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Richard P Boast and Susy Frankel “Defining the Ambit of Regulatory Takings” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). In this chapter we explore the ambit of so-called regulatory takings of property and related issues further. Our focus in this chapter is to anchor the issues firmly to New Zealand's own political and legal contexts.
The problem of defining the acceptable boundaries between legitimate public action by the state and the protection of private property rights and interests is anything but straightforward, and is characterised by a diverse range of responses in a number of countries. The pivotal problem is not that of direct compulsory acquisition for public purposes, which New Zealand, like most other equivalent jurisdictions, regulates strictly, and which has long been fully compensable at market values – putting to one side for the present the particular problems associated with interests in Māori freehold land.[3]
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Derek Gill “Applying the Logic of Regulatory Management to Regulatory Management in New Zealand” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). Some fundamental forces that will continue to shape New Zealand are local manifestations of globally occurring phenomena, including the internationalisation of policy, climate change, population ageing, the shift in economic and political power from west to east and globalisation.[27] New Zealand cannot impact these global forces of change in any significant way, although it can choose how to respond. Other influences that will contribute to shaping New Zealand are unique to its heritage and geography. These influences include:
New Zealand's unique geography, including the relative isolation, size, geology and extensive exclusive economic zone and continental shelf; and
New Zealand's unique constitutional arrangements, including one house of Parliament, concentration of power in the central government executive and the role of Māori as parties to the Treaty of Waitangi.
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Daniel Kalderimis “Regulating Foreign Direct Investment in New Zealand –Further Analysis” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). New Zealand's small size (which limits our domestic capital); New Zealand's geographical isolation (which makes it hard for us to penetrate foreign markets without local assistance); and the importance of land to our national identity – both Māori and Pākehā (which makes us wary of permitting foreign investment in land). These three factors are presently seen by many as three separate problems. The first two, however, neatly combine into a single solution – foreign capital can complement New Zealand's domestic capital markets and also build bridges to foreign markets. The sticking point is how to address land issues.
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Paul Scott “Competition Law and Policy: Can a Generalist Law be an Effective Regulator?” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). In terms of mergers and some restrictive trade practices, the Commerce Act allows authorisation of these when the public benefit outweighs any detriment.[13] The courts' focus has been on efficiency benefits, which again is good for the overall benefit of the economy. This is relatively unique to New Zealand as there is no authorisation process in the home of competition law – the United States.
Gal has argued that small economies cannot adopt measures of market power such as the Herfindahl-Hirschman Index (HHI) used in United States merger analysis.[14] New Zealand competition law, like others, has taken this advice.
Some commentators have argued that small economies should not make use of per se rules such as those against price fixing and boycotts.[15] They argue that agreements to fix prices can be welfare-enhancing as the prices fixed form ceilings rather than floors. The New Zealand Parliament and courts have ignored this advice. Price fixing has been and is per se illegal. Indeed Parliament, following most of the rest of the world, is criminalising naked cartels.[16] Given that naked cartels are unambiguously inefficient and damage consumers the call for elimination of per se rules will go unheeded. In any event if a price fixing agreement is efficient as claimed then the parties can seek authorisation.
While New Zealand is a small market economy, this has not impacted section 36. Gal claims small market economies with high levels of concentration need more robust monopolisation provisions.[17] I do not agree that there should be any difference in monopolisation laws between large and small economies.
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Kate Tokeley “Consumer Law and Paternalism: A framework for policy decision making - Further Analysis” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). New Zealand society has historically been relatively open to legal paternalism. Australia and New Zealand, for example, were the first countries in the world to introduce mandatory helmets for pedal cyclists in 1990.[12] Further, along with Australia, the United Kingdom and Europe, New Zealand is noted for its welfare state provisions such as a public health system and an extensive benefit regime. The ideals of the welfare state are compatible with an acceptance that the government has a role to play in paternalistically protecting consumers. In comparison, the United States is not generally considered a welfare state because there is less of a safety net provided by the government and more reliance on the market.
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Kate Tokeley “Consumer Law and Paternalism: A framework for policy decision making - Further Analysis” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). Another possible unintended consequence of a paternalistic regulation is excessive costs both to the government and to suppliers. Costs to the government include the costs of formulating, monitoring and enforcing the legislation. These costs are passed on to the New Zealand taxpayer. In some cases it might be decided that these costs are not worth expending for the potential benefits of the regulation. Costs to suppliers include compliance costs and those associated with attempts to reduce regulatory compliance costs. These are likely to be passed on to consumers and divert resources away from product innovation.[87] The small scale of the New Zealand economy might mean that excessive regulation in some industries could stifle innovation altogether.
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Kate Tokeley “Consumer Law and Paternalism: A framework for policy decision making - Further Analysis” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). Policy makers should proceed with caution when applying overseas research on regulatory issues to the New Zealand context however. Some overseas findings will not apply to the specifics of the New Zealand situation.
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Daniel Kalderimis “Regulating Foreign Direct Investment in New Zealand –Further Analysis” in Susy Frankel and Deborah Ryder (eds) Recalibrating Behaviour: Smarter Regulation in a Global World (LexisNexis 2013). The real political stumbling block is not the issue of foreign investment in general, but the issue of foreign land ownership in particular. Land ownership has strong historical and cultural associations for both Māori and Pākehā. The genesis and layers of these associations are outlined in the general history books by James Belich[85] and Michael King.[86] They are also addressed more specifically in Richard Boast's 2008 book Buying the Land, Selling the Land.[87] To vastly oversimplify, for Māori, land ownership has a spiritual and symbolic, as well as an economic, element. The land represents both a source of identity and belonging, as well as the historical narrative of progressive and widespread land alienation.[88] For Pākehā, land ownership in small titles held by families was a chief objective of settlers leaving parliamentary enclosures in feudal Britain – and taking with them protestant belief systems which regarded developing farmland as a form of moral imperative.[89]
The strength of Māori and Pākehā land associations were in play – and diametrically opposed – in the bitter political battle over the foreshore and seabed legislation, which culminated in the Marine and Coastal Area (Takutai Moana) Act 2011. That Act – and its innovative notion of public domain ownership[90] – was a symbolic solution to a political problem. Two Australian researchers have emphasised the distinctive importance of land ownership in New Zealand in a comparison of the role of cultural norms in the regulation of FDI in Australia and New Zealand.[91] That context may explain, perhaps, the resonance of the slogan that New Zealanders do not want to be "tenants in our own land".