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McGee, David --- "Concerning Legislative Process" [2007] OtaLawRw 6; (2007) 11 Otago Law Review 417

Concerning Legislative Process

David McGee QC^[*]

A great deal of attention and legal writing is devoted to the legal processes employed by the courts in making law. The techniques employed by judges are critiqued and analysed constantly for the light that they throw on how legal rules are developed. What has come to be called (perhaps somewhat inaccurately) “Common Law” is a major focus of legal writers. But judges’ ability to make law, even for those who support or advocate for an activist judicial role, is necessarily more circumscribed than is the ability of legislators acting through Parliament. The latter have the capacity to initiate and to change or create legal rules on a virtually unrestricted scale, while courts lack an obvious initiatory capacity (needing to wait for issues to be litigated before them) and have only a limited capacity to create new law (legislating “interstitially” rather than being able to construct vast new administrative edifices). As Felix Frankfurter once said: legislatures make law wholesale, judges retail.^[1]

Yet despite the greater potentiality and actuality of Parliament as law-maker than the courts, with one exception, relatively little attention is paid to the processes employed by Parliament in making law. The exception, which has grown considerably over the last 20 years, is in regard to the interpretation of statutes by the courts. For this purpose, the courts have been using material generated as part of the legislative process and this practice has received at least partial endorsement from the legislature itself.^[2] But using the legislative process to mine travaux préparatoires does not evidence an interest in examining the legislative process as a proper subject of study in itself, in the way that legal method involving courts is seen as a proper, indeed legally popular, subject of study. Rather the use of parliamentary material for statutory interpretation is merely seen as extending the range of material that judges may have cognisance of in determining the meaning of the legislative provision before them. It is a purely utilitarian use, not an academic study, of legislative process. Those of us who were and remain sceptical of the utility of using legislative material for interpretive purposes and who distrust the motivation and consistency of its application, take little comfort from its use for this purpose. But it should be self-evident that a process that generates the bulk of our law — the Statute Law element rather than the so-called Common Law element, is worthy of study in its own right. This paper contains a number of reflections on that process from an institutional point of view (it does not attempt to analyse how effectively the process operates in particular instances).

Legislative output

Geoffrey Palmer, writing in 1979, famously said that the New Zealand Parliament passed the fastest law in the west.^[3] Palmer clearly meant this as a criticism. He was not praising the Parliament for its willingness to deal expeditiously with proposals for legislation, he was criticising it for its tendency to legislate hastily and without giving adequate attention to the implications of the matters before it. It is unlikely that Sir Geoffrey still holds to this view, at least to the extent that he did in 1979. The work in which he expressed it is now in its fourth edition (and significantly has had its title altered from “unbridled power” to “bridled power”). The latest edition (co-authored with Matthew Palmer) no longer repeats the fastest law-maker claim.^[4]

The movement to electoral reform which Sir Geoffrey was instrumental in initiating has changed the political dynamic totally. Governments, though the major parliamentary players, do not dominate Parliament in the way that they did under the first-past-the-post electoral system. A change to the legislative process introduced in 1979 (about the time Sir Geoffrey first wrote) means that all bills introduced into the House are referred to select committees for examination. A Bill of Rights with legislative reporting requirements has been enacted. If the New Zealand Parliament was derogatorily referred to as the fastest law-maker in the west in 1979, has this situation improved?

Sir Geoffrey’s statement was couched in comparative terms but he did not attempt to justify it by comparative analysis with other “western” Parliaments such as the United Kingdom, Australia and Canada and given the federal nature of the latter two such a comparison would be difficult to make. But the strength of Sir Geoffrey’s stricture did not stand on comparison. It was rhetorically effective (and, I would say, valid) on its own terms as an appraisal of the amount and speed of generation of legislation to which Parliament and the country had become accustomed. Intuitively, this seemed to be high and expectations were that it would be so. Analysis of whether this has changed in the last three decades, particularly since the adoption of MMP, is fraught with difficulties. Different drafting practices can change the volume of legislation that is apparently being enacted. New formats for the way in which legislation is published (and something as prosaic as typesize) can render comparisons over time difficult or even impossible to make. The re-enactment of the Income Tax Act in any particular year throws out any comparison that does not allow for this aberration. In comparing the amount of legislation passed over time the difficulties are manifold.

