About the New Zealand Council for Civil Liberties 

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not for-profit organisation which advocates to promote human rights and maintain  civil liberties. 

2. We wish to make an oral submission to the Committee. 

Introduction 

3. The Council’s submission focuses mostly on Parliament’s select committees.  These are a focal point for the public’s engagement with their elected  representatives, and where the general public have the opportunity of  influencing both the scrutiny of legislation and Members’ understanding of  matters they inquiring into. We focus on the scrutiny of legislation, as it is  where we have had most experience. 

4. Our submission is made on the basis that submitters have a common objective  with that of Members – that the outcome of the scrutiny process should be the  highest quality legislation possible, even if this may sometimes mean  recommending that the bill be withdrawn for redrafting or consultation. Our  submission makes recommendations to improve the quality of select  committee and parliamentary processes so as to try and avoid that second  situation. 

5. We also make recommendations about the provision of NZ Bill of Rights Act  vetting reports during the legislative process. 

6. The Council also makes a recommendation regarding the use of urgency when  enacting legislation, and what disincentives might be created to reduce its use. 

7. Finally, we make a recommendation on how Parliament might incentivise  governments to consult the public on exposure draft bills, prior to introducing  legislation into the House.

Select Committee Scrutiny of Bills 

8. The Council has made numerous submissions to select committees on  different pieces of legislation, and our recommendations draw on that  experience. We examine what can improve the process for submitters, and  what can be done to strengthen the independence of the legislature from the  executive. 

Provision of information 

9. The Council assumes that what most assists a select committee when  scrutinising a bill are high quality written and oral submissions. There are a  number of things that could be done to assist submitters in this regard. 

Contextual documents  

10. When a bill is introduced, a page is created on Parliament’s website. This has  subdivisions (tabs) for Bill History, Bill Digest, Hansard, Reports, Submissions  & Advice, Video and SOPs.¹ 

11. What is missing from this page that would provide useful context and  background for prospective submitters are links to documents the government  produces for each government bill. These are: 

• The report on compliance with the NZ Bill of Rights Act 1990
• The Departmental Disclosure Statement 
• The Regulatory Impact Assessment 
• The Cabinet papers or ministerial briefings on the bill 

12. These documents provide valuable information to help people understand why  a bill has been drafted the way it has. They supplement the Explanatory note found at the start of the bill, and help people understand what the policy intent  is, how its impacts have been considered, and whether it complies with or  departs from the rights set out in the Bill of Rights Act. Reading them is key to  making a more useful submission to the select committee. 

13. The Council understands the constitutional point about the website being  Parliament’s publication and the documents listed above being those of the  government. Simply put, Parliament should consider whether this barrier to communication and transparency is important enough to harm its ability to  receive better quality submissions. It would be quite possible to put the links to  these documents on the page for the bill, but with a box around them and  introductory text that makes very clear that these are the government’s  documents and not Parliamentary publications. 

Recommendation 1  The Standing Orders should contain a provision requiring information to be  made available to the public before a call for submissions. Parliament should  provide links to the Bill of Rights Act vetting report, Departmental Disclosure  Statement, Regulatory Impact Assessment and Cabinet papers on the bill on  the webpage for the bill on Parliament’s website, with a disclaimer that they are  government documents, not Parliamentary papers.

Publication of written submissions  

14. One of the things that helps submitters make good oral submissions is being  able to read the written submissions of others. Presumably it also helps the  committee members to know where there is support from different  organisations and people for recommendations made by others. 

15. Unfortunately, although written submissions are vetted for publication by  committee staff as they are received, they are not published on Parliament’s  website until the first day that the committee begins to hold public sessions to  hear oral submissions. Presumably this is because the committee officials are  waiting for the committee to direct that they be published, and this only takes  place in a committee meeting on that bill.

16. This means people who make their oral submission after the first day have the  opportunity to read the written submissions from others, but those who make  their oral submission to the committee on the first day are disadvantaged by  not being able to do so. 

Recommendation 2  Standing Orders should require the publication of written submissions on  Parliament’s website as soon as practicable after they have been vetted by  committee staff. Alternatively, if procedures require that a committee grant  permission for publication, the Standing Orders should be amended to ensure  no oral submissions are made until at least 48 hours after the committee has  directed officials to publish the written submissions, and that happens. Submitters should be notified when their submission has been published.

Written and audio-visual recordings of committee hearings  

17. Following the 2020 Review of Standing Orders, Hansard records are now made  and published for some select committee sessions. However, these appear to  be limited to where committees are holding inquiries, for example scrutinising  the responses departments and Officers of Parliament have provided to  questionnaires sent to them by Members. 

18. It would be a significant assistance to Members not on the select committee,  and to the public interested in a bill, if Hansard records were also created and  published for oral submissions to select committees on bills. 

19. Related to this, significant improvements are needed to the video streaming  and recording of committee hearings of oral submissions. It appears that for  reasons of cost saving, Parliament opted to use Facebook as its video  streaming and recording platform. This is problematic both in functional terms  and because of the company chosen. 

20. In terms of functional problems, a much more accessible hosting system is  needed. The recordings should be searchable, with time-stamping of each  witness’s appearance, and connected to agenda items. This will enable people  to find the recording of the witness they want to watch or share, and connect it  to the written record, as well as a link to that witness’s written submission. 

