Constitutional law experts say the Regulatory Standards Bill, if passed, would cause a “fundamental constitutional shift from the current legislative landscape”.

An urgent Waitangi Tribunal interim report has called for an immediate halt to ACT’s controversial Regulatory Standards Bill. But it’s likely a draft bill will be approved by the cabinet and introduced to the House tomorrow.

Here’s Melanie Nelson with a closer look at what quietly changed between the RSB’s public proposal and the outline in David Seymour’s recent cabinet paper — and why that matters.

The Regulatory Standards Bill (RSB) will be finalised and introduced to the House tomorrow.

It proposes far-reaching neoliberal reform in line with ACT Party ideology. Its objective, as Professor Jane Kelsey explains here, “is to bind governments forever to the neoliberal logic of economic freedom.”

In expert evidence provided to the Waitangi Tribunal’s urgent hearing into the RSB this week, constitutional law expert Professor Andrew Geddis, supported by Professor Jonathan Boston, said the bill will create a regulatory constitution, and would cause a “fundamental constitutional shift from the current legislative landscape”. Toitū Te Tiriti claimants asserted that the bill, if passed, would constitute the most fundamental breach of Te Tiriti in modern times.

The ACT Party has tried to pass a version of this legislation three times since 2007 and has failed each time. Now it’s forcing the bill through as part of the coalition agreement.

The bill, as it’s currently proposed, would require all existing legislation (except for some listed exceptions), as well as future legislation and regulation, to be tested against a set of core principles. These cover the rule of law, liberty, the taking of property, taxes, fees and levies, the role of the courts, and good lawmaking.

The bill would also establish a regulatory standards board to assess how well the legislation aligns with those principles, and would give new powers to the Ministry for Regulation.

It is a dangerous bill that will fundamentally alter the foundational values of our country.

Only 76 (or 0.33 percent) of the 23,000 submissions on the Ministry of Regulation’s consultation document supported the RSB proposal. But, despite this, it’s proceeding rapidly with its principles largely unchanged.

Dr Carwyn Jones, in expert evidence for the Waitangi Tribunal, described the RSB principles as “anti-Treaty principles”, which would occupy the position of constitutionally superior law.

Adhering to the Treaty and its principles would require public explanation and justification, as they would be deemed an exception to the norm of “good regulation” under the regulatory standards law.

Regulation, reframed as legislation

Initially, the proposed RSB was intended to cover all “regulation” — broadly defined to include not just laws enacted by parliament (primary legislation) and regulations (secondary legislation), but also “any government intervention that is intended to direct or influence people’s behaviour, or how they interact with each other”.

Now, on paper, that’s changed.

The cabinet paper released on May 7 outlines the final policy decisions for inclusion in the bill.

The paper shows that the formal scope of some aspects of the bill has been trimmed, while others have been further expanded.

Now, the requirements for consistency assessments apply only to primary and secondary legislation. Agencies must review the legislation they create or administer and report on whether those laws are consistent with the RSB’s principles. However, the broader regulatory practices that underpin the legislation are no longer subject to the consistency assessments.

Some legislation will be exempted from these assessments. The Crown confirmed at the Tribunal hearing that Treaty settlement bills and acts will be excluded, as well as the Marine and Coastal Area (Takutai Moana) Act 2011 and the Ngā Rohe Moana o Ngā Hapū o Ngāti Porou Act 2019.

But while the bill’s legal scope has narrowed, the ideological reach hasn’t budged.

The same principles remain. The oversight machinery remains largely the same. And the same Minister for Regulation — currently ACT’s leader, David Seymour — will still control the levers of that machinery and determine how the principles are applied.

Where principles become practice

The Ministry for Regulation will be empowered to oversee the performance of the entire Regulatory Management System. It can gather information from ministries, agencies, Crown entities, the Reserve Bank, third-party providers, and even local government, with failure to comply considered a contempt of court. It can report publicly on the performance of the regulatory system. It can use the RSB principles as a yardstick — even in areas where those principles aren’t legally binding.

This is where things get more concerning.

Even without a legal obligation, many agencies are likely to bring their wider regulatory systems into line with the RSB principles anyway. Why? Because it avoids inconsistency. Because, by necessity, changes to legislation ripple through entire systems. Because public reporting creates pressure. And because the Minister for Regulation is likely to use every available lever — guidance, performance reviews, influence — to extend the ideological reach of the principles well beyond what’s on the page.

What’s been removed — and what still applies

The shift from regulatory systems to legislation looks significant. But in effect, the same selective principles will be embedded as the default standard of “good regulation” across the public service. Seymour has compared the RSB to the Public Finance Act: a discipline-setting tool, not just a rulebook.

That’s telling.

Even non-legislative aspects of regulation — how services are delivered, how licensing decisions are made, what discretion regulators exercise — may be reshaped in line with the RSB principles. Not because the bill says so. But because the new regulatory culture may increasingly expect it. Some of those addressing the Waitangi Tribunal described this as having a “normative” effect, and intending to influence how the public votes.

