When populists cannot be tamed
Opinion: In two weeks, we will take a delegation of New Zealand Initiative members to the Netherlands. We had hoped to study Dutch excellence in infrastructure, technology and regulatory reform. Now it looks like we will also land in a nation nursing a political hangover.
On June 3, the right-wing populist Geert Wilders destroyed the government he helped create just 11 months ago. His Party for Freedom withdrew support.
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NZ Herald
10-06-2025
- NZ Herald
Law & Society: Retroactive laws, real-time consequences
David Harvey: "Citizens lose confidence in the fairness and integrity of the legal system when laws can be changed after the fact to alter rights and obligations." Photo / Getty Images The courts and judges have come in for criticism of late. Roger Partridge of the New Zealand Initiative was critical late last year of recent decisions of the Supreme Court in a lengthy paper entitled 'Who makes the law?' – the obvious answer being Parliament. New Zealand First MP Shane Jones, likewise was personally critical of a High Court judge last year and 'had words' with the Attorney-General Judith Collins about his comments. Last month at a Law Association lunch, Jones criticised what he called the 'Americanisation' of the judiciary and of judicial activism, arguing it is Parliament that is sovereign. But what happens when Parliament itself travels outside its lane? What remedies are there for legislative overreach when Parliament is sovereign? An amendment to the Credit Contracts and Consumer Finance Act has been introduced. The act prescribes a number of circumstances where financiers have a duty of disclosure to customers. If disclosure rules are breached, the lender forfeits interest rates and fees on the transaction. Two banks, ANZ and ASB, failed to make proper disclosure and are subject to claims on behalf of 173,000 customers – a sizable cohort. Court proceedings are well under way. The amendment is retrospective in that it is designed to minimise the liability of the banks for actions that were unlawful at the time. So Parliament retrospectively cures their unlawful acts and the 173,000 potential claimants lose out. Parliament can do anything it likes, according to Jones. The only problem is there are rules about retrospective legislation. Section 12 of the Legislation Act 2019 states very simply: 'Legislation does not have retrospective effect.' The New Zealand Bill of Rights Act 1990 also makes it clear there should be no retroactive penalties, though that rule is more applicable to criminal cases. The issue of whether laws have provided retroactive penalties have troubled judges, academics and law students in examinations for some years. One of the core principles of the rule of law is that individuals must be able to know in advance what conduct is legal or illegal. Retrospective laws can punish people for actions that were legal when committed, which violates this predictability. In the case of the Credit Contracts and Consumer Finance's Act, the retrospective law deprives 173,000 people of a remedy they would have had. Similarly, the retrospective changes to the pay equity process have halted 33 pay equity claims affecting many thousands of workers. Citizens lose confidence in the fairness and integrity of the legal system when laws can be changed after the fact to alter rights and obligations. This can foster fear and uncertainty. Some argue retrospective laws violate fundamental human rights and democratic principles, as they remove the ability of individuals to make informed choices based on existing laws. Although retrospective laws are generally discouraged, there are rare cases where they are justified – such as when correcting legal loopholes or addressing past injustices. However, they remain controversial and should be used with extreme caution. Is there a remedy for this overreach? No, other than by way of the ballot box. We have no overriding constitution. We have no court that can say Parliament is in breach of the rules and challenging a fundamental premise of the rule of law and that changes such as those to the credit act and pay equity regime are 'unconstitutional'. But perhaps the problem is deeper. Perhaps we rely on Parliament too much to solve our problems. When a problem comes up it seems the government is the first port of call. Perhaps if there was less reliance on Parliament 'fixing' things, the risk of retrospective laws would be much smaller.
Newsroom
10-06-2025
- Newsroom
When populists cannot be tamed
Opinion: In two weeks, we will take a delegation of New Zealand Initiative members to the Netherlands. We had hoped to study Dutch excellence in infrastructure, technology and regulatory reform. Now it looks like we will also land in a nation nursing a political hangover. On June 3, the right-wing populist Geert Wilders destroyed the government he helped create just 11 months ago. His Party for Freedom withdrew support.
