NZ’s habit of big, bad law

New Zealand passes too much law, too quickly, and the Government has too much control of Parliament, argue Geoffrey Palmer and Andrew Butler.

New Zealand is drowning in a sea of law. We have a tendency to pass big statutes, and then we do not like the results and engage in a constant pattern of massive amendments, whereby statutes risk losing both their principles and coherence.

The quantity of New Zealand statute law has increased rapidly over the last years. It is unrealistic to expect the amount to lessen. Policy-makers use law to achieve their ends and in New Zealand they are prone to overdo it.

It is an issue of constitutional balance. The executive branch of Government controls in secrecy both the policy content and drafting of legislation through a legislative programme agreed by Cabinet that is not even available to Members of Parliament under the Official Information Act.

With the responsibilities for legislation in New Zealand split between the Executive and the Parliament, it is not easy to determine which branch of Government bears the heaviest responsibility for the lack of quality and coherence that some statute law exhibits. This makes accountability for the quality and nature of the laws passed by Parliament difficult. A complete reconfiguration of the processes is required to improve quality and make the processes more open and transparent.

It is important to appreciate that while sometimes the system goes too fast and impairs quality, it frequently dawdles, which means that important but usually uncontroversial changes remain unaddressed. The House becomes a bottleneck or choke point for such measures. These two pressures work in opposite directions but both need to be addressed and integrated into a system that is more flexible.

New Zealand may no longer be the fastest law-makers in the west, as MMP has caused the legislative process to slow down. In fact, the Parliament has at times become constipated with the volume of legislation in front of it.

When a Bill is introduced, a public process of passing the legislation begins in Parliament and the Bill is referred to a select committee for public submissions and scrutiny. The Bill is debated four times in Parliament and then becomes law when the Governor-General assents to it.

Sometimes urgency is used to shorten the process, as with the Countering Terrorist Fighters Legislation Bill. This controversial Bill granted big new visual surveillance powers to the Security Intelligence Service and extended powers to cancel passports. The Bill was introduced and debated first on 25 November 2014 and passed under urgency on 9 December. The public had two days to make submissions to a select committee Bill that sat most of the weekend. It was reported back to the House on 2 December.

To deal so quickly with major legislation of this kind is both dangerous and unnecessary. Dangerous because the prospect of making errors is increased. Unnecessary because Parliament could have sat longer up until Christmas and considered the Bill properly. A careful study of the use of urgency over the period 1987 to 2010 found that “routine recourse to urgency to extend the House’s sitting hours is undermining the reputation of Parliament and politicians.”[1] It reduces scrutiny of legislation and is democratically problematic.

The establishment of the Legislation Design and Advisory Committee in 2015 is likely to lead to improvements, but not sufficiently to address the problems New Zealand has.

The proposals in A Constitution for Aotearoa New Zealand aim to encourage greater transparency and accountability to the public.

We propose a crackdown on the use of urgency, which is sometimes used to bypass  public consultation and push measures through with undue haste – see Should the use of urgency be restricted? If this change occurred, Parliament would have to consult the public on all proposed laws, except in rare cases.

We also propose that the Government and Parliament take more care when laws are first proposed and drafted. The public should be provided with detailed information on proposed legislation and consulted before the proposal reaches Parliament.

We propose that the Government should publicly disclose its legislative priorities at the beginning of each Parliamentary term, and again at the beginning of each year, so New Zealanders know what is coming up.

What are your views?


[1] Claudia Geiringer, Polly Higbee and Elizabeth McLeay What’s the Hurry?—Urgency in the New Zealand Legislative Process 1987–2010 (Victoria University Press, Wellington, 2011) at 162.