21. The platform used by the Welsh Parliament does this, and we urge the  Standing Orders Review to visit that Parliament’s website themselves to see  how people are better enabled to follow how their elected representatives  scrutinise legislation and hold inquiries. A screenshot of one contribution to a  committee’s proceedings is presented below, as an example.

Screenshot from this page: https://record.senedd.wales/Committee/12855 

22. There are several things to note about this page. First, it is bilingual, and as the  closing date for submissions to the Standing Orders Review is at the end of Te  Wiki o te Reo Māori for 2022, and the 50^th anniversary of the presentation of  the Māori Language Petition to Parliament, it is time for the Hansard of  Parliament of Aotearoa New Zealand to present proceedings bilingually. 

23. Second, the buttons in the top right corner appear for each speaker’s  contribution to the proceedings. In turn, they enable copying of that particular  contribution to the person’s computer clipboard, and sharing that contribution  to social media. 

24. Third, in the top right for each contribution is a button marked ‘Video’. Clicking  on that button will bring the reader to a different page. 

25. This is the page for the video recording for the whole session. But the link from  that contribution takes the reader to that part of the video recording. Note too  that tools are provided beneath the recording to share or download a clip of  the video recording, or indeed all of the proceeding. On the right of the page is  the agenda of the committee for that session, and clicking on the agenda item  takes the reader to the start of the video recording for that item. Finally, note  that beneath the agenda is a link to the ‘Meeting information and papers. This  takes readers to a separate page which provides the agenda, expected time  for the agenda item, and links to the relevant papers for that agenda item.

Source: http://www.senedd.tv/Meeting/Archive/b26a8a16-a68f-4689-a1b1- 1eb427695a2d?startPos=167&autostart=True 

Source: https://business.senedd.wales/ieListDocuments.aspx?CId=741&MId=12855

26. Even if Parliament does not decide to help itself and the public by significantly  improving its website and video platform along these lines,² it should stop  using Facebook as its tool for making video available. 

27. Multiple investigations by legislatures and independent regulators around the  world, including our own Privacy Commissioner, have shown how Facebook  misuses personal information as an integral part of its business model.³ It has  also been shown that the company has provided insufficient moderation  resources to prevent the spread of disinformation in circumstances where this  has led to serious public disorder and attacks on ethnic minorities. The use of  Facebook comes with risks such as possible abuse of submitters by others  with different views. This occurred during the recent select committee  consideration of the Conversion Practices Prohibition Bill, prior to committee  staff turning off the ability to make comments. The Parliament of New Zealand  should not make members of the public visit Facebook in order to see our  legislature’s operations. 

28. If Parliament does not invest in a better, more functional website, it should use  the pages created for each bill to also collect in one place the links to the  Hansard for oral evidence sessions and to the video recordings. The tabs for  these two kinds of information already exist on those pages, but currently only  link to Hansard for debates in the chamber and to video recordings made by  Parliament TV of debates in the chamber. 

Recommendation 3  Parliament should invest in a website which presents a record of proceedings bilingually, which hosts its own video recordings of all proceedings, not just  those in the chamber, that in turn provides search functionality for oral  testimony by individual speaker, and links to time-stamped portions of the  video recordings.  Recommendation 4  In the interim, Parliament should create Hansard records of oral submissions on  bills and place links to these in the Hansard tab on the webpage for each bill. It  should similarly collect the video recordings of oral submissions to select  committees on bills and place these in the Video tab for each bill.

Recommendation 5 Parliament should stop using Facebook to stream and record video of select  committee sessions and find another provider or procure its own video  streaming and recording functionality.

Publication of committee agenda  

29. While many items of information regarding a bill are published on one webpage, the agenda and scheduled dates and times for each oral submission  to a committee on a bill are not published on this webpage. There is not even a  link under any of the tabs on that page to the page for the relevant select  committee, even though the name of the committee appears, it is not a  hyperlink that people can click and follow to the committee’s webpage.  Instead, people have to navigate to the committee’s own webpage (where,  incidentally, they have to go to find the video recordings of oral submissions). 

30. When they find the right committee, they click through to that page. They might  hope that the green button marked ‘Schedule of meetings’ will provide them  with a list of the committee meeting dates and a link to the agenda for that day.  They will be disappointed. Instead, they will find themselves looking at a  calendar and having to search through it to find days when the committee met,  click on that link and hope that it is the right day. When we checked the  calendar, it was blank for all days in the past, which was not helpful. If a day in  the future when it will be sitting is shown, clicking on that takes the reader to a  page simply listing that it will meet on that day. This is a link which then takes  the reader to yet another page, where they can see all the select committee meetings for that week. But not all the meetings past and future for that  particular committee. Yes, there is search functionality, but it should not be this  hard to find this information. 

31. If, instead of clicking on the ‘Schedule of meetings’ button, they scroll further  down the page to where there are tabs for ‘Business’, ‘Reports’, ‘Submissions  & Advice’ and ‘committee members’, they will find a list of business considered  by the committee. You might think that clicking on the name of the bill you are  interested in will display a list of the dates the committee met to consider the  bill and the witnesses it heard from on each day. You would be disappointed.  Instead, it brings you full circle, back to the page for the bill. 

