NZ Council for Civil Liberties

Submission: Term of Parliament (Enabling 4-year Term) Legislation Amendment Bill

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.

Summary

  1. The Council opposes this bill as successive governments and parliaments have not earned the privilege of being trusted by the public with longer terms. Far more democratic safeguards and institutional strengthening need to be put in place and bedded-in before the public can trust a government with a four-year term.
  1. The proposal set out in the bill is fatally flawed. It results from shoddy and secretive policy development. It might lead to a four-year term, but it might not. This uncertainty is constitutionally careless, unacceptable and dangerous.
  1. The bill’s proponents claim that ensuring the opposition parties have a majority of members on select committees will be a safeguard. In fact it will provide no check on Executive power at all. It is a chimera of improved scrutiny and accountability that will provide no substantive safeguards against one of the most unconstrained Executives in the democratic world.
  1. Entrenchment of the proposed arrangements would multiply the uncertainty caused by them, as it is far from certain that a 75% majority could be found to resolve the issues likely to arise in the post-election negotiations concerning select committee apportionments.
    1. Reforming the constitutional arrangements of a country requires far more than the abysmal policy process seen here. To have legitimacy, such changes require high levels of public participation and deliberation in developing the policy proposals prior to drafting legislation and conducting a referendum.
    1. This dangerous bill is the proposal of a party that received less than nine per cent of voters’ support at the last general election, and there is no serious political mandate for altering our constitutional arrangements in this way. The Council notes that neither the National Party or the New Zealand First Party coalition agreements commit them to support this bill beyond select committee. They should not do so. Neither the Labour, Green or Māori Parties can seriously consider that this bill, or the way it has been developed, deserve any support or tacit endorsement.
    1. At a time of dangers to democracy around the world, which have been ascribed, amongst other reasons, to people feeling like they lack political voice in a narrow technocratic system, it would be foolhardy for MPs to allow this bill to proceed.

    Reasons for a four-year term

    1. There are good reasons for Aotearoa to move to a four year term for the House of Representatives. In summary, the Council believes they include:
    • A longer term should mean less of rush to get through the government’s legislative programme, which would:
      • Provide more time for departmental officials to consult the public, and run better and deeper forms of public participation in policy and legislative development, including more consultation on draft bills. This would improve the quality of policies and laws; and
      • Provide more time for ministers and Cabinet to consider that advice, which should lead to better quality decision-making; and
      • Provide more time to Parliamentary Counsel to draft legislation; and
      • Help ensure Crown Law’s vetting of legislation against the NZ Bill of Rights is not on preliminary drafts of legislation; and
      • Provide more time for parliamentary scrutiny of legislation
    • Remove the reasons for any use of ‘urgency’ procedures to push legislation through the House fast and with poor scrutiny and deliberation, except where there are genuine emergencies that require new powers (e.g. pandemic response, or the example we have just seen in the UK of Parliament meeting on a Saturday to respond to potential closure of the last steel-making blast-furnaces in the country).
    1. Members of the Justice Committee will note that these reasons are about improving the quality of government through greater use of public participation and deliberation at all stages of policy and legislative development. However, it is important to note the ‘should’ in the list above: there are no measures in the bill in relation to these issues and there is no guarantee that it will lead to any of those activities and outcomes. The bill would therefore give politicians more time to run flawed processes, and we have seen no recognition from the Government parties or the Labour Party that these must be addressed in order to earn the public’s trust.
    1. The Council believes that before seeking more power and less electoral accountability through this bill, successive governments need to demonstrate in practice and in legislation that they are committed to giving up, and dispersing more broadly, political power – particularly by enabling more and deeper public participation. Such democratic changes need time to bed-in to become constitutional norms. This is likely to require at least a decade, and probably more. To provide just one example of our democratic weakness, the fact that there is not an all-of-government standard for running public consultation exercises, when the United Kingdom has had a code of practice on this issue for more than 30 years, demonstrates how far away we are from the Executive earning the privilege of a longer period between elections.

