NZ Council for Civil Liberties

Submission: Review of Standing Orders 2026

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 founded in 1952 which advocates to promote human rights and maintain civil liberties.
  1. We wish to make an oral submission to the Committee.

Introduction

  1. The Council notes that the Standing Orders Committee has indicated that the following topics are of interest to it:
  • Financial scrutiny—feedback on the package of scrutiny procedures adopted on recommendation of the previous Standing Orders Committee in 2023.
  • Legislative scrutiny—ideas for how the House could enhance the consideration of legislation, particularly in light of the recent substantial increase in the overall number of submissions received on bills.
  • International treaties—views on whether improvements could be made to the House’s oversight of treaty-making and examination of international treaties.
  1. The Council’s submission focuses mostly on the second of these issues —legislative scrutiny — in particular 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.
  1. 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should be the highest quality legislation possible, even if this may sometimes mean recommending that the bill be withdrawn for redrafting or consultation.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.
  1. We also make recommendations about the provision of NZ Bill of Rights Act vetting reports during the legislative process.
  1. The Council also makes a recommendation regarding the use of urgency when enacting legislation, and what disincentives might be created to reduce its use.
  1. 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

  1. 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

  1. 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  

  1. 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.1As 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.
  1. 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
  1. 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.
  1. 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

  1. 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.
  1. 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.
  1. 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

  1. 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.
  1. 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. The Council is confident that advances in software transcription of audio recordings means that production of these additional Hansard records will be far less expensive than it used to be.
  1. We are pleased that following our submission to the 2023 Review of Standing Orders, Parliament finally stopped using Facebook as its video streaming and recording platform. However, the system is still clunky and not user-friendly. We suspect this down to a lack of funding for the project to overhaul Parliament’s website, but since the Council has not been invited to participate in any user testing of a new design, we are in the dark about what may be proposed. We would be happy to speak with the web design team about these issues.
  1. In terms of functional problems, 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.
  1. 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

  1. There are several things to note about this page. First, it is bilingual, and it is long past time for the Hansard of Parliament in Aotearoa New Zealand to present proceedings bilingually.
  1. 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.
  1. 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.
  1. 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: https://www.senedd.tv/Meeting/Archive/b26a8a16-a68f-4689-a1b1-1eb427695a2d?autostart=True


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

  1. The Council is hopeful that Parliament will decide to help itself and the public by significantly improving its website and video platform along these lines now that the Parliament Bill will give it control over its own resourcing.2Information about how the Welsh Parliament record of proceedings is produced: https://senedd.wales/senedd-business/about-the-record-of-proceedings/
  1. 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.

Publication of committee agenda

  1. 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.
  1. Similarly the agenda for other business a select committee is undertaking is not published on the page for that select committee.
  1. 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.3We 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 English Devolution and Community Empowerment Bill can be accessed: https://bills.parliament.uk/bills/4002/stages/

Recommendation 5
The select committee meeting dates, agenda, and lists of oral submitters should be published on the web page for each bill. The pages for each select committee should similarly include this information for all the work of the committee.

Publication of Departmental Reports and advice

  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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 6
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

  1. 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

  1. 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 it will be 11:59 pm on a Friday night.
  1. 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.
  1. 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 7
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.cticable, and in any case 3 weeks before the select committee reports a bill back to the House.

Allotted oral submission duration

  1. 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.
  1. 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.
  1. We know that committee chairs have flexibility to extend speaking time, but they always seem resistant to doing so. We also understand the pressure to keep to time when so many oral submissions are scheduled. But this goes to a separate issue of committees accepting oral submissions that are a waste of its time because they either do not address the substance of the bill properly, or simply want to express opposition or support. A select committee stage is for the detailed consideration of the bill, so committee officials and members should be applying greater judgement when deciding who gets to address a select committee.
  1. If this were done we would also 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 8
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

  1. The Council has serious concerns about the long-standing practice of select committees relying on advisors in government departments to provide analysis of submissions on bills. We raised the issues set out below in our submission to the 2023 Review of Standing Orders, and we are alarmed by the fact that we have seen real world examples of the problems demonstrated since then (see below).
  1. 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. 
  1. 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. 
  1. 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.
  1. 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:4Parliamentary Practice in New Zealand, 4th ed, David McGee, eds Mary Harris and David Wilson. Accessed from: https://www3.parliament.nz/en/visit-and-learn/how-parliament-works/parliamentary-practice-in-new-zealand-2017-by-chapter/chapter-21-establishment-and-personnel-of-select-committees/

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.  