A quiet expansion of power

Some of the bill’s most consequential changes aren’t acknowledged as changes at all. The cabinet paper identifies only one dropped provision — the requirement for all primary and secondary legislation to be reviewed within a timeframe of 10 years. That was removed because of the cost and administrative burden. But other major shifts have been introduced quietly and without explanation.

The regulatory standards board, originally a tentative idea with a limited role, has been formalised and its role significantly expanded. It was described by claimants in the Tribunal hearing as an “anti-Waitangi Tribunal board”, which appears to be modelled on the Tribunal but with a broader jurisdiction.

The board will now have the power to scrutinise both existing and proposed legislation and report directly to select committees and the minister. This represents a clear departure from the earlier framing, where proactive scrutiny of proposed legislation by the board wasn’t envisaged.

Nor is there any requirement for existing legislation to be reviewed within a set timeframe. The board and ministerial reviews would function as sustained mechanisms for embedding the ideology across both existing and new law, from the time the RSB comes into effect on January 1, 2026.

Together, these changes shift the bill from a purportedly neutral quality-control framework to one that concentrates interpretive and agenda-setting power in the hands of the Minister for Regulation.

The cabinet decisions still allow the RSB to reshape New Zealand’s broader regulatory state — in slightly different ways to the proposal consulted on.

Treaty settlement impacts

Although Treaty settlement legislation is excluded, claimants to the Waitangi Tribunal argued that the RSB’s processes will produce unforeseen impacts on Treaty settlements, as settlements don’t codify Māori rights and interests. This is especially concerning in areas such as resource management and health.

Lawyers explained to the Tribunal that Treaty settlements address historic loss, and don’t remove the Crown’s responsibility to also address inequities and disparities.

They argued that if the RSB enabled the Crown to amend legislation to enforce a formal notion of “equality before the law” — thereby eliminating government affirmative action for Māori in response to colonisation —iwi would require hundreds of millions of dollars more to, for example, take on the role of a health agency for their people in the future. If iwi adjusted their negotiations to reflect this, it could result in the fiscal envelope being exceeded.

Where this lands: Discretion, relationships, and rights

These shifts have consequences for areas of regulation that depend on context, judgment, relationships, and flexibility, such as Treaty-based engagement, environmental consents, professional licensing and discipline.

The RSB is openly hostile to discretion, particularly the kind that allows public servants, professionals, or local authorities to apply judgment in specific contexts.

This includes the type of discretion used in resource consenting decisions where the significance of effects on the environment, ecosystem or community is assessed. It also includes Treaty-based decision-making, where engagement must be tailored and relational, and Treaty principles applied to the context. And it includes professional regulation, where boards determine whether a practitioner’s conduct meets contextual standards.

The RSB’s preference for rule-bound constraints risks crowding out these legitimate, and often necessary, forms of judgment, because it favours uniformity and predictability over responsiveness to context.

The RSB principle of consulting as part of good law-making has also been narrowed, from the proposed qualification of those considered “substantially affected” to those who are “directly and materially affected” by proposed legislation. This change in wording is likely to have repercussions for iwi and hapū whose values, wāhi tapu or kaitiakitanga, may be substantially affected by proposals, but who may not meet the higher threshold of being directly and materially affected.

A narrowed bill with the same reach

The apparent narrowing of the scope of the bill to primary and secondary legislation rather than regulation may well be strategic, designed to make the bill look moderate and manageable.

But when paired with soft power avenues — oversight, reporting, funding signals, and political pressure — the RSB has the ability to reshape how regulation works across the board, alongside its more visible non-binding but significant constraints on legislation.

This is not just a bill about how laws are written. It’s a bid to redefine how the regulatory state thinks, acts, and justifies itself in line with a minor party’s ideology. And it may succeed — quietly, systemically, and without ever having to say so.

Next steps

Claimants to the Waitangi Tribunal were clear that they are not seeking to have the Treaty principles added to the RSB, as that would not resolve the issues. They were seeking, and have achieved, a recommendation from the Tribunal that the RSB be abandoned entirely.

In the Tribunal’s interim urgent report, it recommended that the Crown immediately halt the advancement of the bill, to allow for meaningful engagement with Māori.

The Tribunal says the bill should not progress in its current form. It says the Crown should engage in good faith consultation with Māori, including about options to improve regulatory standards outside the currently proposed legislation.

Nonetheless, it’s likely the RSB draft legislation will be approved by cabinet tomorrow (May 19) and introduced to the House on the same day. A date has not yet been confirmed for the first reading, but it’s been noted that the RSB will proceed to the select committee following this. The select committee process will be the public’s final opportunity to have a say.

Melanie Nelson (Pākehā) is a consultant, educator, speaker and writer. She hosts the Coherent podcast on political issues and Weaving our Worlds to promote cross-cultural understanding. She is also a licensed Māori language translator and interpreter. Melanie is a graduate of Te Panekiretanga o te Reo Māori / Institute of Excellence in the Māori Language and holds a master’s degree in Māori Language Excellence — Te Tohu Paerua o te Reo Kairangi.

• A linktree with further information on the RSB will be updated here.

E-Tangata, 2025