    Debunking specious claims for a four-year term

    1. Members should also note that the reasons listed above do not include ‘enabling long-term planning’ as this can happen with three-year terms if there is sufficient political will and ministerial and official quality.
    1. The stability and endurance of policy settings is another argument made for longer terms that does not stand up to scrutiny. This is more a matter of political consensus and shared values, and investors and business owners – like the public – have no choice in a democracy but to factor in the uncertainty of governments with different political values changing things according to the support they receive.
    1. We have seen claims advanced that the current three-year term means that the first year of a government involves ministers getting established in their roles, the second year is when they govern effectively, and the third year is disrupted by election campaigning. We do not accept these claims. Not only are all political parties campaigning for the next election all the time, but being effective in the first year is dependent on the quality of pre-election preparation. The track-record of legislative and policy change in the first year of many governments belies this idea of unproductive ‘settling in’. Furthermore, one-term governments are rare in New Zealand. In practice governments are normally in office for six or nine years at a time.

    Failure to follow good processes for constitutional reform

    1. Constitutional reform should, above all other kinds of law-making, be developed with the maximum amount of public input. The word ‘democracy’ comes from the Greek ‘demos’ (people) and ‘kratos’ (rule, or power). It is a system where the public have the power – in theory – and lend it to others for a temporary period.
    1. It follows that when considering how to amend a country’s system of democracy, particularly when it would effectively reduce the public’s power through fewer opportunities for changing who is in government, the public should be involved in the discussion from the start. Their views, values and ideas should be sought. Deliberation and discussion amongst them should be facilitated by those already entrusted with the people’s power to administer the state.
    1. Nothing like this has occurred here. Nor with the Parliament Bill, another key piece of constitutional reform developed in secret by those who would claim to be acting on the public’s behalf. Instead, a bill proposed by a minor political party has been lifted up as a result of coalition formation agreements. In spite of being in office for more than a year, no steps were taken by the Government to involve the public in the design of these proposals, or consult them on options.
    1. Such secrecy and failure to involve the public is not simply a matter of the Council’s views. Paragraph 22 of the Regulatory Impact Statement (RIS) notes:1Regulatory Impact Statement: Enabling a four-year term of Parliament. Ministry of Justice, 25 September 2024. https://www.justice.govt.nz/assets/Documents/Publications/RIS-Enabling-a-four-year-term-of-Parliament_FINAL.pdf

    The [2013] Constitutional Advisory Panel’s report noted a reasonable proportion of the people who commented on this topic supported a longer term and recommended that the Government set up a process, with wider public consultation and participation, to explore what additional checks and balances might be desirable if a longer term is implemented.2New Zealand’s Constitution: A report on a Conversation: He Kōtuinga Kōrero mō Te Kaupapa Ture o Aotearoa (Constitutional Advisory Panel Report), November 2013 at 61. The report can be accessed at: https://www.ourconstitution.org.nz/the-report/

      Failure to honour Te Tiriti o Waitangi

      1. The poor process for developing this bill is compounded by the Government’s failure to honour its Tiriti obligations.
      1. The RIS also notes (page 4) that the policy work for the bill drew on the 2023 Independent Electoral Review (IER), but says that:

      However that review covered an extensive range of electoral matters, and did not include in-depth engagement specifically on the term of Parliament, nor with Māori as Tiriti/Treaty partners, so we have limited views from Māori stakeholders.

