January 2025
THE PROPOSED REGULATORY STANDARDS BILL
Most New Zealanders with an interest in political matters, and quite a few who would not normally take much interest, are currently, and quite rightly, deeply disturbed, not to say alarmed, by an attempt being made to alter the principles evolved over the past four decades governing the application of Te Tiriti o Waitangi. This is because the clear intent of this would be to nullify the application of the Treaty itself. This alarm is laudable and has been widely supported. But it has also tended to distract attention from another proposed piece of legislation which has, as a result, come in under the radar. This proposal, included in the government coalition agreement at the initiative of ACT, is the rather anodyne sounding Regulatory Standards Bill. It is, however, far from anodyne and would, if anything, be even more pernicious in its effects than the proposed Treaty principles legislation because of the massive changes it would bring in our democracy.
Although the reasons given for this proposed enactment are that we need to ensure that the legislation we pass into law is rational and practical, and that it is sensible of the rights and liberties of citizens, no coherent reason has been advanced why this is required to replace existing arrangements to the same ends other than those of a purely ideological character. The ideology in question is not only foreign to our political culture but has been demonstrated over a number of elections to be unacceptable in its consequences to the great majority of New Zealand citizens. In my view this Bill should not proceed under any circumstances. I am not alone in this view which is held by a number of constitutional experts for a range of reasons.
A potential constitutional revolution
In the first place the meaning proposed for “liberty” within the Bill is not the generally accepted definition of that concept which in our present political culture is both individual and collective and has developed as a framework in public affairs over some centuries. This concept is enshrined in two basic principles viz., the sovereignty of parliament and the independence and supremacy of the courts. Both of these principles would be overturned by this proposed legislation and replaced by severe limitations on the enactments which parliament can pass, which would be strictly confined to those which touch upon the security, property rights and personal liberty of individual citizens. Powers of taxation under the proposed regime would be confined to measures which could be shown to entail real benefits to those called upon to pay the taxes in question. This is not the current purpose of taxation, which is to benefit the common good.
This would furthermore be paralleled by the establishment of a board of review of legislation outside the compass of the ordinary courts and appointed by a Minister i.e. by direct political intrusion into a central court activity at a constitutional level. Its purpose would be ensure that the proposed limitations on the powers of parliament to pass legislation had not been infringed. This board would be outside current statutory review powers of the ordinary court system, would potentially supersede it, and would be empowered to consider any legislation passed over the previous ten years and, presumably, to recommend reform or amendment of any which did not conform to the proposed criteria limiting the powers of parliament. It would also be able to make its recommendations “on the papers” which is a euphemistic way of saying “without a public hearing” thereby infringing the central principle of transparency in government and law.
The effect on the ways in which we presently carry out our public affairs of these things would be, to say the least, revolutionary, and would I believe be completely unacceptable to most New Zealanders.
An obsolete concept
The ideology driving this proposal is not a new one but goes back several centuries. If we are to debate it then it is important for both our citizens and our legislators (some of the latter of whom may not be familiar with those origins) to understand them and why they have been ultimately rejected as a guiding ideology in our political culture.
As a set of notions they are associated with three European political thinkers i.e. Hugo Grotius (1583 – 1645); Thomas Hobbes (1588 – 1679); and, particularly, John Locke (1632 – 1704). Briefly stated, the first, a citizen of the Netherlands formulated the principle that the state should be governed by law including in its external relations, and the second that the state, which he called Leviathan, needed to be all powerful and able to over-ride the rights of citizens, including their property rights. It should be noted that both of these thinkers lived in periods of upheaval and social and political conflict, in the case of Grotius the eighty years of war between the Netherlands and Spain, and the Thirty Years War affecting most of northern Europe, and in the case of Hobbes the English Civil War. These conflicts were characterized by widespread and brutal bloodshed in which literally hundreds of thousand s of people, most of them civilians, lost their lives often in horrifying circumstances. It is understandable in such circumstances that both these thinkers placed emphasis on law and order administered by a powerful and non-accountable state as the paramount and absolute driving force in public affairs.
Hobbes in particular had proposed that before civil society was invented humanity lived in a state of war of all against all. He called it a state of nature and notoriously characterized the life of human beings within it as “poor, brutish and short”. People therefore, he suggested, had at some distant point in the past entered into a social contract to put a stop to this by way of mutual protection and empowered the state with an over-riding authority to ensure that order and peace were preserved.
Perhaps because he lived in a more settled era, Locke begged to differ. Although he accepted the notion of an original state of nature and its ending in a social contract, he suggested that this preceded the creation of sovereign states and these latter only came into existence when it became clear that some sort of referee was needed to protect individual property rights against encroachment. But that, said Locke in his best known work, the Two Treatises of Government was where the powers of the state began and ended. Even in dire circumstances the state was there to protect individual rights to property and that was the paramount duty of the state. It is a point of view generally known to scholars as the political theory of possessive individualism.