  1. 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 

  1. 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. 

  1. 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. 

  1. 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. 
  1. 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. 

  1. 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.
  1. There have been two significant examples of this in the last three years.
  1. In June 2023, Newsroom reported that the Department of Internal Affairs had acted contrary to the wishes of the Finance and Expenditure Committee when considering the legislation on Three Waters.5Three Waters select committee slates officials usurping democratic process, Newsroom, 8 June 2023. https://newsroom.co.nz/2023/06/08/three-waters-select-committee-slates-intransigent-officials-usurping-democratic-process/ The Committee’s report stated:

We wish to put on record that we did experience some problems during our scrutiny of the bill and the preparation of this report to the House,” the committee reports.

We are concerned there were instances where it appeared that departmental officials, perhaps inadvertently, directed Parliamentary Counsel to make changes to the revision-tracked version of the bill that were either not clearly authorised by us, or ran contrary to recommendations.

  1. Two months later, the New Zealand Herald reported that MBIE had had to apologise to the Foreign Affairs, Defence and Trade Select Committee after engaging in what MP Gerry Brownlee described as “devious” behaviour.6Mass arrivals bill: MBIE chief executive Carolyn Tremain apologises to Parliament Select Committee as staff accused of ‘devious’ conduct, NZ Herald, 3 August 2023. https://www.nzherald.co.nz/nz/politics/mass-arrivals-bill-mbie-chief-executive-carolyn-tremain-apologises-to-parliament-select-committee-as-staff-accused-of-devious-conduct/2PN2DDPKVVHMRIKVZVNYLNUWQE/ The select committee was split and so did not call for a departmental report on its consideration of the bill. MBIE nevertheless prepared a report which the Immigration Minister said would be used to inform any changes he would make to the bill as he proceeds to the second reading. A Green Party member of the select committee commented on the MBIE chief executive’s explanation, saying:

This was not a process error. So I think that with respect, you need to stop characterising it that way. They knew that the committee did not want a report.

  1. 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. 

  1. These clear examples of officials’ conflict of interest — between their primary role of supporting their minister to get the government’s legislation passed, and their conflicting role of providing advice to the legislature on issues raised by submitters — show why Parliament must act to resource itself sufficiently to employ its own advisors and analysts to assist Members and committees.
  1. 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. 
  1. 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. 
  1. 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.
  1. 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. 
  1. 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 2021,7Report 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/ this review of Parliament’s Standing Orders is a key opportunity for people to raise concerns such as these. 
  1. 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.
  1. The imminent passage of the Parliament Bill, finally giving the House control of its own resourcing is the opportunity for Parliament to act to address this conflict of interest and restore public confidence in its independence of governments.
  1. Our first preference is for the Committee to recommend to the House that when the Parliament Bill comes into force, Parliament prepares a budget that will enable 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.
  1. 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.
  1. 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 9
Parliament should employ people with the appropriate knowledge and skills in the Office of the Clerk to analyse and report on submissions on bills and provide similar analytical assistance to select committees for their scrutiny and inquiry activities.

Recommendation 10
If the Standing Orders Review Committee is unwilling to go this far, it 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. 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, and the relevant amount sought in Parliament’s budget for future years.

Additional support for members and the public

  1. 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.8Research 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/ Similarly, the briefings produced by the US Congressional Research Service have provided excellent assistance to members of the US Congress and public (the public lost access to them this year under the current Presidential administration). 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.

