Should it have the numbers to form a government in October, National is expected to take immediate and comprehensive action to fulfil its election promises, including the unwinding of a raft of Labour-introduced legislation and other reforms.
Both National and ACT are strongly opposed to many of Labour’s marque policies, including the Māori Health Authority, fair pay agreements, the Credit Contracts and Consumer Finance Act (CCCFA) changes, the 10-year brightline test, the removal of interest deducibility on investment properties and Three Waters.
The centre-right has promised to reverse, amend or repeal these initiatives and countless others as soon as possible after taking office. Come October, National’s Christopher Luxon, the most likely centre-right prime minister, has vowed to “get things done and deliver for all New Zealanders”. But how quickly could New Zealand’s centre-right bloc move to undo six years of Labour reforms? And could National and ACT enact wholesale legislative change all at once – for example, in some form of omnibus repeal Bill? Or would they need to repeal the “offending” legislation Act-by-Act?
Legal academics caution that quick and efficient law-making does not guarantee clear, accurate and fit-for-purpose laws. “A government could – and governments in the past have – in the very first few days of taking office essentially rushed the core of their legislative programs through the House under urgency in order to basically say they’re delivering on their election promises,” says Otago University law professor Andrew Geddis.
The use of “urgency”, in which Members of Parliament rush through Bills without the typical degree of scrutiny or work beyond Parliament’s regular sitting hours, inevitably raises the question of what has been sacrificed or traded. Speed and efficiency don’t guarantee clear and accurate laws. Geddis says governments want to get political points on the board “to show ‘we are different from the previous government’. Doing so at speed, of course, comes at the cost of the law not being as fully scrutinised as it would otherwise, at the risk of errors being made or problems [arising] that were already known about the law.”
Geddis says the newly-elected government will feel emboldened to reshape the statute books. However, new laws can bind New Zealanders in ways that lawmakers don’t fully anticipate or comprehend at the time. It’s an unavoidable tension, he says. “On the one hand, [MPs] do need to be responsive and show they can act as the public demands. But they also have a kind of custodial role and a long-term responsibility to make sure the law is fit for purpose.”
One legislative tool available to governments in a hurry is the omnibus Bill. Designed to have as wide an impact as possible, these Bills have been described as the “sawn-off shotgun in Parliament’s legislative weapons rack”. Omnibus Bills package together several, similar measures in one piece of legislation. Using them is governed by Standing Orders, which set out what MPs can do when creating law and how and when they can do it.
Standing Order 264 states that Bills must relate to “one subject area only”. The Speaker of the House acts as a legislative gatekeeper, empowered by the rules to check that each introduced Bill is covering only one subject. Should a Bill reach too widely, the Speaker can discharge it or demand amendments. There are, however, explicit exceptions. Standing Order 266 lists the kinds of omnibus Bills that lawmakers can introduce: finance and tax Bills; Bills affecting localities or Māori affairs; land and reserves disposal Bills; and Bills that consist entirely of amendments to Acts.
Four additional exceptions exist: amendments dealing with an interrelated topic, which can be brought under one broad policy; amendments across multiple Acts that are similar in nature; the Business Committee agrees to ignore Standing Order 264; and MPs vote to suspend the rule.
The rationale behind discouraging omnibus Bills relates to MPs’ work. Particularly at the select committee stage, elected representatives probe proposed laws; scrutinise, test, and critique them; hear public submissions on their potential impacts; and determine whether they will do what is intended. But Omnibus Bills, by their jumbled nature, can serve to circumvent closer examination, stifle necessary debate and even leave open the risk of political, personal or malicious motives creeping onto the statute books through additional amendments.
In the early months of the pandemic, Parliament passed the Covid-19 Response (Further Management Measures) Amendment Bill. Its effect? The amendment of 45 different statutes, ranging from the Arms Act 1983 and Companies Act 1993 to Freedom Camping Act 2011 and Waste Minimisation Act 2008.
At the time, a speedy response was deemed essential to get on top of covid-19. And, rather than amending each of the 45 statutes one-by-one, the omnibus nature of the Further Management Measures Bill was the most efficient way of dealing with the numerous impacts of the pandemic and lockdown.
Lawmakers intended the Bill would introduce two tiers of amendments that would help New Zealand “respond to the wide-ranging effects of covid-19” – a signal, at least, the amendments dealt with an interrelated topic, capable of being brought under one broad policy. But for more run-of-the-mill legal issues, an Act-by-Act approach is preferred, Geddis says. “For instance, you can’t use one Bill to reintroduce Three Strikes while at the same time get rid of the Plain Language Act. The Clerk of the House and the Speaker will simply say ‘sorry, it doesn’t comply with standing orders. This legislation just isn’t allowed’.”
‘Mouse with a match’
Geddis says it’s understandable that governments feel the need to rush through law “to show the public they are ‘doing their job’.” Part of living in a parliamentary democracy is that elected representatives will respond, and are answerable, to the voting public.