Its importance derives from it being one of the major guiding principles driving thinking on European public affairs for the following three centuries and has found exponents in every generation. It enjoyed a significant influence in the later eighteenth century on the thinkers of what is known as the Scottish Enlightenment, and in particular Adam Smith in their attempts to solve the political problem of the privy purse and the King’s friends, by insisting that most regulation of political activity through sinecures was not needed and could be safely left to the market.
In the nineteenth century it had a similar influence from the writing of the Mills, father and son who produced the classic statement of libertarian liberalism, and the Frenchman, Alexis de Tocqueville (1805 – 1859) as one of the bases of his critique of democracy.
In the twentieth century its principal disciple has been Friedrich von Hayek (1899 – 1992) an Austrian of Czech descent who spent much of his life in Britain and the United States as an academic economic theorist. His best known work is The Road to Serfdom which characterizes both fascism and socialism as of a piece and both as an absolute anathema because they invade the sanctity of property by collective interest for illegitimate reasons of state. It is also a classic statement in essence of Locke’s theories, and it and a plethora of similar publications are what appears to drive the general thinking of the ACT party and this their proposed legislation.
However, Locke’s theory of possessive individualism has also been criticized as flawed equally consistently on two bases:
The first is his theory of property and its origins. Leaving aside the question of Locke adducing no basis in actual historical evidence for the existence of the creation of a social contract in any known society i.e. it is a purely metaphysical and theoretical concept, Locke proposed that property was its basis and was created by the simple act of what he called mixing or combining one’s labour with it. It is clear however from Locke’s writings that those who so combined their labour with, pre-eminently, land, did not in his perception include those who actually did the combining or indigenous cultures who owned it already i.e. had already taken possession of it when Europeans encountered them and their societies. It included only the elites of the societies who did the discovering or who employed the services of those who did the actual work of combining but not these latter. Locke should not in any way be mistaken for a democrat and nor should his subsequent disciples who, on the contrary are typically opposed to democracy as it is understood under our political arrangements.
At this point it is important to note that Locke did not earn his living as a political thinker. He had a day job as a major executive in government. Following the removal from the English throne of James II and the establishment of a new regime under William and Mary of Orange in 1688 Locke, who supported and was closely associated with this change, was appointed to a new and central body, the Board of Trade, through the influence of his patron, the Earl of Clarendon. In that capacity he was commissioned to investigate the state of England’s colony of Virginia. In this he attempted to implement his own theories as they were expounded in his Two Treatises and in particular argued that as the land of that portion of New England was not utilised to any degree by its aboriginal inhabitants, it could safely be regarded as terra nullis i.e. empty of any owners and therefore up for grabs. Among those who benefited from the adoption of this view was Locke himself who became a wealthy shareholder in the Virginia Company. It should also be noted that the conflation of personal and political interests with definitions of the universal common good appears to be a standard outcome of political theorising in human activities and no-one should be surprised at it appearing in Locke’s theory of property and his recommendations regarding Virginia. It is important, however, that it should not be lost to view in assessing such attempts at implementation as might be the source of the current proposed legislation in this Bill, and to remind ourselves that while it is true that governments serve the people it is pertinent to also enquire as to who the people in question might be.
The second flaw in the political theory of possessive individualism resides in what it leaves out. It makes no provision for a role for the state or government in any other than commercial activities and the protection of personal property rights. This completely ignores any role for the expression of collective or community interest and not only treats the major parts of human life which lie outside purely commercial matters as of no relevance, but renders them off limits to any activity by governments or the state. The patent absurdity of such a position on a planet threatened by climate change should be clear to even the meanest intelligence, but this apparently does not include those commercial interests associated with the underlying causes of that potential disaster. It also as another example is a philosophy adamantly opposed to the collective workplace rights of labour.
Our current constitutional arrangements
Although New Zealand has no written constitution we have a series of enactments which add up when considered together as a description of our constitution for all practical constitutional purposes. These are principally the Constitution Act, the Electoral Act, the Public Finance Act, and the Human Rights Act, with a great deal of related ancillary legislation. The proposed changes would render much of this legislation nugatory. I have already remarked that the current system works and there is no apparent case for its overturn, other than a desire to implement an ideology with which the great majority of New Zealand voters, election after election, have shown themselves to have little or no sympathy and towards which many have a positive antipathy.
It is helpful, I believe, in that circumstance, to be aware of the origins of our current constitution and to be aware of what would be lost if it is overturned and replaced by the proposed Bill.