Yet, allowing for those difficulties, it does seem that despite the greater constitutional and political constraints on legislating today compared to the 1970s just as much legislation is passed by Parliament today and in just as short order as when Sir Geoffrey called it the fastest law-maker in the west.

The table annexed to this article gives an analysis of all Parliaments since MMP and of five pre-MMP Parliaments in the middle of each decade since the 1950s (about the time that statutes amendment bills assumed their present form). It records the number of public Acts passed by each Parliament, the number of pages of legislation that these Acts comprise and the total time sat by each Parliament (in minutes) and then compares the time it took to pass each page of that legislation. The Parliaments in which substantial Income Tax Acts were passed (1972-75, 1993-96 and 2002-05) are indicated. These Acts distort the figures and have thus been excluded from the total number of Acts passed and the page number figures, and the time sat has been reduced to allow for the time taken to pass them. (However, these Acts took up comparatively little time in the House. Indeed in passing the 2004 Act the House specifically agreed to limit the committee stage to three hours, essentially fast-tracking the bill.)^[5]

In considering these results too, it is necessary to advert to a point already made — that since 1979 all (or virtually all) bills are referred to select committees for consideration as part of the legislative process. Before 1979 a substantial portion (though not all) bills were so referred. The overall amount of attention given by the legislature to bills is likely to have increased as a result of this change, though how much is difficult to say. The more complex bills already went to select committees before 1979 and no analysis exists as to whether the amount of time that committees spend considering each piece of legislation has changed in recent decades. While it is likely that more people are aware of and take the opportunity to make submissions on bills than say 30 years ago, committees may be compensating for this by processing each submission faster. (For example, until 30 years ago witnesses would commence by reading in its entirety their written submission to the committee.) It is certainly the case that committees have a wider range of tasks to perform than prior to 1979. Before 1979 most committees were solely legislative committees, specialist committees considered estimates and petitions, and no committees could initiate inquiries. Now the 13 subject committees are generalist committees which, in addition to their legislative work, consider estimates, financial reviews, international treaties and petitions as well as having the ability to conduct inquiries. A much smaller proportion of committees’ longer overall meeting time is consequently devoted to legislation today. As will be seen, this contrasts with developments in the House.

The organisation of parliamentary business

Having entered these important caveats, what does strike one is how little has changed in terms of legislative throughput. The number of Acts passed may have declined slightly, at least since the 1970s and 1980s, but the number of pages of legislation has not. It is likely that this is explicable simply by bills in general being slightly longer than bills were a couple of decades ago. The amount of time that Parliament sits has not changed much either, apart from a spike in 1984-87. But this apparent stability does disguise significant changes. Until 1984 the parliamentary session was compressed into the months from May to November, with a lengthy recess in summer and autumn (a legacy of the need for farmer members to attend to the harvest). Parliament now sits more evenly throughout the year. Until 1985 too, the House regularly sat on a Friday. Since then regular sittings have been confined to Tuesdays, Wednesdays and Thursdays. However, what has been even more variable has been the Government’s ability to extend the sitting hours so as to advance its legislation. The parliamentary technique used to extend the sitting hours and thus the time available to pass legislation is called “urgency”. In procedural terms urgency is easy to put into effect. It simply involves moving a motion, which a Minister is empowered by the House’s rules (its Standing Orders) to do at any time. Up to the adoption of MMP, urgency was a normal means of running the House. Certainly, a parliamentary session confined to six months would not have been possible without urgency since with Parliament rising in November legislation with a projected commencement date up to six months hence had to be enacted well in advance and its passing thus became “urgent” in a real sense before Parliament went into its summer and autumn hibernation.

