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Letter to the Attorney-General Concerning The Ministry of Justice's BORA Compliance Report on the Regulatory Standards Bill

The Hon Judith Collins KC
Attorney-General

Via email

(cc: Minister of Justice, CEO Ministry of Justice, Chief Counsel Ministry of Justice, Chief Human Rights Commissioner, Chief Legal Officer Human Rights Commission)

Dear Attorney-General,

Re: Urgent Request to Revisit Ministry of Justice Advice on the Regulatory Standards Bill's Consistency with the New Zealand Bill of Rights Act 1990

We write with profound concern regarding the Ministry of Justice's advice dated 15 May 2025, concerning the consistency of the Regulatory Standards Bill with the New Zealand Bill of Rights Act 1990 (NZBORA). As one of Aotearoa's leading non-governmental organisations devoted to promoting and defending universal human rights, Rights Aotearoa[1] has grave concerns that the Ministry's conclusion that "the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act" represents a dangerously superficial analysis that fails to grapple with the Bill's fundamental constitutional implications and its inevitable downstream effects on human rights in Aotearoa New Zealand.

The Fundamental Flaw in the Ministry's Analysis

The Ministry's advice contains a critical error in paragraph 6, which acknowledges that the Bill's principles "appear novel in some respects" and "depart from how rights and freedoms, and the circumstances in which limitations on them may be justified, are expressed in the Bill of Rights Act," yet dismisses these concerns with the remarkable conclusion that the principles "do not... engage rights and freedoms in, or affect the operation of, the Bill of Rights Act."

This conclusion is constitutionally and logically incoherent. The Ministry cannot simultaneously acknowledge that the Bill establishes a parallel and conflicting framework for assessing rights and freedoms, while maintaining that it has no impact on NZBORA. The Bill creates what is effectively a competing quasi-constitutional framework that elevates narrow economic and property rights above the comprehensive human rights protections in NZBORA. This parallel system lacks the careful balancing mechanisms, particularly section 5's justified limitations test, that make NZBORA workable in a democratic society.

The Ministry's analysis fails to consider how the Bill's mechanisms will operate in practice. Whilst technically the principles may not be "enforceable in a court of law," the mandatory consistency accountability statements and the Regulatory Standards Board's oversight create immense political and procedural pressure that will inevitably chill legislation protecting NZBORA rights. The Ministry has considered only the Bill's direct effects, not its obvious and intended indirect consequences.

Specific NZBORA Inconsistencies the Ministry Failed to Consider

The Ministry's narrow focus on section 14 (freedom of expression) and its perfunctory treatment of that single right reveals a failure to conduct the comprehensive analysis this constitutional moment demands. The Bill creates clear conflicts with multiple NZBORA rights:

Section 12 (Electoral Rights): The Bill fundamentally undermines the democratic franchise by constraining future Parliaments' ability to respond to electoral mandates. When citizens vote, they expect their representatives to have genuine law-making power. By imposing rigid ideological constraints on future legislation, the Bill diminishes the substantive value of the vote itself. The Ministry failed entirely to consider this assault on democratic participation.

Section 19 (Freedom from Discrimination): The Bill's narrow economic principles and emphasis on property rights will systematically disadvantage legislation aimed at achieving substantive equality. Measures to address historical injustices, support vulnerable communities, or achieve equity outcomes could be challenged as "impairing" property rights or failing restrictive cost-benefit analyses. The Ministry's silence on this discriminatory potential is inexcusable.

Section 20 (Rights of Minorities): The deliberate exclusion of Te Tiriti o Waitangi from the Bill's principles, despite the Waitangi Tribunal's damning findings and overwhelming opposition from iwi and hapū, represents a direct attack on the rights of tangata whenua. The Ministry's failure to analyse this in their NZBORA assessment suggests either willful blindness or fundamental misunderstanding of Māori rights as indigenous peoples.

Section 8 (Right not to be deprived of life): The regulatory chill created by the Bill's compensation mechanisms and narrow cost-benefit requirements will inevitably deter governments from enacting regulations necessary to protect human life—whether environmental protections against toxins, public health measures, or safety standards. The Ministry's analysis completely ignores how the Bill's framework could lead to preventable deaths through regulatory paralysis.

The Bill's Systematic Undermining of Anti-Discrimination Protections

The Ministry's analysis catastrophically fails to consider how the Bill will interact with New Zealand's broader anti-discrimination framework, particularly section 21 of the Human Rights Act 1993. This section prohibits discrimination on grounds including sex, gender, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation.

The Bill's principles create a framework that will systematically favour laws perpetuating discrimination whilst making anti-discrimination measures more difficult to implement. Consider how the Bill's emphasis on property rights and narrow economic efficiency would affect essential anti-discrimination measures:

·       Requiring businesses to provide reasonable accommodations for disabled employees or customers could be characterised as "impairing" property rights or imposing undue compliance costs.

