Questions raised and thoughts aired about legislation rushed through parliament under urgency limiting scrutiny of it

There is growing concern about laws being forced through parliament under urgency.

Academics and the New Zealand Law Society say this practice means less scrutiny of lawmaking and brings a greater chance of technical errors getting through to the final version of the law.

Earlier this year, the Law Society condemned the frequent use of urgency, in a submission on a review of Standing Orders, saying it denies legislation "valuable in-depth scrutiny.” 

Current rules allow parliament to go into urgency without prior notice and without debate. They can allow more than one stage of a bill to be passed in one day, and without going before a select committee for detailed analysis.

The National-led Government used urgency in its dying days in 2017. The Labour Government has employed the same process in its last weeks.

The Law Society condemns this practice in simple terms: It gives too much power to politicians over the people. 

“In New Zealand we have a unicameral parliament, so we have quite limited protections in terms of our legislative process,” says Debra Angus, convenor of the Law Society's public law committee .

“We don’t have an upper house to look at laws passed by a lower house and to take time to go through them in great detail.

 “So what we rely on is the select committee process, with public input and enough time for consideration of legislation in a settled manner.”

Angus says there can be a need for urgency when there is a genuine emergency. But many laws are passed under urgency which do not fit that criteria. The consequences can be serious.

“You don’t get experts like lawyers and accountants helping with very technical legislation, you don’t get engagement from the public, and you don’t get good understanding about what is in a piece of legislation.

“And hasty legislation can have mistakes, so you need to go back later to fix them up. 

"It brings parliament into disrepute, it looks disorganised, it can’t manage its own time.  And there is a lack of transparency. If a bill is introduced under urgency, then how does the opposition respond and how do other parties make a meaningful contribution to the debate?” 

Political leaders, though, do not appear to regard this as a serious problem. 

The Labour leader Chris Hipkins was asked about changes while Parliament was under urgency such as the Resource Management Act and water reforms. He replied that the use of urgency did not imply there was any less debate about what the reforms would really mean.

"All of this legislation was well signaled, (we were) wrapping up legislation that had been working its way through this parliament for some time," Hipkins says.

"If you look at things like resource management reform, water management reform, these are not things that we were dropping on to the parliament at the last minute, this was legislation that had been working its way through quite a significant and considered process."

Hipkins adds putting parliament under urgency during the final passage of the bills was done partly in order to get extra sitting hours for MPs. 

He was also asked about the use of urgency increasing the likelihood of electoral flip flops.   

The rationale is that if Parliament pushes through controversial legislation in its dying days under urgency when it knows the main opposition party is adamantly opposed, then the public are more likely to have to put up with 180 degree about-turns from their politicians. 

"That is the way with democracy, that sometimes new governments change the policies of previous governments," Hipkins replies.

The same issue was put to the National Party leader Christopher Luxon, but he declined to discuss the matter at all - "That is something you will have to ask the (Labour) Government about."

The leader of the Act Party David Seymour, however, denounced the widespread use of urgency unequivocally.

"Rushed law is almost always bad law. There are circumstances where it is worthwhile - I remember one time we had to rush through a law because it turned out the police were unable to enforce speed limits.

"But one thing (Labour) is going to have to do is start being better at law-making in a consultative way."

According to the Law Society, one of the problems is that there is no limit on what sort of laws that can be passed under urgency. 

“For example, the changes made to Auckland governance back in 2008 were passed under urgency," Angus says.  

“The amalgamation of all the councils (into one super council) was a huge change and that was done under urgency.”

On another occasion, the Labour Government passed the so-called traffic light system of health mandates under urgency, and that action was condemned by a Victoria University public law expert, Dean Knight, who told the New Zealand Herald it was a "constitutional disgrace".  

The Law Society, meanwhile, was thinking about this problem earlier this year and came up what it saw as a practical fix in a submission to the Standing Orders Committee.  

One of its proposals would allow Parliament to perform a post mortem on laws after they have been passed, if they turn out to be problematic later on.

It said there could be a series of “trigger points” for this sort of retrospective scrutiny of legislation.

These trigger points could include any legislation that was passed under urgency in the first place. Another trigger point could be representations made to parliament about a law via a petition. Another could be any reference to difficulties in a law made by a judge during a court case. 

An alternative method would require a select committee to automatically analyse any law passed under urgency within a set time frame after the original passage of the law. 

However, this idea was turned down by the Standing Orders committee in its most recent report, which came out right at the end of the latest parliamentary sitting.

The use of urgency came under scutiny by three legal authorities, Elizabeth McLeay, Claudia Geiringer and Polly Higbee in a 2011 publication, "What's the Hurry?  Urgency in the New Zealand legislative process 1987 to 2010."  After that came out, some small changes were made. However, an article published in 2020 suggests many problems persist with laws passed under urgency.   

It was written by a then Auckland law student, Alexander Campbell, for the lobby group, Equal Justice For All.  He noted urgency was sometimes done for legitimate reasons, such as genuine emergencies or to free up the Order Paper. But it was also done for tactical political reasons, such as governments wanting to meet 100-day pledges for law reform made before an election.  

Campbell notes other jurisdictions have dealt with this problem. For example, the Scottish Parliament would allow only emergency bills to be expedited by skipping stages or removing stand down periods. He adds Germany and Denmark require a 66% vote to approve urgency. 

But fixing the problem in New Zealand is easier said than done, according to Campbell. One reason is that the New Zealand parliament has too much work on its hands.  

"Urgency is not quite as clear cut as it is often presented," he writes. 

"The muddled and broad nature of the powers it gives makes constraints on its use complicated. Its high level of use reflects the tension between democratic scrutiny and legislative efficiency. The current system clearly does not provide sufficient checks on the use of urgency’s more extreme powers, but the clogged Order Paper suggests the current system does not provide sufficient legislative capacity."