A more round-the-year organisation of parliamentary sessions avoids this artificial creation of urgency, but it does not mean that governments do not need to use it to facilitate their programmes. The problem for governments is that under MMP they do not have the political control of the House that enables them to claim urgency as readily as before. Urgency now has to be negotiated. It may be obtainable for only a few of the bills that the Government has before the House and not for all of those it would like to advance. It may be too that the Government has to limit the time that it expects the House to sit under urgency as the price of support from other parties (few urgent sittings go beyond 6 pm on a Friday these days). In these ways the proportion of the House’s time spent “under urgency” varies from Parliament to Parliament depending upon the political composition of the House but has generally been decreasing markedly under MMP.

A further factor to take into account in considering legislative throughput is the composition of the business before the House itself. In contrast to select committees which now transact a much greater variety of non-legislative business than ever before, the House has become more legislative-oriented. Until 1984 a new parliamentary session was held in each calendar year. This meant that each year ’s sittings commenced with a full State Opening followed by a lengthy general debate (the Address in Reply) in which all members participated (often more than once) for up to 30 minutes per speech. The practice now is for there to be only one session lasting the entire term of the Parliament. In place of the Address in Reply debate there is a general debate on a statement made by the Prime Minister, but speaking rights on this are tight and it lasts only about one-third as long as the old annual Address in Reply debate. Similarly, the Budget debate is a much-reduced event, lasting just over a week compared to three weeks before procedural changes in the 1990s. But the major reduction in non-legislative business transacted on the floor of the House has occurred with the Estimates debate. The time available for this had been reduced before 1985 but even then 16 sitting days were allocated to it each year, in practice permitting 50 hours or more of debate. Now the equivalent debate is limited to 14 hours (eight hours on estimates and six hours on financial review and other performance debates).

While question time lasts significantly longer today than it did even a few years ago, there has been a relative shift in the House from transacting non- legislative to legislative business. This movement helps to explain why the House passes as much legislation post-MMP as it did pre-MMP.

The legislative process

While the House is devoting a greater proportion of its time to legislative business (in contrast to select committees), other changes have occurred in the legislative process that have also facilitated the passing of legislation.

The legislative process can be seen as a series of hurdles or tests that a proposal for legislation (a bill) must negotiate if it is to survive and become law. These tests are designed to establish whether the bill is needed at all as an addition to the corpus of law and, if it is established as needed, whether it is fit for purpose in the sense of achieving what it sets out to do effectively and without any (or at least minimal) adverse consequences. The first of these questions (is the bill needed) is designed to determine if the bill should be passed, the second is directed to its form and if and how it should be amended. A good legislative process will attend to both.

In practice, we should not expect Government bills to be defeated and it is no test of the effectiveness of a legislative process to judge it against such defeats. In fact only one Government bill was defeated in the whole of the twentieth century. (Members’ bills are more regularly defeated but these are not, even under MMP, expected to be significant contributors to the legislation that is actually enacted. They are used more as means of floating ideas.) But even though governments do not engineer defeats for themselves by putting up for debate bills that will not pass, the legislative process still sifts out bills that run into political difficulties or in which sufficient defects are revealed to cause governments to think again about pushing ahead with them. They may thus languish at the bottom of the order paper or be quietly withdrawn at an opportune time, usually with no remark at all.

But the second objective of the “theory” of the legislative process is in practice much more significant at least for Government bills. This limb is directly concerned with the quality of the legislation (in terms of both policy and legal effectiveness) that Parliament enacts. Its success or failure can be judged only by assessing the contribution it makes to that quality. I do not propose to attempt such an assessment here, but I do propose to sketch out how the process pursues that objective.

Quality control through legislative process

The stages that a bill goes through in Parliament — three readings (debates), consideration of its details on the floor of the House and select committee consideration (particularly the latter) — together with the House’s general rules for the form that a bill must take, contribute or should contribute to improving the quality of the final output, our statute law. They aim at doing this in a number of ways.