Parallel to Locke’s philosophy there has been an alternative approach to political arrangements driving change and reform in British constitutional matters which we inherited when we gained self government in 1852 and which remains the source of our politics although we have vectored somewhat from it since. For example we abandoned a bicameral legislature in 1949, and have in addition a voting system based on MMP while Britain retains FFP. These origins similarly are relatable back to the period of the English Civil and the conflict between King, Charles I and Parliament in which the parliamentarians prevailed. Along the way it also led to the execution of Charles following a trial for making war on this own subjects, and the subsequent removal from the throne of his second son James II in 1688, essentially for attempting to reassert the Crown’s right to govern, including his proposals for Catholic religious toleration. This set of events established firmly and clearly the prime constitutional principle of parliamentary sovereignty.
But at the same time it brought to the fore an alternative and longstanding view that over the centuries the fundamental political rights of Englishmen (women not initially included) had been infringed and should be restored. This included a role in selecting Parliament .i.e. it was in favour of democracy. It precedes the seventeenth century and is summarized by the Lollard slogan “When Adam delved and Eve span/ Who was then the gentleman?” During the seventeenth century those espousing it were known as Levellers and comprised the bulk of Cromwell’s army. Cromwell, who was no more a democrat than Locke gave it short shrift and had its leaders imprisoned or executed. Consequently it went underground only to emerge again when the chaos of the industrial revolution gave rise to widespread protest concerning the condition of working people. This was given further impetus by the examples of the American and French revolutions, which may have reminded those in power that people in general could have a say politically, and that oppressive government could be overthrown if need arose.
The nineteenth century in politics in Britain is characterized by a series of radical English thinkers building on this revival beginning with Thomas Paine at the beginning of the century. But it also saw the development of some mass movements for political reform and popular rights through the Chartist agitation and the development of a growing trade union movement. This had an important effect on the development of the political culture in this country post 1840. People who travel to a new land bring not just themselves but their ideas with them. Many of the more than half a million people who arrived here between 1860 and 1880 were either Chartists or members of the Agricultural Workers Union encouraged and assisted to emigrate here in the wake of a failed series of major strikes, by the Vogel government of the day.
In conjunction with a serious international economic crisis in the 1880s which led to the sorts of economic and social distress many had emigrated to escape in the first place, and a relatively broad male franchise, this led in its turn to the election of an egalitarian and social democratic government in 1890 which proceeded to enact a political agenda which became the foundation of our political activity for the next eighty or so years. It was capped by the extension of the franchise to women in 1893 making New Zealand the world’s first state wide democracy. It should be made clear that not all citizens benefited from this development, most particularly the Maori people who by the 1970s had been robbed by one means or another of their lands and assets, but by that time they too were beginning to have some success in reasserting their opposition to these injustices
Naturally this was resented by those who had previously ruled as a landowning elite group in an almost copybook blueprint of Locke’s views in his Two Treatises, but their efforts to return to the status quo ante were confounded by their ultimate failures in subsequent elections up to and including the Second World War. This was especially the case following the formation of an originally left radical Labour Party in 1916, notwithstanding the creation of an anti-Labour coalition of political forces in 1936, which was only able to capture the Treasury benches by partially adopting the social democratic political culture of its Labour opponents.
As the world changed however, and especially following the American capture of control over the IMF and the World Bank in the seventies of the last century, New Zealand as a small and vulnerable trading agricultural economy tried to cope with this by following the model adopted by the larger economies, and from 1984 introduced a radical change political agenda, sometimes referred to as neo liberalism, but more accurately neo-Lockeanism, which sought to reverse many of the social changes made within our society post 1890. This was partially successful but left intact the parliamentary supremacy upon which the prior system relied, including such supports as an independent system of courts and many of the collectively and socially oriented laws previously in place, supplemented by the passage of others as need arose. These in particular included those relating to climate crisis, human rights and the redress of justified Maori concerns over past injustices.
Over the succeeding four decades, as it became increasingly apparent that the changes sprung on this country by the Lange/ Douglas government were broadly unwanted and unacceptable, these were partially reversed, despite attempts by the parliamentary agents of their original proponents to halt this and to continue with the change process they had pursued and to implement their agendas. This proposed legislation is the most recent attempt to do this and should be opposed because there is little evidence that anyone supports it.
To summarise: what we are faced with is what might be described as an extreme form of alt-right woke-ism in the name of an ideology irrelevant to us which will lead us to:
- Abandon the principle of unlimited parliamentary sovereignty as the basis of laws we might wish to make in favour of a severe limitation on that freedom;
- In doing so abandon democratic government in favour of rule in the interest of an effectively commercial and financial elite;
- Abandon a free and transparent court system in constitutional matters in favour of an over-riding advisory body governing the desirability of the laws we might wish to pass, and one moreover appointed not by voters, but by the politicians of the day, which will be able apply itself retrospectively (an option last used in the fifteenth century) and since eschewed for good reason.
There is something singularly bizarre about an attempt to impose a late seventeenth century European political theory on a nation at the other ends of the earth some three centuries after its formulation. It surprises me that anyone could seriously propose this, and I suggest that anyone seeking to do so does not have a firm grip on reality. Any temptation to take it seriously should be abandoned.
Tony Simpson
January 2025