The Prime Minister's opening statement to Parliament on 8 February 2011 signalled that the Government will introduce a Regulatory Responsibility Bill (RRB) and support its progress to Select Committee during the current Parliamentary term for public submissions and debate. As discussed below, the RRB would have important implications for stakeholders in the public policy process. It is questionable whether some of the controversial regulatory measures in recent years – such as the introduction of regulations in 2008 to specifically affect the outcome of a takeover bid for Auckland International Airport – would withstand scrutiny against the principles of responsible regulation enumerated in RRB.[1]

Regulatory Responsibility Taskforce

We anticipate that the RRB, as introduced to Parliament, is likely to substantially reflect the draft bill prepared by the Regulatory Responsibility Taskforce for its September 2009 report to the Ministers of Finance and Regulatory Reform.[2]

The Taskforce was concerned that the current set of institutional arrangements for the analysis of regulatory and legislative proposals do not constitute a sufficient safeguard against poor quality legislation. In particular, the Taskforce was concerned that undue haste, inadequate analysis, and the failure of policy-makers to explicitly confront the costs of their proposals have led to outcomes that are capricious or which do not accord with the rule of law.

Principles of responsible regulation

The Taskforce concluded that a new legislative framework is required to ensure that legislative and regulatory proposals are scrutinised against core constitutional principles. Specifically, the Taskforce proposed that Parliament should enumerate the following principles of responsible regulation:

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The Taskforce's draft RRB permits legislation that is inconsistent with the enumerated principles of responsible regulation, "to the extent that it is reasonable and can be demonstrably justified in a free and democratic society". This standard is adopted from section 5 of the New Zealand Bill of Rights Act 1990, which provides for justified limitations on rights and freedoms affirmed in that legislation. The analytical framework for scrutinising legislation against this standard has been extensively developed by the New Zealand and Canadian courts under the New Zealand Bill of Rights and the Canadian Charter of Rights and Freedoms.

Accountability mechanisms

The Taskforce's draft RRB would have important implications across all three branches of government:

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While the judicial power to make non-binding declaratory judgments would be new, the proposed interpretative guidance and certification requirements have parallels in sections 6 and 7 of the New Zealand Bill of Rights Act.


The Taskforce's proposed RRB contains a number of limitations which curtail the scope and effect of the RRB. The RRB's principal limitations are as follows:

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The quality of legislation and its consistency with fundamental civic values is a matter of concern for all New Zealanders. In recent years, the Government, prominent academics, business groups, and entrepreneurs have expressed concern over the quality of regulation and the hasty passage of measures which undermine important principles of good law-making.[3] We believe that the RRB's expected introduction to the House is timely.

We also believe that the members of the Taskforce have proposed a considered and thoughtful package of institutional reforms, which include significant checks and balances. In our view, the RRB deserves to be sent to Select Committee for thorough analysis and debate.