Form

Increasingly, the House is prescribing the form in which legislation must be presented to it. Traditionally, it has not done this. Rather, the form that legislation has taken has been led by decisions taken within the Government as part of the drafting process by the Parliamentary Counsel Office (formerly the Law Drafting Office). This Office still leads developments in the drafting and arrangement of bills but these are now coming to be adopted as formal rules rather than being left solely to practice. In this way departures from practice for reasons of expediency can be prevented. Conformance with a set of mandated rules for the way in which a bill is to be constructed (while still allowing substantial discretion for drafting innovation) ensures that minimum standards are observed in preparing legislation.

Thus the House’s rules require that separate clauses set out the title of each bill and state when its provisions are to come into force or by what mechanism (Order in Council) they are to be brought into force.^[6] In regard to the latter, section 8(2) of the Interpretation Act provides a default provision. An Act that does not state or provide for its own commencement date comes into force on the day after it receives the Royal assent. But it is surely preferable that each Act explicitly address in its own provisions when or how it is to come into effect rather than leaving this to be deduced. A rule of legislative process now ensures that this must be done. Reliance on the general rule in the Interpretation Act should therefore be unnecessary.

One of the most important form rules relates to “omnibus bills”. As this involves more than form (it is primarily a means of fast-tracking legislation) it is discussed separately below.

Delay

The House’s procedures provide for delay in a bill moving through its several stages (though this is subject to override by urgency). In principle, successive stages of a bill must be taken on separate days. A minimum three-day stand- down period is mandated between a bill’s introduction and the first debate on it in the House and between the presentation of a select committee report on a bill and its subsequent progress. Committees are as a general rule given six months to consider a bill, though this may be shortened on direction by the House. A reprinted copy of a bill that has been amended must be available to members before the next stage of the bill can be proceeded with.^[7]

In these ways an attempt is made to ensure that members of Parliament and members of the public have some time to study the proposed legislation and to reflect on its implications. The objects of the legislative process would not be possible of attainment if there were not some delay in enacting legislation and provision of an opportunity for those with an interest in it to familiarise themselves with its contents. Whether these requirements are adequate is questionable. One obvious deficiency is in respect of amendments moved on the floor of the House. Non- ministerial amendments with financial implications require 24 hours’ notice.^[8] But ministerial amendments and non-financial amendments require no notice. Nor are such amendments subject to vetting under the New Zealand Bill of Rights Act.^[9] As Ministers propose the most significant amendments to bills as they are passing through the House and ministerial amendments have a high prospect of succeeding, this is potentially a major deficiency. (The Standing Orders Committee in 2003 did not support a suggestion that Bill of Rights Act vetting be extended to amendments).^[10]

Debate

Parliament is a deliberative assembly and the stages in the passing of a bill provide elected representatives with an opportunity to debate the merits of the bill. There are three opportunities for major debates — after the bill’s introduction (first reading), after it is reported by the select committee (second reading), and after its final details have been settled (third reading), that is, at three critical points in the passage of a bill, when it is new or has undergone or may have undergone change.

It is true to say that parliamentary debate is not generally directed to changing opinions in the House. (Though this can occur on conscience bills.)^[11] Members are elected in party interests. Each party will form a view on the bill before the House and members’ contributions will be largely directed to stating these positions. Indeed, the debates are now structured to facilitate this. But political debate of this nature is part of the context in which a bill must prove its worth. Legislation must be politically and administratively defensible. If it is not, it is defective and parliamentary debate can make a real contribution to revealing this.

The set-piece debates on bills are now quite brief. They are all limited to up to 12 speeches with each speech of a maximum 10 minutes duration. Each party has at least one opportunity to contribute on a basis agreed in advance. While theoretically 12, 10-minute speeches could take up two hours of House time, in practice few debates do last this long. Government whips in particular are inclined to prevail on their members to make short speeches (known as “whips calls”) in order to expedite business. Filibustering in the set-piece debates on abill is thus not possible.

While the committee stage of bills on the floor of the House is not time-limited because the variations in length of bills make this difficult to do, this stage has not been unaffected by procedural developments. The committee stages of bills are much shorter in duration than even a decade ago. Partly, this is a matter of expectation. Members themselves do not expect to be given extensive time to debate bills on the floor of the House. Though in theory members are entitled to multiple calls to speak on each provision of a bill, they rarely have a chance to exercise this right.

