy approvals, introduced as a government bill, and all coalition partners needed to agree to its content.

An about-turn by NZ First?

The soft announcement was left to Jones, who quoted Winston Peters quoting Shakespeare: “It’s like Shakespeare said, to do a great right, sometimes you have to do a little wrong.”

If the “great right” is NZ First’s hope of proving itself indispensable to a future National-Act coalition, the “little wrong” is no small matter: enabling the second-most opposed bill in New Zealand’s history, in direct conflict with the party’s own founding values, and doing so when it is well within NZ First’s power to stop it.

Jones dressed this up as pragmatism, saying the caucus has a grown-up attitude about fidelity, stability, “and ensuring that society and our voters next time round can see that we’re not a three-year wonder”.

But this jars with his earlier claim that the coalition agreement to pass a “Regulatory Standards Act” was subject to two caveats around good governance [good law-making], economic efficiency, and needing to ensure – following the select committee process – that the final shape and form of the bill is not detrimental to those.

Substantial expert evidence put before the select committee argued that the bill meets neither of those caveats. The committee received around 157,000 written submissions, the second highest number on record – with a reported 99% opposed. Only 19 out of 208 oral submissions supported the bill. A resounding no – but has NZ First listened and acted on what they heard?

Jones explained to RNZ that at the time of coalition negotiations, the RSB was intended to be subject to a referendum, saying, “We could have argued incessantly … on the question of what bill did we think we were agreeing to?”

Meanwhile, Newsroom reported that although Act has made some concessions – understood to not alter the overall fabric of the bill – NZ First and National had not secured all the changes they sought.

A curse for NZ First?

Whether the RSB’s core principles have been changed remains unclear. As drafted, they would entrench Act Party values as the benchmark against which all government legislation is measured.

Although parliament would remain free to legislate outside these principles, the bill creates multiple layers of soft power that would pressure governments to increasingly conform to them.

Jones made no secret of his distaste for the RSB, warning, “It has the capacity to be meddled with by the judiciary and turned into something in the future that will be akin to a curse.”

That remark may prove prophetic – but not in the way he meant. The RSB is likely to become a curse for NZ First, not in some distant courtroom battle, but as early as next year, when David Seymour and the Regulatory Standards Board begin wielding the powers it would grant them.

The bill hands Act the stage, spotlight and script, empowering it to formally judge policy against its own values and mount taxpayer-funded critiques that undercut coalition ministers and other parties’ policies. If National and NZ First have a different vision, it seems odd to let Act set the regulatory standard – leaving others constantly defending their divergence.

From anti-neoliberal roots to neoliberal complicity?

New Zealand First was founded on a platform opposing the neoliberal reforms of the 1980s and early 1990s. Peters’ public address at the party’s recent convention began with a clip from its launch, declaring, “Ladies and gentlemen, we are going to take our country and our democracy back.”

The RSB began as a project of the Business Roundtable – a key advocate of neoliberal reforms – and recent OIA releases reveal the current version was influenced by a senior fellow of its successor organisation, the New Zealand Initiative, including lobbying informed by overseas libertarian ideals.

The documents show that Bryce Wilkinson – the author of the original bill for the Business Roundtable in 2001 – lobbied the Ministry for Regulation extensively with the work of Richard A Epstein, a fringe American legal scholar and libertarian thinker associated with multiple right-wing think-tanks.

The Business Roundtable had previously acknowledged that the bill was grounded in Epstein’s doctrine of “regulatory takings”. If the RSB is passed in its current form, we would be the first country in the world to embed this radical doctrine into domestic law.

Despite its strong property rights, New Zealand was seen by Epstein as lacking formal constitutional protections for property and placing all legal power in the hands of the sovereign, thus providing an opportunity to implement his theory without navigating constitutional hurdles.

Epstein himself has admitted that his doctrine would invalidate much of the legislation enacted over the past two centuries. If implemented as he proposes, it could invert the role of government – turning efforts to regulate in the public interest into liabilities for the state, and rent-seeking opportunities for investors.

It remains to be seen whether NZ First has become complicit in the next phase of New Zealand’s neoliberal experiment – a step that could compromise both our country and democracy, which they purport to be taking back.

Experts warn that embedding regulatory takings in the RSB would strengthen overseas investors’ leverage in investor-state disputes and tilt law-making away from the public interest.

The interpretation and application of the bill’s undefined principles is key – issued exclusively by the minister for regulation and the attorney general, whose decisions may be incontestable in the courts.

The OIA documents show Wilkinson helping refine the RSB’s detail. He emphasised the importance of the interpretative guidance, and his and Epstein’s ideas will likely shape its content once issued.

Shooting itself in the foot?

And, most ironically for NZ First, the RSB could compromise its own aspirations. From January 2026, when it comes into force, policies NZ First put forward would be filtered through Act’s values, under a framework it helped legislate.

Jones recently announced a policy to renationalise power companies. As corporations are considered legal persons in New Zealand law, that is likely to be inconsistent with several of the RSB’s “principles of responsible regulation”, including those about individual liberties and the taking of property.

Although the government could still decide to nationalise, it would need to publicly defend passing “irresponsible” regulation, consider giving compensation to the companies for impacts on their property and future earnings, and face criticism by the board.

Other NZ First policies, such as opposing the release of GMOs into the environment, prioritising New Zealanders in decision-making, the migrant values statement, strengthening glyphosate regulation, and pensioner support, are all likely to be in the firing line for being inconsistent with one or more of the RSB’s principles.

In the name of stability, NZ First may have handed David Seymour the tools to destabilise the future of the party, and according to some experts, the future of the nation.

The select committee’s report may be released as soon as September 23, and is likely to signal whatever compromises have been reached by the coalition parties.