32. You might be thinking this has been a long-winded description of navigating a  website. You’re right. But it’s nowhere near as long-winded and frustrating as  the experience of people simply wanting to find the list of all the dates the  select committee met to consider a bill, and which submitters appeared before  it on which date. In fact, although we have some experience in navigating  Parliament’s website we could not find such documents. Are people simply  meant to turn up to all select committee sessions on a bill, on the off-chance  that the submitter they are interested in listening to will be appearing that day? 

33. A website should be centred on the needs of users who are interacting with it  for a specific purpose. For select committees and bills, this means improving  the page for each bill, so it lists past and forthcoming meeting dates of the committee on the bill and when each witness is due to make their oral  submission.⁴ 

Recommendation 6  The select committee meeting dates, agenda, and lists of oral submitters  should be published on the web page for each bill.

Publication of Departmental Reports and advice  

34. Later in this submission we address the independence of analysis of  submissions. In this section we want to address when that analysis is  published. While written submissions from the public and organisations are  published once a committee starts hearing oral evidence, departmental reports  and advice to the committee on those submissions are not published until after  the committee publishes its report on the bill. 

35. The effect of this is that the public are not able to scrutinise the department’s  analysis of submissions and advice to the committee until after the committee  stage is completed. 

36. This places the Government at a distinct advantage over other submitters, and  creates the perception that the Legislature wishes to shield the Executive from  scrutiny until it is too late for that scrutiny to have any effect on the  committee’s report on the bill. 

37. It also makes the committee vulnerable to accidentally or deliberately  misleading analysis of the submissions, with the public unable to advise the  committee of any misunderstandings or errors. 

38. The Council has experienced this itself. Significant points we have made in our  written submissions on bills, about amendments that we recommended, were  not mentioned in the department’s report back to the committee. In one  instance we were sufficiently displeased by this to take it up with the  department itself. The response was unsatisfactory and by then, of course, the  moment in the legislative process where our contribution could have an effect  had passed. We can provide the Committee with further detail about this. 

39. Parliament should not be favouring the Government over the public at the  select committee stage. It should be acting in a neutral manner, in ways that  will strengthen public trust and confidence in its role within our democracy. As  such, its processes should ensure departmental analysis and claims can be  scrutinised and responded to before concluding its work on a bill and reporting  it back to the House. 

Recommendation 7  Select committees should publish departmental reports (with their analysis of  submissions and comments on suggested amendments) as soon as reasonably  practicable, and in any case 3 weeks before the select committee reports a bill  back to the House.

Conduct of select committees 

40. The Council would like to make two brief recommendations about how select  committees conduct themselves that we believe would benefit the House as  well as submitters. 

Closing dates for written submissions 

41. Often select committees, when publishing calls for submissions, set a closing  date for receipt of submissions that is at 11:59 pm on a particular evening.  Sometimes – as with this committee’s call for submissions – it will be 11:59 pm  on a Friday night. 

42. Since it is highly unlikely that committee officials will be burning the midnight  oil to log submissions at midnight, particularly at the start or end of a weekend,  the Council suggests there is a change to this practice. 

43. The closing time for sending in submissions should be at 8 am on a Monday to  Thursday weekday. There is no point having a closing time just before a  weekend, when those writing their submission in their own time may only be  able to do so at a weekend. Realistically, a select committee is not going to  refuse to accept a submission received on a Monday morning, after a midnight  cut-off point the previous Friday, so it should provide submitters with that more  realistic deadline. 

Recommendation 8  Select committees should publish closing times and dates for receipt of  submissions that are at 8 am on Mondays-Thursdays, so as to enable people to  spend the prior weekend or evening to finalise their submission.

Allotted oral submission duration 

44. The apparent general rule for duration of oral submissions to select  committees examining bills is 5 minutes for an individual, and 10 minutes for  an organisation. 

45. The Council benefits from submitting as an organisation, but in our experience  of witnessing other submitters appearing before or after our submissions,  committees often do themselves and the House as a whole a disservice by  rigidly sticking to the 5 minute allotment for individuals. 

46. Most recently, the Council was shocked to see that the Governance and  Administration Select Committee only gave Len Cook five minutes to speak to  his submission on the Data and Statistics Bill. Mr Cook has not only been New Zealand’s Government Statistician, but also the United Kingdom’s National  Statistician. He was uniquely qualified to provide useful testimony to the  committee, and there was clearly a strong case for the chair of the committee  to exercise some discretion and accord Mr Cook either the same amount of  time to speak to the committee as organisations receive, or even longer. The  committee chair even remarked on wanting to hear more from Mr Cook, but  did not exercise the power he probably had as chair to extend the duration of  Mr Cook’s speaking time. 

47. There may already be some flexibility in the rules for select committee chairs to  do this. But to make it more likely to happen, we would like to see the rules  make committee chairs discuss in advance with the clerk the timetable for  forthcoming oral submission sessions of the committee, and explicitly invite  them to consider amending the schedule where it is clear that the submitter  has sufficient expertise to provide additional value to the committee’s  consideration of the matter. The clerk should be able to provide guidance to  the chair on this matter having scrutinised the written submissions. 

Recommendation 9  Select committee chairs should be required, when discussing the scheduling of  witnesses, to consider allotting a longer speaking slot to individuals when that  person has expertise relevant to the committee’s business.