In terms of rule changes significant steps have been taken to reduce the time spent in debating a bill in committee on the floor of the House. The title and commencement clauses are now debated together and any schedules to a bill are not separately debated at all. (The latter are now debated along with any part of the bill to which they relate.) But most importantly, the House no longer considers a bill clause by clause. The practice of considering a bill clause by clause started to be eroded some 40 years ago when, on large bills, governments began to move procedural motions providing for debate in parts (containing many clauses) rather than clause by clause. Although exceptional at first, by the 1990s it had become standard practice to move such a motion and in 2005 the House finally recognised that it was the standard practice by changes in its Standing Orders. Bills are now considered part by part as a matter of course.

Anyone who wishes to see how parliamentary practice influences the form of legislation would be well advised to study the change in drafting practice that this development has caused. Up to the 1970s even big bills were rarely drafted in parts (though cross headings might be inserted above a group of clauses). Today virtually all Government bills are drafted in parts. Even more to the point, they are drafted in as few parts as possible, two being the aim (a bill cannot have only one part). In this way the number of separate debates in the bill’s committee stage is reduced to a minimum, thus expediting its passage.

Public input

The most distinctive feature of New Zealand’s parliamentary system is select committee consideration of legislation, in particular, the calling for and hearing of submissions from the public. In this way the public is enlisted into the legislative process in a way that does not occur with overseas legislatures. Select committee consideration of a bill and the public’s ability to participate in it are regarded as akin to democratic rights. This public input enables a wide range of lay and expert opinion to be brought to bear on the proposed legislation. It can reproduce criticisms advanced by members in the course of debate, but is more likely to influence and even be adopted by members for use in that forum. It leads to a critical and almost always constructive examination of the bill, often revealing problems that had been overlooked in preparing it and advancing it as far as the select committee.

Most amendments that are made to a bill emerge from select committee consideration. On occasion, a bill is completely or substantially rewritten as a result of this consideration, although it is a reflection on the bill’s preparation if the legislative process results in this occurring. More often the amendments are significant in improving the quality of the legislation without altering it greatly in policy terms. Occasionally, no amendments result at all, either because no drafting defects are identified or because the policy intent is so entrenched that the weight of submissions cannot alter it. Thus in 1990 the first act of the newly- elected Government was to repeal the Employment Equity Act 1990. This was a very controversial move but it had been clearly advertised during the election campaign. The relatively simple bill to repeal the Act was still referred to a select committee for a truncated hearing even though the Government would obviously not be moved from passing it. Here the select committee proceedings

took the form of allowing steam to be let off; arguably still valuable in terms of allowing the democratic right of legislative participation to be exercised. While it would be hard to overemphasise how important public participation in the legislative process is, its outcome is not governed by simply counting submissions for and against a bill. It occurs in a wider political context, and that wider political context helps to determine the fate of the bill.

Reflection

The legislative process allows for reflection on the legislative proposal to occur and for this to influence the form that the final legislation will take. Analysis of bills is carried out by departmental officials and parliamentary staff for the select committees that are considering them. The criticisms by members expressed in debate and, even more, the submissions of the public given to select committees, provide much of the raw material on which this reflection is based.

But reflection and analysis can involve more than simply responding to points raised by members and the public submissions. It can also involve rethinks and afterthoughts by the Minister and department responsible for proposing the bill. In this regard the document prepared by departmental officials for the select committee after it has heard evidence on the bill is often the most important single document that will emerge in the course of the parliamentary process since it will help to guide the committee’s deliberations. This influence of departmental officials with parliamentary committees considering bills (probably enhanced since Ministers largely stopped participating in such consideration personally in 1985) may be another distinctive feature of New Zealand’s legislative process.