·       Pay equity legislation addressing gender or ethnic pay gaps could be challenged as interfering with employers' property rights in their businesses.

·       Regulations preventing discrimination in housing, lending, or service provision could be deemed economically inefficient under the Bill's narrow cost-benefit framework.

The Bill essentially creates a hierarchy where property rights and economic efficiency trump human dignity and equality. This is not merely a theoretical concern. We have seen internationally how similar "regulatory reform" initiatives have been weaponised to challenge anti-discrimination protections as "red tape" or "compliance burdens."

The Ministry should have analysed how the Bill would affect landmark anti-discrimination achievements like the Equal Pay Act amendments, accessibility requirements in building codes, or protections against discrimination in employment. Each of these could be vulnerable under the Bill's framework, yet the Ministry remains silent on this fundamental threat to equality.

Furthermore, the Bill's requirement for compensation when regulations "impair" property creates a perverse incentive structure. Businesses could claim compensation for the costs of complying with anti-discrimination requirements, effectively requiring taxpayers to subsidise discrimination prevention. This transforms the fundamental principle that businesses must bear the costs of operating without discrimination into a system where the public pays businesses not to discriminate.

The Constitutional Crisis in Waiting

The Ministry's advice fails to recognise that this Bill creates an untenable constitutional tension. It establishes "principles of responsible regulation" that will routinely conflict with NZBORA rights, yet provides no mechanism for resolving these conflicts beyond the political pressure of "inconsistency" findings. This is a recipe for constitutional chaos, not "better regulation."

Consider a concrete example the Ministry should have analysed: future legislation to address climate change through restrictions on certain property uses. Such legislation would likely be deemed "inconsistent" with the Bill's property rights principles, requiring compensation claims. Yet failing to enact such legislation could violate the state's positive obligations under section 8 (right to life) given climate change's existential threat. The Bill creates this impossible choice without providing any framework for resolution.

The Ministry's advice also ignores the Bill's creation of a competing hierarchy of rights. NZBORA rights are subject to section 5's careful balancing test—they can be limited by reasonable limits "demonstrably justified in a free and democratic society." The Bill's principles, particularly regarding property, are presented as near-absolute, with compensation as the primary remedy for "impairment." This establishes property rights as superior to all other rights, fundamentally distorting our human rights framework.

 

The Failure to Consider Cumulative and Systemic Effects

Perhaps most troublingly, the Ministry's analysis treats the Bill as if it operates in isolation, rather than recognising it as a fundamental alteration to New Zealand's entire law-making architecture. Every future piece of legislation will be assessed against these narrow principles. The cumulative effect will be a systematic bias against regulations protecting human rights, environmental sustainability, and social equity.

The Ministry should have considered how this framework would have affected landmark pieces of legislation. Many of those could be characterised as "impairing" property rights or imposing "compliance costs." Under the Bill's framework, such essential protections would face additional hurdles, political pressure, and potential compensation claims.

Urgent Action Required

Attorney-General, the Ministry of Justice's advice on this Bill represents a grave failure of constitutional analysis. At this critical juncture, when the Bill has passed its first reading despite overwhelming public opposition, you have both the power and the responsibility to demand better.

We implore you to instruct the Ministry to conduct a comprehensive re-evaluation that:

  1. Analyses the Bill's downstream effects on all NZBORA rights, not merely its direct provisions
  2. Considers how the Bill's mechanisms will operate in practice to chill human rights protections
  3. Examines the constitutional implications of creating a parallel framework for assessing rights
  4. Evaluates the Bill's failure to incorporate Te Tiriti o Waitangi as a fundamental NZBORA issue
  5. Assesses the cumulative impact on New Zealand's ability to protect human rights
  6. Specifically analyses the Bill's impact on anti-discrimination protections under both NZBORA and the Human Rights Act

The current advice's conclusion that this Bill is consistent with NZBORA is not merely wrong—it is dangerously misleading. Should this Bill proceed based on such flawed analysis, it will precipitate a constitutional crisis and numerous legal challenges. More fundamentally, it will undermine the human rights protections that generations of New Zealanders have built.

If the bill passes our CEO will file for a declaration of inconsistency with the Bill of Rights act in the High Court on the first day the Act comes into force.

History will judge harshly those who enabled this assault on our democratic and human rights framework through inadequate scrutiny. We trust you will act with the constitutional gravitas this moment demands.

Ngā mihi nui, 

Paul Thistoll

CEO

Rights Aotearoa

 

[1] Rights Aotearoa was formerly Countering Hate Speech Aotearoa. Our new name more adequately reflects our widened kaupapa.