      1. Officials further note on page 15 of the RIS that “The IER panel indicated that engaging Māori as Tiriti/Treaty partners is especially pertinent given the constitutional impact of changing the term of Parliament”.
      1. On page 16 of the RIS, the Ministry of Justice officials note their view of Te Tiriti of Waitangi ‘considerations’. It is worth quoting this extensively given the Government’s failures in this regard:
      1. Regular elections provide an important opportunity for voters including Māori to hold the government to account. Having a limit on the length of the parliamentary term provide a democratic check on the Crown’s exercise of kāwanatanga under Article 1 of te Tiriti/the Treaty. This in turn supports the right of Māori to participate in elections as guaranteed by Article 3, as full citizenship rights include those of political participation and representation.
      2. The relevant Principles and Articles of te Tiriti/the Treaty are:
        • Partnership: To exercise kāwanatanga responsibly and to protect Māori rights, the Crown’s decision making on matters affecting Māori should be informed by an assessment of Māori interests and te Tiriti/the Treaty.
        • Active protection: In its decision in Wai 413, the Tribunal found that the Crown is under a Tiriti/Treaty obligation to actively protect Māori citizenship rights and rights to political representation conferred under the Electoral Act 1993. Participation in elections is a right guaranteed by Article 3 which granted full citizenship rights, including those of political representation.
        • Equity: The Waitangi Tribunal has said that as part of the rights of citizenship actively protected by the Crown, Māori must have equal rights of participation with other Māori and non-Māori citizens during democratic election processes.
      3. Given this, consultation with Māori as Tiriti/Treaty partners on a potential change to the term of Parliament is important as part of the policy and legislative development, where possible, and as part of any referendum information campaign.”
      1. In light of the Government’s failure to consult and involve the public during development of the legislation, the Crown’s “assessment of Māori interests” has clearly failed to involve seeking the views of iwi and hapū. The Crown has not respected its obligations under the Partnership principle of Te Tiriti.
      1. The Crown must, of course, involve Māori during a referendum information campaign if the bill is passed. However, this in no way assists the Crown in meeting its obligations under the Partnership principle of Te Tiriti to consult Māori. Informing and consulting are distinct activities.

      Centralised and exclusionary processes

      1. Instead of the wide public consultation and participation recommended by the Constitutional Advisory Panel, the Independent Electoral Review, and basic democratic expectations of the public, we have this (traditional) farce of claiming that the ability to make submissions on a bill is the public’s opportunity to participate.
      1. Given how late in the policy and legislative development stages select committee submissions are received, Members from all parties will recognise how poor a substitute it is for inclusion in development and consideration of the policy options. It’s like saying to the public that they can have a say on what kind of house they want to live in after the architects have drawn up the plans, the building and planning consents have been applied for, and the contractors hired. The idea that the public will be listened to when they say ‘No, go back to the drawing board, we don’t like how you’ve designed this’, is risible in the face of strong political and administrative self-interest to avoid such work. Unlike the housing market, we have no alternative, more open, supplier of our constitutional arrangements.
      1. The government has just announced a public consultation on reforms to the country’s over-arching emergency management legislation.3Consultation open on changes to Emergency Management Legislation, New Zealand Government, 15 April 2025. https://www.scoop.co.nz/stories/PA2504/S00133/consultation-open-on-changes-to-emergency-management-legislation.htm If the government can take the time to consult on changes such as this, why could it not publish for consultation its proposals for changes to the electoral term before introducing this bill? Are changes to constitutional laws of less significance than other laws?
      1. It is clear from the Regulatory Impact Statement that although the Coalition Agreements were to progress work on a four-year term, officials were directed to only seriously consider the option presented, a muddle of variable 3-or-4 year terms depending on political agreement about select committee allocations. Why should the public entrust the duration of a parliament to a deeply obscure bit of backroom dealing over select committee allocations?
      1. This bill is a product of a highly centralised political system, where the tiny number of people who have (or have had) political and administrative power inside the Executive bubble think that not only do they know best, but that the country’s future wellbeing and progress will be served by it remaining that way. Aotearoa’s declining civil liberties, privacy, social cohesion, media, environment, public health, education, local government and civil service would beg to differ.