Independent Analysis of Submissions on Bills 

48. The Council has serious concerns about the current practice of select  committees relying on advisors in government departments to provide analysis  of submissions on bills. 

49. The legislature’s function is to scrutinise government proposals and test both  the claims made in support of them by Government and any arguments against  them. Select committees are the crux of this process, as it is where the values  and policy intent behind the legislation are questioned in greatest detail, and  whether the drafting of the clauses actually implements the policy intent. 

50. The select committee stage is the point at which the public, civil society,  industry lobby groups, and academics are formally invited to provide comment  and suggestions based on their scrutiny of the legislation. It is the apex of  public participation in the making of laws, and its existence has been cited by  Ombudsmen when investigating Official Information Act complaints as the  reason why the public interest in achieving the participative purpose of that law  may not favour disclosure of information earlier in the policy process. Naively,  the Ombudsmen seem to overestimate the likelihood of even the most  persuasive and evidence-based argument leading to amendment of a bill when  the government has already reached this stage of the policy development and  law making process and the consequences of accepting the argument. 

51. This makes the question of who analyses those non-government submissions  on a bill crucial for the health of our democracy and the credibility of  Parliament’s claim to independent scrutiny.

52. While Chapter 21 of McGee – Parliamentary Practice in New Zealand makes  clear that select committees can appoint independent advisors and can draw  on research and advice from the Parliamentary Library, it also states:⁵ 

The principal source of advice available to committees considering  Government bills is the officials of the department of the Minister in  charge of the bill.  

53. The Council supports departmental officials attending select committees and  providing advice to Members on the bill. Ministers rely on officials to keep them  in touch with the issues the committee is considering, and this is a key way in  which public servants support the elected Government in achieving its  legislative programme. Similarly, Members need informed advice on the  intention of provisions in the bill, and the public servants working in the  sponsoring department’s bill team are best placed to provide that advice. As  McGee puts it, 

Departmental officials provide information to the committee about  the legislation and how it is intended to be implemented. They comment on evidence as it is received, if asked to 

54. However, McGee also says that, 

Although they are advisers to the committee, their primary duty as  public servants is to their respective Ministers, and it is always for Ministers to decide whether to make officials available as advisers,  and which officials. Officials acting as advisers to committees on bills are regarded as  doing so in support of ministerial accountability to Parliament, and  are ultimately subject to ministerial direction. 

55. Where it becomes far more problematic is that, 

after all the evidence has been heard [departmental officials] invariably produce a report for the committee summarising the submissions and making their recommendations (with their Minister’s  endorsement) for amendments to the bill. 

56. Everyone should be concerned about the strong and inherent conflict of  interest between public servants’ loyally serving their Ministers and also trying  to serve the independence of Parliament through provision of impartial analysis  of submissions to MPs. In the Council’s experience, the report from  departmental officials summarising submissions is the only report the  committee receives. This gives officials enormous influence over the  committee’s own report back to the House. 

57. The public are meant to be reassured by this statement in McGee: 

Although their primary duty is to their Ministers, they are officials of  the committees that they are servicing. As well as observing the general confidentiality obligations applying  to all committee proceedings not held in public, they have obligations to act responsibly and in good faith towards the committee. For example, it is expected that all relevant matters raised in public submissions will be noted by officials in their report,  even if these submissions are not in agreement with the Government’s policy. They are expected to provide complete and  accurate information to the committee, making it clear when they are  unable to do so, for example, because of a ministerial direction. Failure to be open with the committee in this way is an abuse of their  position as advisers to the committee. 

58. In the Council’s experience of making submissions on bills, the expectation  that ‘all relevant matters raised in public submissions will be noted by officials  in their report, even if these submissions are not in agreement with the  Government’s policy’, and the expectation that officials will ‘provide complete  and accurate information to the committee’ is wholly unrealistic. It belongs to a bygone era and school of thought that believes ‘gentlemen will honourably  abide by the rules of amateur cricket’. But we are in the professional sporting  era, and this is not how political power operates in any country around the  world. Public servants, who are subject to ministerial direction, who owe their  primary duty to their Ministers, who are paid by the Executive, and whose  managers’ performance assessments depend on getting the legislation  through Parliament, cannot provide independent advice to Parliament. 

59. Section 11 of the Public Service Act 2020, which sets out the purpose of the  public service, states clearly that it 

enables both the current Government and successive governments  to develop and implement their policies 

It says nothing about serving the legislature, because that is not our country’s  constitutional arrangement. 

60. Aside from the theoretical issues about integrity of our law making process,  there are practical reasons why MPs should not rely upon public servants  giving them unbiased advice on whether amendments recommended by  submitters should be accepted and made to a bill. 

61. By the time a bill has reached a select committee it will, in most cases, represent the culmination of years of policy development work by officials and  ministers. Compromises will have been negotiated with industry interests, as  well as with support parties in government and those with confidence and  supply agreements. To accept an amendment will not only mean the relevant  minister will have to go back to Cabinet to explain and justify the proposed  change, but quite possibly also to those other parties and interests. Quite aside 

from any ideological position, faith in the managerialist approach of the public  service, or desire not to enable an Opposition to promote lines about back tracking or retreat, accepting amendments means a lot of work for officials,  under tight deadlines. In doing the work needed to get a bill introduced,  officials will have developed a belief in the correctness of their analysis of the  problems and their proposals, so on a very human level they are  disincentivised from agreeing to changes to something they have already  worked long and hard on. 