With an eye on October’s election, Prime Minister Chris Hipkins has delivered the first phase of the government’s planned policy “reprioritisation”, recently announcing the RNZ-TVNZ merger would be scrapped and the controversial income insurance scheme delayed until economic conditions improve. National and ACT had promised to scrap both initiatives, yet the government has beaten them to the punch in order, it says, to focus on the cost-of-living crisis.
Also among National’s explicit targets are Labour’s 39% top income tax rate, Auckland Light Rail, the Three Strikes Repeal Bill, Auckland’s regional fuel tax, the clean car discount and the Plain Language Act. Similarly, ACT opposes policies ranging from the “so-called fair-pay agreements”, Three Waters and the CCCFA changes, to “the assault” on landlords via tax and Residential Tenancies Act changes and “the chaotic” merger of polytechs into Te Pukenga.
“So, it goes on and we’re already sure we’ve missed a few there. Two bad policies dumped, two on the backburner, and two made worse. It doesn’t make up for a dozen bad ones still in play,” ACT said in a recent press release, adding that Hipkins was a “mouse with a match” when it came to abandoning key policies. “Even if the bonfire were real, praising Hipkins’ policy reversals would be like decorating an arsonist for putting out his own fires. Billy Joel claims he didn’t start the fire, Hipkins has no such excuse. He’s been at the centre of Labour for five years.”
Fastest lawmakers in the West
In an article for The Listener in 1977, Sir Geoffrey Palmer described New Zealand’s MPs as the “fastest lawmakers in the West”. Nearly 40 years later, while delivering the 2014 Harkness Henry lecture, Sir Geoffrey said lawmakers had lost that label and in fact, Parliament was “constipated” by the volume of legislation in front of it.
At the time, the legislative backlog had been a feature of Parliament for several years and had become more acute in the MMP era, Sir Geoffrey said. “In sum, big and important Bills containing significant new policies are often rushed because of the three-year term with insufficient efforts to get them right. There is more pressure to get such measures through than to get them right. On the other hand, important but often uncontroversial smaller care and maintenance provisions that often would be very beneficial languish on the order paper, sometimes for years. That is the conundrum that any new legislative process must address.”
Geddis agrees the backlog still exists. “Time in Parliament is a limited resource and so if it’s spent on one thing, it comes at the cost of not being able to spend it on the other,” he says, adding that governments prioritise laws they believe will have a greater public impact or serve as “political trophies” over revisiting less high-profile areas of law.
“Once again, for any government there’s a tension between wanting to be seen to be dealing with the big, bright, shiny public issues while also doing the regular maintenance of the statute book to make sure it doesn’t get outdated.”
Another factor determining the speed of legislative change is the size of a government’s mandate. The current Labour government’s victory in the 2020 general election was historic as it was the first time since MMP was introduced in 1996 that a party had won enough seats to govern alone.
Previous governments in the MMP era have comprised coalition partners or support on matters of confidence and supply. While Labour has enjoyed the advantage and ease of its own majority, a government commanding 51% of MPs – in whatever shape that takes – is still a working majority. University of Auckland law professor Mark Henaghan says: “If you’ve got a majority in Parliament, you’re sovereign, you’re able to make whatever changes you want.”
Majorities can take on different configurations. In 1956, MPs from both sides of the political divide agreed to entrench a handful of legislative provisions – such as the voting age, the length of the parliamentary term and the method of voting – governing how New Zealand’s elections would work. The Electoral Act 1956 (and its current version from 1993) require a vote of three-quarters of MPs (or more than half of voters at a referendum) to change those constitutionally significant provisions.
More recently, and during the quieter committee stages of the law-making process, Green and Labour MPs tried to make it much harder for future parliaments to change or remove entirely protections against privatisation under the government’s controversial Three Waters policy.
Their 60%-majority requirement may have passed but the backlash was instant, centred either on Labour not knowing what had happened or on MPs not fully comprehending what entrenchment is usually used for. Eventually the government announced a U-turn, with then leader of the House, Hipkins, describing the entrenchment clause as “a mistake” and saying it would be fixed as soon as possible.
Henaghan says numerous Acts can be changed with a bare majority of MPs. “Remember, the Labour Party changed the Three Strikes legislation, for example. They never liked that so they changed it. That’s how it works – that’s politics – and if National came back in, they might resurrect the damn thing. “But it’s not a big constitutional issue. It’s parliamentary sovereignty…But there is an Act that is fundamental to our constitutional structure – the Electoral Act – that can’t be changed by one party just by a majority. It’s got to be done by 75%.”
Politicians may talk policy, but legislative draftspeople are tasked with transforming ideas into coherent, workable statutes. Should poor drafting dent how an Act is supposed to work, Henaghan notes the judiciary must step in, interpret the law and resolve the uncertainty that has forced people to litigate.
“What we have is a balance of powers,” he says. “Parliament can change the laws but it’s up to the draftspeople, in the executive, to draft them and then it’s up to the courts to interpret them. And at those other stages, things can come out slightly different from what was intended.” ■