      Ignoring Aotearoa’s own progress on participation

      1. The Danks Committee’s 1980 report that led to the passage of the Official Information Act should be read by MPs.4Towards Open Government, Committee on Official Information, 1980. Accessible from: https://www.ombudsman.parliament.nz/resources/towards-open-government-danks-report In the second paragraph it states that “there is a growing recognition by the Government itself of the need to take the public into its confidence, especially when making decisions that affect large numbers of people.” Hardly what has happened with the development of this bill, 45 years later. And this is in spite of the statutory duty on the Chief Executive of the Ministry of Justice to “foster a culture of open government”.5Public Service Act 2020, section 12(1)(d)
      1. The Danks Committee was very firm that public participation in New Zealand’s public policy and law making was a key aspect of why the law was needed as a response to an over-centralised and dominant Executive. So convinced were they, and MPs of the time, that the purposes clause of the OIA says that the Act is:

      “to enable [the people of New Zealand’s] more effective participation in the making and administration of laws and policies”

      1. The clause concludes by saying this is needed to “enhance respect for the law and to promote the good government of New Zealand”.
      1. As noted above, there are valid reasons for moving to a four-year term. However, this bill and the process behind it are the antithesis of how it should be done. Good outcomes result from good processes, and in the case of reforms to our democracy, this requires maximising public participation early in the conversation, and understanding that granting the Executive a longer term requires it giving up other power first.

      Some of the reforms needed before a move to four-year terms

      1. The Council has made extensive submissions in the past on how Parliament must be strengthened before we consider granting the Executive a longer period between elections.
      1. Our 2022 submission to the Independent Electoral Review is cited in paragraph 73 of the bill’s RIS. In this submission we said that prior to any referendum on a four-year term, there should be a Citizens Assembly that had deliberated on the issues.6Submission to the Independent Electoral Review, New Zealand Council for Civil Liberties, November 2022. https://nzccl.org.nz/submission-independent-electoral-review/ The policy option put to the public should be developed by the public, although informed by expert witnesses, as is standard for citizens assemblies around the world.
      1. The Council’s submission to the IER was informed by the submission it made the same month to the Review of Standing Orders.7Submission to the Review of Standing Orders 2023, New Zealand Council for Civil Liberties, November 2022. https://nzccl.org.nz/submission-review-of-standing-orders-2023/
      1. The Council’s recommendations to the IER and Standing Orders review included:
        • Significantly increasing the number of MPs
        • Significantly strengthening select committees by:
          • Using the soon-to-be independence of Parliamentary funding arrangements to ensure the Office of the Clerk employs officials to analyse submissions and provide advice on them;
          • Creating and publishing Hansard of all oral testimony to select committees. Not just for inquiries or annual reviews, but for scrutiny of bills too;
          • Ensuring all written submissions on bills are published at least 48 hours (and preferably 5 working days) before oral submissions to the select committee begin;
          • Compensating for the comparative lack of funding for civil society in Aotearoa by creating an independent source of funding for non-profit groups and individuals who want to make submissions to scrutiny of a bill or to an inquiry; and
          • Ensuring that closing dates for written submissions are never on a Friday afternoon/evening, unless committee staff are being paid to process them over the weekend;
        • Not permitting bills to receive their first reading and transmission to a select committee unless the Bill of Rights Act vetting report on the final version of a bill has been published for a week in advance of the first reading debate, and that where a bill is amended by select committee or committee of the whole House, an additional report on Bill of Rights Act compliance is tabled at least one week prior to the subsequent stage of the bill’s progress;
        • Restricting the use of urgency to genuine emergencies, and requiring that any legislation passed under urgency has both a sunset clause that takes effect within 100 days, and must be referred to a select committee for post-enactment scrutiny within one calendar month; and
        • Making much more extensive use of public consultation on ‘exposure drafts’ of bills and requiring the sponsoring minister (or private member) to present a statement to the House on introduction explaining whether consultation on an exposure draft has taken place prior to introduction, or a statement of reasons why this has not occurred.