62. As we noted above, we have direct experience of departments’ reports to MPs  on submissions omitting to deal with amendments we have recommended.  These reports have not achieved the standard McGee sets of providing ‘complete and accurate information to the committee’, and ‘making it clear  when they are unable to do so, for example, because of a ministerial direction’. This is defined by McGee as ‘an abuse of their position as advisers to the  committee.’ When these failures relate to the rights and liberties of New  Zealanders, this is a significant problem, of the kind that eventually can lead to  the third branch of the state, the courts, declaring laws to be inconsistent with  the Bill of Rights Act. In the meantime, people’s freedoms and dignity are likely  to have been harmed, and recompense or restitution may be impossible. 

63. In the absence of any kind of deliberative inquiry in to our constitutional  arrangements and parliamentary system, such as a citizens’ assembly like the  one held in Scotland between 2019 and early 2021,⁶ this review of Parliament’s  Standing Orders is a key opportunity for people to raise concerns such as  these. 

64. Successive governments of New Zealand have, for too long, underfunded the  legislature. They have done so not merely to reduce the level of taxation, but  because it is in the interest of the executive not to have a legislature with the  capability to adequately scrutinise it, nor independently and expertly examine  the detail of its legislative proposals. MPs have too few resources and too little  support to adequately scrutinise legislation, particularly if they are members of  a smaller party. There are real concerns that legislation is enacted without  many MPs understanding what they are voting on. The Council notes the  quality and quantity of Briefing Notes on Bills produced by the House of  Commons Library in the UK, and understands they are relied upon by many  MPs there.⁷ High quality legislation depends not only on well-resourced policy  development and drafting within government, but on sufficiently well supported MPs to scrutinise and improve legislation during its passage through the  House. 

65. It is long overdue for our legislature to be strengthened by addressing these problems, and while the Standing Orders Review cannot address all of them, it  can make a start by tackling the conflict of interest in relying on departmental  officials to provide independent advice to the legislature. 

66. Departmental officials may be experts in their area of public policy, but they  may well not have expertise in, or access to specialist tools for, qualitative  analysis of submissions. They may even be so imbued with particular  philosophical approaches to aspects of public, economic, social, health or  environmental policy that it is asking too much of them to step outside of this  ‘comfort zone’ and recognise that different value systems and approaches  used by submitters may be equally valid. 

67. Our first preference is for the Committee to recommend to the House that a  sufficient number of suitably qualified analysts are recruited to provide  independent research and analysis capabilities to select committees, to assist  not only with analysis of and reporting to committees on submissions, but to  support committees in their inquiries too. 

68. We are aware that committees in some other Commonwealth parliaments, as  well as the US Senate and House of Representatives, receive significant  analytical and research support from advisors who work for the legislature,  either in the Office of the Clerk, or in the parliamentary library, or for the elected  member themselves. 

69. However, the Committee may not wish to make such a recommendation to the  House without itself having more evidence on what exists in other legislatures  around the world. The Council is confident that New Zealand’s Parliamentary  Library can provide a report on the support available to select committees in  different legislatures.

Recommendation 11  The Standing Orders Committee should commission the Parliamentary Library  to provide it with a report on the level and quality of independent analytical and  research capability provided to MPs scrutinising bills and secondary legislation  at the equivalent of New Zealand’s committee stage in the parliaments of  Australia, the United Kingdom, Scotland, Wales, Northern Ireland, Ireland,  Canada, Denmark, Sweden, Norway, Germany and France, and on the funding  for each of them. The Committee should publish this report on the  parliamentary website.

Recommendation 12  Based on the report from the Library, the Committee should commission the  Office of the Clerk to prepare costed proposals for providing high quality  independent analytical capability for select committees, along with such other  recommendations as the Clerk may make for improving the independent  scrutiny of legislation. The Committee should publish the Clerk’s report on the  parliamentary website.

Funding to support public participation in committee processes 

70. Ministries are producing increasingly complex bills to address complex societal  issues. There is an obvious power imbalance between the Ministries who  spend years on policy development and the drafting of legislation and MPs  who have small staffs and new bills to get to grips with almost every week. The  result is that few MPs understand the bills going through Parliament. 

71. There is an even greater power imbalance between government and members  of the public or civil society organisations. 

72. The select committee stage is a key opportunity for those outside government  to try and assist MPs with understanding the ramifications of the legislation  they will be voting on. 

73. Preparing a high quality submission to help a committee with its work takes  time and effort. In other countries with high incomes per capita, sufficient  philanthropy may exist to provide adequate funding to non-profit organisations  so they can employ policy analysts to write submissions. In Aotearoa, this is  often not the case, and we have significant structural weaknesses in our non profit sector as a result, which in turn impacts on their ability to provide  Parliament with high quality submissions on the issues being considered by  select committees. Alternatively, non-profit organisations may be so  dependent on government contracts to deliver services that they ‘pull their  punches’ in submissions so as not to antagonise the departments with which  they have contracts.⁸ 

74. This means that the work to assist MPs with scrutinising legislation and with  inquiries is often done by volunteers. The New Zealand Council for Civil  Liberties, for example, has no employees, and all submissions are written by  volunteers who have been elected to serve on its committee. Volunteers can  be highly motivated by the issues a select committee is considering, but  motivation cannot always overcome a lack of time, training and other  resources needed to prepare a submission that meets their aspirations to serve  both their cause and Aotearoa’s Members of Parliament. 