Recommendation 11
Parliament should employ additional researchers in the Parliamentary Library, to provide non-partisan, high-quality research and analysis to members, select committees. Any briefings produced for all members should be published in an easy to find location on Parliament’s website.

Use of technology to analyse submissions on bills

  1. The Council does not believe government officials should continue to be used by select committees to analyse public submissions on bills. However, regardless of whether they are, or Parliament employs its own officials, the issue of the technological ‘arms race’ in relation to submissions will remain.
  1. All of the parties currently represented in Parliament, and many civil society organisations, have in recent years mobilised their supporters to send thousands of submissions on bills to select committees. While encouraging people to participate in the democratic process is to be commended, these have also created an enormous mountain of work to “process” the resulting submissions. A number of committees have been overwhelmed with many thousands of written submissions and many submitters wanting to speak to their submissions.
  1. Many of these submitters have not understood that the analysis of submissions is not done by parliamentary officials, but by those working in government departments. Thus, when government departments have reacted to the volume of submissions by themselves relying on LLMs to summarise submissions, the public have accused MPs and parliamentary officials of not reading their submissions. This ‘arms-race’ is unsustainable and is undermining public trust in the legislative process.
  1. At present, the path we are on will see continued use of technology in ways that do not benefit our democracy or build public trust in it. This path will continue to use LLMs or Generative Predictive Text (GPT) tools.
  1. There are numerous reasons to be sceptical, and even hostile, to the LLM and GPT tools currently being peddled as “artificial intelligence”.
  1. The idea that there is “a summary” which can be produced for any event or document is a fallacy. Every person has different interests and priorities. GPTs do not summarise documents. They strip out the non-repeating content and pad their work out with hallucinations. As Brian Merchant points out in Blood in the Machine, Adam Smith’s seminal work, The Wealth of Nations, has entire chapters about community solidarity and loving your neighbours, and mentions the invisible hand of the market once. A GPT summary of The Wealth of Nations would have removed the important content, just as those tools will miss the important content of many submissions.9AI worse than humans in every way at summarising information, government trial finds, Crikey, 3 September 2024. https://www.crikey.com.au/2024/09/03/ai-worse-summarising-information-humans-government-trial/
  1. But it seems likely that they will continue to be used unless changes are made to the way the public can provide their views to select committees.
  1. The function of a select committee scrutiny stage of a bill is to consider the drafting of the legislation in detail, and to make recommendations to the House for improving it.
  1. However, in the continuing absence of genuine public participation earlier in the policy and legislative development process — including consultation on ‘exposure draft’ bills — it seems that many people and organisations see the select committee stage as their sole opportunity for participation. This means that many conceive of it as their moment to demonstrate simple support or opposition to a bill. This is what generates mass submission campaigns, and problems with analysis and volumes of requests to make oral submissions. The process becomes a hybrid of bill improvement and location for protest and petition.
  1. Instead of continuing with the current muddle — which it seems will only get worse with contentious legislation in future — Parliament should be doing its best to ensure policy and legislative development processes provide earlier opportunities for meaningful public participation. There are now numerous democratic technology tools in use both around the world and in Aotearoa that can help with this.
  1. By redesigning the public input process, not only does communication become clearer, it becomes much less costly for everyone involved. Instead of thousands of people spending hours writing essentially the same suggestions for a bill, a couple of people can write down variants of the suggestion and thousands of people can indicate their support for the suggestion. The work being done is dramatically reduced, and the resulting signal much clearer.

