Kindergartens Aotearoa is a collective of early childhood education (ECE) service providers operating over 260 licensed centre-based and home-based services across the country 1 catering for over 12,000 children each day. We also provide social services to many families and young people in our regions. As service providers, we have considerable experience working with the regulatory system across government institutions.

Kindergartens Aotearoa opposes the Regulatory Standards Bill as proposed and calls for it to be rejected.

The Ministry for Regulation States: 

The government of New Zealand uses regulation to protect the community from harm and to improve the standard of living of its people. Regulation is about influencing people’s behaviour to improve outcomes for all New Zealanders. This involves laws, rules and other ways to influence what people do. The rules, organisations and their practices – the whole regulatory system – work together to shape people’s behaviour and interactions and improve the lives, work and businesses of all New Zealanders.

The proposed bill ignores this fundamental premise of regulation, instead favouring individual freedoms at the expense of the public good. It is totally unacceptable. The proposed bill:

▪ is based on a false premise
▪ undermines our democratic process and institutions
▪ undermines Te Tiriti o Waitangi
▪ impacts the well-being of children
▪ is an unnecessary exercise

The ECE sector was the first to be reviewed by the Ministry of Regulation. The review took a ‘principles based approach’ referencing the principles set out in this proposed bill. In our submission to the ECE regulatory review team we noted the approach “… introduces a technical lens to the review and prompts the question ‘who’s interests are served’ in applying the principles.”

The review of ECE regulations made 15 recommendations many of which related to interpretation and application of regulations and inter-agency relationships. However, significant changes were recommended which clearly reflect the primacy of business owners’ interests over the interests of children and quality service provision. Promoting individual interest over the collective interest is a core principle of this proposed bill.

False Premise

In his introductory remarks to the discussion document, the Minister for Regulation states “Most of New Zealand's problems can be traced to poor productivity, and poor productivity can be traced to poor regulations.” There is no evidence this is the case and to state it as fact is misleading. Further, to build the argument in support of the proposed bill based on such false premise is deeply flawed and irresponsible.

Democratic Process and Institutions

Our democratic process allows us to shape the values we want to underpin our regulatory system. What we value as important for our children, families and communities now and for future generations, underpins policy which is then upheld and supported by our regulatory system.

The proposed bill threatens the foundations of our democracy. It removes the responsibility of our elected representatives to protect the interests of all New Zealanders. It prioritises individual interests over collective interests, impacting cultural, social, environmental and economic outcomes across all communities. The proposed bill divests significant powers to the Minister of Regulation to call for investigations and to make decisions. It undermines trust and confidence in our regulatory system.

The proposed bill distances the courts from impartial decision-making, ignoring the volume of regulation supporting rights and protections for all under our laws. Individuals including corporations would be able to take claims that government decisions breach the proposed bill’s principles directly to the ministerial appointed Regulatory Standards Board. The court would have no role in holding government law makers to account.

Te Tiriti o Waitangi

Te Tiriti o Waitangi is our nation’s founding document, based on partnership between Māori and the Crown. It underpins our legal and social framework. The proposed bill seeks to undermine that framework. In its advice to government on the Principles of the Treaty of Waitangi Bill, the Ministry of Justice recommended the status quo to ensure treaty obligations are upheld, maintain clarity and certainty, promote social cohesion and consensus, and maintain constitutional legitimacy.

Parliament acknowledged the principles of Te Tiriti o Waitangi in legislation in 1975, and since then the Waitangi Tribunal and courts have presided over their interpretation and application. The proposed bill removes Te Tiriti o Waitangi from the list of considerations that inform regulation including legislation, aside from treaty settlements. This amounts to a unilateral attempt to vary, amend or alter the place of Te Tiriti in the constitutional foundation of our nation.

Well-being of Children

In ECE, regulation ensures services meet the intent of government policy and are accountable for the use of public funds. Regulation assures us as a society that standards and protections are in place.

The proposed bill threatens the well-being and safety and the quality of education provision, for babies and young children and the staff who work with them in early childhood education services. Regulation advantaging service owners’ interests mean owners would have more freedom to determine how they operate their services, including decisions on health and safety practice, curriculum, and employment matters.

We continue to be concerned that many ECE services operated as private businesses, are trying to use the government’s review of ECE regulations to drive down quality and reduce teachers’ pay thereby increasing their profit margins. New Zealand has some of the highest fees for participation in ECE in the world, while spending $2.8 billion of public money on early childhood subsidies. The proposed bill will exacerbate the situation to put owner interests ahead of the public good.

Providers would be at liberty to challenge Ministry of Education policy introducing new requirements for qualified teachers for example, on the basis that it would diminish their profitability. Moreso, the proposed bill could undermine current regulatory provisions retrospectively after 10 years. Not only could children’s physical well-being be at risk but also teaching and learning, effectively usurping government’s own intentions to lift educational outcomes.

The principles of the proposed bill relate to who is receiving the benefits of regulation, who is bearing the cost, and are the benefits reasonable, affordable, and proportionate to the costs? Regulation will be applied differently depending on whose interests take priority as we are seeing playing out in ECE.

Unnecessary Exercise

This bill is unnecessary. We currently have existing systems of regulatory monitoring and control which if warranted, could be strengthened – for example strengthening parliamentary oversight. Such alternatives would be much cheaper and much less damaging to our democracy.

Conclusion

In conclusion, to quote Emeritus Professor Jonathan Boston ONZM in his comments on this proposed Bill:

Despite some good intentions, the proposed Regulatory Standards Bill, as outlined in the Discussion Document (Ministry for Regulation, 2024a), should not be enacted. It suffers from many (but not all) of the serious flaws which dogged previous versions of the Bill over recent decades, and which contributed to these versions being repeatedly and conclusively rejected by decision-makers. While some of the several dozen principles and administrative requirements proposed for inclusion in the Bill have merit, many others do not; and some are open to strong philosophical, constitutional, and practical objections. Moreover, there is no guarantee that any benefits generated by the proposed legislation will outweigh the additional costs that will be imposed on our policy-making system. Accordingly, the current proposal should be shelved; nor should any similar proposal be advanced in the future.

We strongly endorse Professor Boston’s view and recommend that development of the proposed bill be discontinued, and urge the Ministry of Regulation to make such a recommendation to the Minister.