75. If we want participatory democracy – which the Government has signalled it  does through by legislating that one of the functions of the public service is to  ‘facilitate active citizenship’ – then we need to invest in making our democracy  more participatory. 

76. Parliament could assist with overcoming the structural problems with funding  for our non-profit sector. In doing so it would assist the work of both MPs and  the government. It could create an independent source of funding to provide  support for non-profit groups and individuals wanting to make submissions to  scrutiny of a bill or to an inquiry. This would mean people could afford to take  time off work to do the research, analysis and writing necessary for a useful  submission. The Environmental Legal Assistance Fund, administered by the  Ministry for the Environment is an example the committee may find helpful to  examine. The Ministry’s website says “The fund is for not-for-profit groups  advocating for matters of environmental public interest”, and that it “enables  applicants to participate more effectively and efficiently in matters or issues  affecting the environment or processes regulating the environment.” 

Recommendation 13  The Standing Orders Committee should commission the Parliamentary Library  to provide it with a report on financial support provided to the non-profit sector  in other countries to enable organisations in that sector to participate more  effectively and efficiently in scrutinising legislation and providing advice to MPs.  The Committee should publish this report on the parliamentary website.

Bill of Rights Act vetting reports 

77. Section 7 of the NZ Bill of Rights Act requires the Attorney General to report to  the House of Representatives on any provision of any bill introduced to the  House that appears to be inconsistent with any of the rights and freedoms  contained in the Bill of Rights. 

78. There have been several occasions where Crown Law (which performs the  assessments of bills for the Attorney General) have commented that they have  had to perform their assessment on preliminary drafts of bills, not on the text  that is introduced into the House. This creates obvious risks for the ability of  the public and MPs to rely upon the accuracy of these assessments. 

79. Bills are amended as they pass through various stages, but most notably at the  select committee and committee of the whole house stages. Even if the Bill of  Rights assessment is performed on the text of the bill actually introduced into  the House, amendments made during a bill’s passage may have an impact on  consistency with the rights and freedoms contained in the Bill of Rights. 

80. In light of the recent passage of the NZ Bill of Rights (Declarations of  Inconsistency) Amendment Act, the Council believes Parliament and the public  would benefit from the standing orders being strengthened. These should  provide that a bill may not be referred to a select committee unless by a week  before the date of its first reading the Attorney-General has provided a report to the House on the text of the bill to be debated. If a bill is amended by select  committee, the Attorney-General should report on whether the amendments  affect the initial assessment, and if so how. Similarly, if a bill is amended by the  committee of the whole house, a further report on the impact of these  amendments should be provided by the Attorney-General prior to the bill’s  third reading debate. 

Recommendation 14  The Standing Orders should require that Attorney-General reports on  compliance of a bill with the NZ Bill of Rights Act be tabled at least one week  before the first reading of that bill, and that the report not be accepted by  Parliament unless it is a report on the text of the bill that is to be considered at  first reading.  Recommendation 15  The Standing Orders should further require that where a bill is amended by a  select committee, or by the committee of the whole house, additional reports  from the Attorney-General should be provided to the House on the effect of  those amendments on the bill’s compliance with the NZ Bill of Rights Act at  least one week prior to the subsequent stage of the bill’s proceedings.

Urgency 

81. The committee will be amply aware of the use of urgency to pass legislation at  great speed, often forgoing the select committee stage entirely. 

82. In May 2020 the Government used urgency to introduce and enact legislation  to give itself powers to respond to the COVID-19 pandemic (the COVID-19  Public Health Response Bill). The Council was one of the few organisations  given an opportunity to comment on the ‘exposure draft’ of the Bill the night  before it passed all stages in a single day. We received the draft Bill on the  afternoon of 11 May and were asked to provide our comments to a  government official by 10 am the next morning. One of our volunteers worked  through the night to write our submission on the Bill. 

83. The Bill was 40 clauses and 3 schedules long and had major civil liberties  implications. The Attorney-General told us that the reason for such urgency  was the great cost to the country for every day in lockdown. Clearly a price  could be put on our democratic processes in these circumstances, even when  – as we have described previously – the chronic underfunding of our legislature  is not addressed. 

84. Three weeks later we wrote another submission on the legislation, this time for  the post-legislative scrutiny. We told the committee: 

4. The rush to introduce and enact this legislation was unacceptable, even under the pressures of the time. Earlier drafts  could have been shared for comment amongst a wider range of people. It should not happen again, not least because acting like  this is likely to undermine public trust in government at a time when the government most needs the public to trust it if people are to follow public health advice. 
5. We welcome this post-legislative scrutiny, but note that pushing  the legislation through as fast as the Government did highlights a  lack of resilience in, and commitment to, our country’s democratic procedures. It exemplifies the culture in successive governments that appears to prefer post-event accountability, even though this leads to blame avoidance and risk aversion, rather than more participative and inclusive pre-legislative openness. 