      Increasing the number of MPs

      1. The question of how many MPs we should have will keep coming up until it is addressed. It was raised by the Council and former Prime Minister Sir Geoffrey Palmer in submissions to the Standing Orders review in 2022. It was raised again in submissions this year on the Parliament Bill.
      1. In relation to increasing the number of MPs, the Council draws the Committee’s attention to the situation in Ireland. That country has roughly the same population as Aotearoa, and yet it has an upper house with 60 members and 174 members of its lower house. Ireland’s constitution requires its Electoral Commission to ensure the ratio of MPs in the lower house to the public is between 1:20,000 – 30,000.82023 Constituency Review Papers Published, The Electoral Commission, 25 February 2025. https://www.electoralcommission.ie/uncategorised/2023-constituency-review-papers-published/ The Commission decided on an average of 1:29,593.
      1. When MMP was introduced as our electoral system in 1996, the population of Aotearoa was 3.7 million people and the House of Representatives was made up of 120 MPs, providing a ratio of 1:31,213. This is already above the Irish constitution’s upper limit. In September 2023, the population was 5.2 million people and the number of MPs in the House was 122, giving a ratio of 1:43,305. This is almost fifty percent more than the upper boundary of what Ireland’s constitution permits.
      1. If our House of Representatives were to meet the Irish ratio for representation, we would now have 181 MPs.9New Zealand’s population in December 2024 was 5,356,700. Source: Stats NZ population statistics. https://www.stats.govt.nz/topics/population/ (5,356,700 divided by 29,593 = 181) That is 59 more Members – and 66 per cent more MPs who are not members of the Government – amongst whom to divide up the work of scrutiny, inquiry, and accountability. To put it into perspective, with 84 sitting days and 10 ‘scrutiny days’ in 2024, and an under-estimate of MPs working an 8 hour day, this would have been an extra 44,368 person hours of non-Government members on sitting days alone. MPs of course work far more than an 8 hour day and are working on most non-sitting days too.
      1. The Council notes that a House of Representatives with 181 MPs is similar to the number of MPs recommended by Sir Geoffrey Palmer in his January 2025 article, Protecting our democracy by reforming Parliament.10Protecting our democracy by reforming Parliament, Sir Geoffrey Palmer, Newsroom, 6 January 2025. https://newsroom.co.nz/2025/01/06/protecting-our-democracy-by-reforming-parliament/
      1. Only one political party (the Greens) appears to have published policy calling for an increase in the number of MPs. It seems like other parties are unwilling to have the conversation with the country about how much strengthening our democracy would cost. If other parties do not believe we need more MPs, or are not willing to publicly advocate for more MPs, it seems like cowardice to seek longer terms in government without accepting that higher ratios of representation are part of the quid pro quo. The Council does not believe that parties who lack the courage to advocate for strengthening even normal representative democracy, let alone richer and more diverse types of democracy, should be entrusted with a longer period between elections.
      1. In addition to a substantial increase in the number of MPs in the House of Representatives, the Council believes we need to have a well-structured national deliberative conversation about re-creating an Upper House. The Council is interested in various ideas for how this chamber could be constituted. It could build on the Matike Mai report, or we could build on the ideas of citizen juries and citizen assemblies for both scrutiny and inquiry, with members of the public selected to serve via sortition.