Other countries

  1. VTaiwan calls itself a “decentralized open consultation process.” It allows people to comment on issues and solutions, including up and down voting ideas. Its first success was in 2016 when it was used to develop a bill on the sale of alcohol online. The POLIS technology that was used in Taiwan has also been in New Zealand to develop the Te Mana o te Taiao – Aotearoa New Zealand Biodiversity Strategy 2020,10https://www.scoop.co.nz/stories/PO2012/S00004/doc-also-tries-to-restore-e-democracy.htm and for a Ministry of Transport project on how the transport system should be funded in the future.11Koi Tū Centre for Informed Futures & Te Manatū Waka Ministry of Transport. (2023, March 8). How should we fund the transport system in the future? Informed Futures. https://informedfutures.org/how-should-we-fund-the-transport-system-in-the-future/
  1. Latvia’s TAP portal is primarily a system for automating the bureaucratic process of creating new bills. As an end-to-end solution it includes the ability for ordinary people to “follow and participate in the development, coordination and adoption of regulatory acts in real time.”12https://oecd-opsi.org/innovations/tap-portal-development-of-legislation-from-documents-to-data/ Access to TAP portal requires centralised electronic identification, similar to Aotearoa’s RealMe.
  1. In Portugal, Participa.GOV describes itself as “a one-stop-shop platform where citizens can present their proposals and decide through their votes on all relevant initiatives for their lives.”13https://oecd-opsi.org/innovations/participa-gov/ Like TAP portal, Participa.gov requires a centralised all-of-government login.
  1. Canada’s iMATR tool is a bi-directional communication platform between voters and elected officials at every level of government. In addition to commenting and voting on “issues”, iMATR is intended as a mechanism to inform public debate, by providing relevant background information:14https://imatr.org/

Registered individual users, organizations, and governments may contribute or post resources such as articles, images, or videos on the platform. As helpful tools, all resources are designed to quickly cut down the research needed to better understand an issue before users have their say.

  1. There are then, clear alternatives the New Zealand should be exploring that can build public trust in our democratic processes, instead of continuing down the current dysfunctional path.

Recommendation 12
The Standing Orders Committee should commission the Parliamentary Library to provide it with a report on processes and technologies used in other countries to facilitate meaningful public participation in the development and scrutiny of legislation. The Committee should publish this report on the parliamentary website. A select committee of the House should be created to hold an inquiry into these issues, inviting public input and trialling some of the identified technologies for itself in the course of conducting its inquiry.

Funding to support public participation in committee processes

  1. 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.
  1. There is an even greater power imbalance between government and members of the public or civil society organisations. 
  1. 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. 
  1. 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.15The 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
  1. 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. 
  1. If we want a participatory democracy — which is key to avoiding the democratic governance collapse we are witnessing in the United States — then we need to invest in making our democracy more participatory.
  1. 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

  1. 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.
  1. 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.
  1. 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.
  1. 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

  1. The committee will be amply aware of the use of urgency to pass legislation at great speed, often forgoing the select committee stage entirely.
  1. 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.
  1. 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.
  1. Under the current government we have seen even greater use of urgency, and with far less justification than responding to a pandemic.
  1. This suggests to us that the Standing Orders should be amended to make it far harder to put the House into urgency. We are confident that when there are genuinely circumstances requiring the House to consider legislation quickly, it should be possible for the government to secure agreement to this from opposition parties. This means that it should be possible to insert a threshold for MPs supporting a motion to put the House into urgency that is higher than a simple majority, which a government will command (if it is to have confidence and supply). The Council suggests that this threshold should be 70% of members.

Recommendation 16
The Standing Orders should require that any motion to put the House into urgency must have the support of 70% of Members of Parliament.

  1. If the Standing Orders Review Committee is unwilling to protect our democracy in this way, then it should consider other measures to create a meaningfully significant disincentive to the use of urgency.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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 17
The Standing Orders should require a minimum period of 40 days for providing written submissions to a select committee on a bill.

Recommendation 18
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 19
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

  1. 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.
  1. Besides making use of the tool and guidance developed by the Policy Project in the Department of Prime Minister and Cabinet,16Community 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 departments should be consulting more often on ‘exposure draft bills’.17Exposure draft bills, Legislation Design and Advisory Committee. http://www.ldac.org.nz/guidelines/supplementary-materials/exposure-draft-bills/ 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.
  1. 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.

  1. 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:18Search 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

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.

  1. 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.
  1. 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.
  1. 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 20
The Standing Orders should be amended to require the Government (and those presenting local or 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.

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