85. The one aspect that we can recall being listened to by the Government  following the overnight consultation in May 2020 was a point also made by the  other submitters who worked through the night – that the lifespan of the  legislation should be significantly curtailed. Such extraordinary powers needed  to seek renewed democratic licence. 

86. This suggests to us that the Standing Orders should be amended to create a  meaningfully significant disincentive to the use of urgency.  

87. Our expectation is that in normal circumstances all bills will have a minimum 40  day period for providing a written submission to a select committee. The  reason for choosing a minimum period of 40 days is that many voluntary or  non-profit organisations will have monthly meetings of their management  committee. Assuming they keep a close eye on the opening of the call for  submissions and promptly hold a meeting of the management committee, that  will give volunteers or staff time to understand the bill, NZ Bill of Rights  compliance report, Regulatory Impact Assessment, Departmental Disclosure  Statement and any Cabinet papers that have been published. And then write a  submission in time for a subsequent meeting of the management committee to  provide feedback or approve the draft. 

88. Obviously, for small organisations considering large and complex bills, 40 days  will be a significant challenge. This is why we have said that 40 days should be  the absolute minimum period for making written submissions. 

89. To create a significant disincentive to the use of urgency, the Council believes  that whenever a bill is passed under urgency, without a select committee  period of 40 days to make submissions, that bill should have a 100 day sunset clause. Immediately upon third reading a 40 day submission period should  open on the bill. This would be followed by the regular select committee  process, committee of the whole, and another third reading between 70 and 99  days after the initial third reading. 

90. An exception to this procedure is perhaps Budget legislation needing to be  enacted to make same-day changes in order to forestall evasion or avoidance.

91. If urgency is used to pass legislation, Standing Orders should also require the  Minister responsible for the urgent bill to report back to the select committee  on how the legislation was used immediately after it was passed. 

Recommendation 16  The Standing Orders should require a minimum period of 40 days for providing  written submissions to a select committee on a bill.  Recommendation 17  If legislation is passed under urgency, without the minimum 40 day period for  making a submission to a select committee on the bill, a sunset clause must be  inserted into the bill prior to its third reading requiring that the legislation expire  no later than100 days after commencement. Immediately upon royal assent a  40 day period for making submissions on the legislation to the select  committee that will consider a re-introduced bill. Third reading of the re introduced bill will take place between 70 and 99 days after the urgently  enacted law has commenced.  Recommendation 18  If legislation is passed under urgency, the responsible Minister must report to  the select committee considering the re-introduced bill how the urgently  enacted law has been used.

Consultation on Exposure Draft Bills 

92. The Standing Orders should encourage Governments to lift the quality of their public engagement on its policy and legislative proposals, as this will result in  improving the quality of legislation introduced to Parliament. 

93. Besides making use of the tool and guidance developed by the Policy Project  in the Department of Prime Minister and Cabinet,⁹ departments should be  consulting more often on ‘exposure draft bills’.¹⁰ There is often a significant  distance travelled in policy terms between what the government proposes in a  consultation document, and what ends up in the bill presented to MPs. Public  consultation on draft legislation provides the opportunity to see how policy  ideas are intended to be achieved in practice, and to scrutinise whether the  proposal is not only internally coherent, but also what the implications may be  for other laws and policies. 

94. The Legislation Design Advisory Committee makes the following points in  response to the question ‘Why would you release an exposure draft Bill?’: 

Consultation on an exposure draft allows you to test drafting at a  relatively early stage. Releasing draft legislation for consultation can  deliver significant value:
▪ It is a means to ensure that legislation accurately captures its  intended policy intent and to test assumptions. This may be especially useful for a Bill that will have a broad or significant  effect, is novel in approach or subject matter, or concerns  policy of a specialist or technical nature. 
▪ It can provide a level of comfort about the quality of the legislation, test its clarity and usability, check for unintended consequences, obtain detailed technical feedback, and check  that it will ‘work’ as intended. 
▪ It can assist with obtaining stakeholder agreement on policy  when agreement is dependent on how the legislation is actually drafted. 
▪ When legislation will be implemented by a non-Crown entity  agency or industry it can provide an opportunity for that agency/industry to verify that the legislation can be operationalised as intended. 
▪ It can be used as a vehicle to support engagement with stakeholders on residual policy matters or other more detailed features of regulatory design (for example, fees, infringements, transitional arrangements and penalties). This is particularly useful when your earlier consultation related to high level regulatory proposals. 
▪ It may provide a more effective and efficient means of consultation when public consultation on the policy has already occurred in another forum (such as a Law Commission report). 
Consultation on an exposure draft may have the additional benefit of  assisting the passage of a Bill through its parliamentary stages. It  provides an opportunity for input and resolution of issues before the  Bill is submitted to Select Committee. 

95. The Council has twice this year felt legislation was so disconnected from the  Government’s desired outcomes that it recommended to the select committee  that the bill be withdrawn entirely for public consultation on a draft bill. In  making these recommendations in relation to both the Data and Statistics Bill  and the Oversight of Oranga Tamariki System and Young People’s  Commission Bill we were not alone.