      Further measures for democratic strengthening

      1. Other measures should apply to the Executive. There should be a legislative requirement for government to adopt a mandatory code of practice on public consultation and participation in policy development. This should draw on the experience and practices of other countries, and also the work of the Policy Project in the Department of Prime Minister and Cabinet.
      1. The Official Information Act needs to be updated. The Law Commission recommended in 2012 that it be re-written and consolidated with its local government equivalent. The Council has written and advocated for the OIA’s strengthening on numerous occasions, including to the Ministry of Justice’s 2019 consultation on whether there should be a review of the OIA – which decided there should be, but which was not progressed by the 2017-2023 governments.11The case for a full review of the Official Information Act, NZ Council for Civil Liberties, April 2019. https://nzccl.org.nz/case-full-review-official-information-act/ This built on our detailed proposals in 2018.12A better Official Information Act, NZ Council for Civil Liberties, July 2018. https://nzccl.org.nz/a-better-official-information-act/
      1. Our democracy and government depend on high quality information, records and data management. The Chief Archivist and Government Statistician are appropriate heads of their profession within the public service, but the supervision and enforcement of the Public Records Act is a regulatory function, and principles of good regulation suggest that ensuring compliance needs to be separate from that public service management role. The Council suggests that serious consideration be given to adding the PRA compliance function to an Information Commissioner who would also regulate a revised Official Information Act. Besides this, the Chief Archivist (who has now been relegated to a third-tier manager in the Department of Internal Affairs) needs to be restored to the position of Chief Executive of their own department.
      1. The Council has also recommended to the Independent Electoral Review that the voting age be lowered to sixteen, that all prisoners must have voting rights (as voting is a human right under Article 21(3) of the Universal Declaration of Human Rights), and for New Zealanders overseas to retain their eligibility to vote either indefinitely, or for far longer than the current three years.
      1. Measures to protect the integrity of public policy making need to be enacted, as well as those to make it more open and participatory. Aotearoa has almost no regulation of lobbying or of ‘revolving doors’, where people move from an industry or lobbying role into government and vice-versa. Policies and guidance on managing conflicts of interest are insufficient to address these challenges. We have weak regulation on party funding. There is no legislative underpinning of the proactive publication of ministerial diaries, advice to ministers, and Cabinet papers, and proactive publication is another area where our OIA is now woefully out of date compared to other countries’ freedom of information laws. The Council draws the Committee’s attention to the recently launched joint recommendations of Health Coalition Aotearoa, Transparency International NZ, and the Helen Clark Foundation, entitled Let’s Level the Lobbying Playing Field.13Health Coalition Aotearoa launch campaign demanding fairness in Government decision-making, Health Coalition Aotearoa, 4 April 2025.  https://www.healthcoalition.org.nz/health-coalition-aotearoa-launch-campaign-demanding-fairness-in-government-decision-making/ They are well worth reading if Members are even remotely concerned about threats to democracy, declining trust in politicians and government, and foreign interference in Aotearoa’s governance.
      1. The Council’s view is that these, and other reforms to strengthen the openness, participation and deliberation of our policy and law-making systems must be enacted and embedded for at least three terms of Parliament before any change to the parliamentary term is made. It is more likely to require a longer period, of 15-20 years. The reason for this is that reactionary urges in future governments who are chafing at the loss of power are likely to seek to undo such strengthening. In 2008 we had a government that tried to undo the change to our MMP electoral system after only 12 years. An entire generation of politicians has to become accustomed to new and more democratic ways of doing things for them to become constitutional norms.
      1. A longer period in office is a privilege for governments, and this privilege has to be earned. Far from earning it so far, the Council believes that the conduct of successive governments has shown why they should not be trusted with longer terms in office.

      Why the bill’s proposal for select committees is no safeguard

      1. The bill’s proponents – only the ACT Party – suggest that the transfer of power to the Executive that will occur with less frequent elections can be compensated for by altering the composition of select committee membership. This is in fact no safeguard or constraint on Executive power at all. The bill’s proponents know this. Whether this is why they have proposed it is an exercise for the Committee to consider.
      1. Requiring that opposition parties have a majority of members on select committees is a necessary reform, at least for when they are conducting inquiries, but on its own this is a chimera of improved scrutiny and accountability that will not provide substantive checks on a dominant Executive. The reasons for this are because:
      1. Finally, parties may not be able to agree on the composition of the select committees in a new Parliament at all. What incentive will there be for opposition parties to agree when they know that this will lead to them being in opposition for four years instead of three? This post-election uncertainty over the term of the Parliament is intrinsically undesirable.

        Conclusion

        1. Our highly centralised and technocratic democracy has failed the people of Aotearoa and its continuing failure is putting our democracy at risk. Until there is widespread public recognition of this amongst MPs, and the need for a far more participatory democracy, together with dispersal of political power to people, parliament and local authorities, there is unlikely to be support for longer terms of parliament.
        1. The Council strongly recommends that this bill is not passed. Proponents of a four-year term would be better served by first enacting methods to strengthen the legislature and our democracy by dispersing power more widely, and ensuring these measures are deeply embedded.