Submission: Review of Standing Orders 2023
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.
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should be the highest quality legislation possible, even if this may sometimes mean recommending that the bill be withdrawn for redrafting or consultation.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.
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.
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 50th 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
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.
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.
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.
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.
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.
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.
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.
The Standing Orders should require a minimum period of 40 days for providing written submissions to a select committee on a bill.
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.
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.
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/