96. We also note that in 2009-10 the then Government ran into serious difficulties  with its Search and Surveillance Bill. The bill was so widely criticised for  serious deficiencies that the Justice and Electoral Select Committee  significantly redrafted it and sent that re-draft out for public consultation, as  well as holding a further round of public submissions on the proposed  amendments. In reporting the significantly re-drafted bill back to the House,  the Committee’s report said:¹¹ 

When the bill was referred to us, we noted there was considerable disquiet from the public about the powers it would confer on enforcement officers, particularly those working for non-police agencies. We received submissions from a wide range of individuals and organisations… 
The overwhelming message we received was that the bill as introduced did not strike the correct balance between the competing values of law enforcement and human rights and that greater protection of civil liberties was needed.  Therefore, we have significantly redrafted this bill. We were conscious of the need to ensure any areas of contention received thorough analysis, and provided an interim report to the House detailing the proposed changes to the bill. The release of our redrafted bill allowed a second period of public consultation, which we felt was extremely important in canvassing the opinions of not only those who originally submitted on the bill but also the wider public. We took the unusual step of hearing further submissions on the proposed amendments to the bill from some submitters, and many of those who had expressed concern about the bill as introduced expressed satisfaction that their concerns had been listened to and addressed by our amendments. 

97. As the current Government develops new proposals on this topic,¹² we hope  the lessons from this poor process will be recalled by two of the MPs who  served on the select committee, since they are now the Prime Minister and  Attorney-General. 

98. It may be beyond the scope of a review of the Standing Orders to require  public consultation on draft bills, but this does not mean that the House cannot  create incentives for the Government to use this tool, and to provide  opportunities for accountability where it has not been used. 

99. One measure Parliament could adopt is to require the Government to explain,  both on introduction of a bill, and when making initial statements to a select  committee, whether it has consulted the public on an ‘exposure draft’ of the  legislation. 

100. If it has, the Government should present a report which explains what changes  have been made between the exposure draft and the Bill introduced to the  House, and why. If it has not, the Government should provide a written  statement of reasons to the committee why no consultation on an exposure  draft took place. 

Recommendation 19  The Standing Orders should be amended to require the Government (and  those present local or private member’s bills) to present a statement to the  House upon introduction of a bill that explains whether it has consulted the  public on an exposure draft of the legislation. This should be accompanied by  a report to the select committee the bill is referred to, which explains the  changes that have been made between the exposure draft and the bill  introduced to the House, and why those changes were made. If no public  consultation on an exposure draft of the bill, the Government (or other  promoter of the bill) should provide a written statement of reasons to the  committee to explain why no such consultation took place.

101. The Council thanks members of the Committee for their time and consideration  of our submission. 

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¹ As a minor issue, it is unfortunate that none of these can be directly linked to. This makes it  harder to provide people with pointers to find information. Parliament’s web team could  hopefully fix this without too much difficulty. 

² Information about how the Welsh Parliament record of proceedings is produced: https://senedd.wales/senedd-business/about-the-record-of-proceedings/ 

³ Privacy Commissioner: Facebook must comply with NZ Privacy Act, 28 March 2018 :  https://privacy.org.nz/publications/statements-media-releases/privacy-commissioner facebook-must-comply-with-nz-privacy-act/

⁴ We suggest Members explore how the UK House of Commons organises information relating  to a Bill. This link will take you to a page where all the sitting days of the Committee stage of  the Online Safety Bill can be accessed: https://bills.parliament.uk/bills/3137/stages

⁵ Parliamentary Practice in New Zealand, 4th ed, David McGee, eds Mary Harris and David  Wilson. Accessed from: https://www.parliament.nz/en/visit-and-learn/how-parliament works/parliamentary-practice-in-new-zealand/chapter-21-establishment-and-personnel-of select-committees/

⁶ Report of the Citizens’ Assembly of Scotland:  https://citizensassembly.theapsgroup.scot/report/ ; Response of the Scottish Government:  https://www.gov.scot/publications/citizens-assembly-scotland-scottish-government response-doing-politics-differently/ ; Report of the independent evaluation of the Citizens’  Assembly of Scotland: https://www.gov.scot/publications/research-report-citizens-assembly scotland/pages/2/ 

⁷ Research Briefing, House of Commons Library:  https://commonslibrary.parliament.uk/type/research-briefing/
See also the ‘Debate Packs’ produced by the Library for debates on topics other than legislation:  https://commonslibrary.parliament.uk/type/debate-pack/

⁸ The contract state and constrained democracy: the community and voluntary sector under  threat, Sandra Grey and Charles Sedgwick, Policy Quarterly, Vol 9 No 3, 2013.  https://doi.org/10.26686/pq.v9i3.4702

⁹ Community engagement: Tools and resources, The Policy Project, Department for Prime  Minister and Cabinet: https://dpmc.govt.nz/our-programmes/policy-project/policy-methods toolbox/community-engagement#tools 

¹⁰ Exposure draft bills, Legislation Design and Advisory Committee.  http://www.ldac.org.nz/guidelines/supplementary-materials/exposure-draft-bills/

¹¹ Search and Surveillance Bill, As reported from the Justice and Electoral Committee. 45-2, 4  November 2010.  https://www.parliament.nz/en/pb/sc/reports/document/49DBSCH_SCR4903_1/search-and surveillance-bill-45-2 

¹² Review of the Search and Surveillance Act 2012, Ministry of Justice.  https://www.justice.govt.nz/justice-sector-policy/key-initiatives/ssa/