RNZ News
05-06-2025
- RNZ News
Health Committee hears submissions on Medicines Amendment Bill
The Medicines Amendment Bill will continue to be considered by the Health Committee over the next two months. Photo: 123RF MPs on Parliament's Health Select Committee were told by the public this week that, while the government's Medicines Amendment Bill is a step in the right direction, changes are still needed to ensure it balances safety with efficiency. The bill, which amends the Medicines Act 1981, received its first reading in April, and is a component of a wider push by the government to loosen burdensome regulation across sectors. Under current settings, prescription medicines can take a long time to be approved, funded, and made available to the New Zealanders that need them. Historically, we have ranked well below the OECD average for access to medicines. In his oral submission on the bill, New Zealand Initiative chief economist Dr Eric Crampton suggested that New Zealand simply wasn't a desirable target market for medicine companies. "We are a small, relatively poor country at the far end of the world that will not be at the top of anyone's agenda in getting their regulatory affairs team to deal with paperwork… It can take years after a drug has been approved by at least two markets overseas before anybody puts it into the New Zealand approvals process." In his submission, Crampton mentioned the concept of an "invisible graveyard," referring to the people who may have died or been harmed as a consequence of not having access to unapproved medicines. The Medicines Amendment Bill seeks to shake up the status quo, improving patients' access to medication by doing three things. Primarily it would introduce what has been dubbed as 'the rule of two', whereby if a medication has been approved for use in two recognised overseas regulators, Medsafe (New Zealand's medicines regulator), can bypass its usual, often lengthy, assessment process. The government hopes this will reduce the time it takes for new medicines to reach patients. The recognised overseas regulators are those from Australia, Canada, the EU, UK, USA, Switzerland and Singapore. As well as these fast-tracking medicine approvals, the bill also expands the power to prescribe medicine to a wider range of healthcare professionals, such as nurse practitioners, midwives, dentists, and optometrists, so long as the medication falls within their scope of practice. Thirdly, the bill updates some of the settings around the Medicines Classification Committee, which makes recommendations to the Minister of Health around how new medicines should be classed. This week the Health Committee also heard from Dr Graeme Jarvis, CEO of Medicines New Zealand, which represents pharmaceutical companies. While in support of the bill's intent, he told MPs, it needs refinement in order to better achieve its goal outcomes. When asked by Labour's spokesperson for Health Ayesha Verrall, why he was sceptical of the automatic approvals that Dr Crampton had suggested to the committee earlier, Dr Jarvis suggested that doing so would create "unintended consequences around parallel importing and other activities". "People flood the market, and the product may not necessarily be what you think it is, you may end up with counterfeit products coming in. There is no clawback for the regulator to go after a sponsor who has been acting in an unsatisfactory manner." When New Zealand lawmakers look outward for policy inspiration, they tend not to just throw a dart at a map on the wall and hope for the best. There are generally agreed comparable countries, commonly drawn on as case studies for good lawmaking here, which vary depending on the topic. The Medicines Amendment Bill's 'rule of two' provisions reflects this tradition, using a familiar set of jurisdictions in its list of recognised overseas regulators. Members of the Wellington Community Justice Project, a volunteer group made up of Victoria University law students, suggested to the Health Committee that while these overseas regulators have been historically reliable, that does not mean they always will be. "While the bill allows the minister to make rules for verification through secondary legislation so they can be refined to reflect changes in best international practice, we feel as though there needs to be something within the text of the bill itself, ensuring that the regulatory authorities themselves are regularly assessed and upheld to the standards of best international practice," the students told the committee. They went on to cite the current changes being made to the United States FDA, which has long been the world leader in approving medicine. "The FDA's placement on this list, most notably for the reason that the FDA is currently headed by RFK Jr, a health secretary who has been described as a conspiracy theorist, and relevant to this bill, has cancelled or frozen billions of dollars of research grants for the development of the medicines. Clearly, this bill [will outlast] RFK Junior's appointment. However, this example illustrates the need for a process to review the regulatory authorities in Section 22A, so when the questions arise about jurisdictions' suitabilities to be on the two-step verification process, these are able to be addressed." The Medicines Amendment Bill will continue to be considered by the Health Committee over the next two months, before being reported back to the House by the 9 August. You can listen to the audio version of this story by clicking the link near the top of the page. *RNZ's The House, with insights into Parliament, legislation and issues, is made with funding from Parliament's Office of the Clerk.