Amendability

The legislative process in New Zealand results in a large number of amendments being made to bills as they are passing through Parliament. In these circumstances it is at first sight somewhat surprising how little formal attention is paid to amendments. Yet, on reflection, it may be just this lack of attention that conduces to the degree of amendment that Parliament experiences. As already remarked, there are very few rules requiring that notice be given of amendments, and there are none at all in respect of ministerial amendments. There were formerly rules that prohibited opposition amendments involving expenditure, though these have (sensibly) been abolished while bestowing a power of veto of such amendments on the Government as a power that is concomitant on the responsibility of governing. There is a rule requiring that amendments be relevant to the provision that they seek to amend (an amendment must be within the “scope” of a bill), but this relevancy requirement is interpreted fairly liberally.^[12]

Largely this lack of formal rules regarding amendments is a matter of Parliament’s culture. Under first-past-the-post virtually all amendments were Government-inspired. Restrictive rules on amendments would not have lasted long in Parliaments that always enjoyed a single-party majority. They would inevitably have been revoked or regularly set aside by that same majority. Rules restricting amendments had to be applied deftly in this political environment and reserved for only occasional intrusion in the more egregious cases. It is true too that a Parliament which relies so extensively on public participation in the legislative process cannot afford to be over-precious in its relevancy rule. A rule which applies only to members of a debating society can be relatively formal and strict. Where society at large is a potential participant in the discussion there cannot be the same expectation of familiarity with or tolerance of restrictions. Parliamentary culture has recognised this in its amendment rules (or lack thereof).

But this is not to say that the rule on the relevancy of amendments does not serve a purpose. Requiring amendments to be relevant is a way of ensuring that potential participants in the process can predict with some degree of assurance how a bill may turn out. They can then decide whether to intervene in the process themselves by making a submission that addresses the possible development. If an amendment that falls outside the subject-matter of a bill is permitted, the chances are that other persons with pertinent views on it will lose the opportunity to express those views by not anticipating that such an issue would arise. The resulting legislation will be poorer because less well- considered. Indeed, if there was no relevancy rule at all the legislative process could be subverted by introducing entirely new matter into a bill at a late stage without that matter having passed through all of the stages (including select committee consideration) that Parliament ordains as being a necessary prerequisite for the making of law.

Something of this nature has happened with omnibus bills in the past. So a relevancy rule does have a part to play in facilitating and protecting good process. But, for the reasons already stated, such a rule is not applied strictly in this Parliament.

Omnibus bills

An “omnibus bill” is a bill dealing with a number of disparate legislative topics. Such bills have been well-established features of New Zealand’s legislative process throughout Parliament’s history. By the 1950s there were five types of omnibus bill (often referred to as “washing-up” bills) that were introduced in most years: local legislation bills, reserves and other lands disposal bills, statutes amendment bills, Mäori purposes bills and finance bills. The latter type of bill often contained contentious and important provisions. For example, clauses in finance bills were used to extend the life of Parliament in 1918 and 1932, the latter occasion in extremely controversial circumstances. Statutes amendment bills had also caused problems. The enactment of amendments to a number of unrelated Acts in a single piece of legislation made it very difficult to keep up with the latest text of the statutes. Sir Clifton Webb when Minister of Justice insisted on amendments to different Acts being introduced in separate bills, doing away with statutes amendment bills for a few years.^[13]

In 1955 a procedural innovation was used. A single Statutes Amendment Bill was introduced but instead of it being passed intact it was divided at the committee stage into separate bills amending the several Acts to which its provisions related. These separate bills were then passed as separate Acts. (Amongst other things this makes a simple comparison of the number of Acts passed in Parliaments prior to the 1954-57 Parliament with those passed subsequently, misleading.) The object of dividing the Statutes Amendment Bill in this way was to facilitate identification of the amendments that it contained. Instead of being contained in one amorphous statute, they were contained in Acts bearing the titles of the main legislation that they were amending.

For many years this practice of dividing bills was confined to the annual Statutes Amendment Bill. However, in 1974 it was extended to a bill dealing with taxation. From that point on it grew until it became ubiquitous. While dividing a single bill into its component amendments undoubtedly facilitates identification of relevant statutory amendments, it serves another purpose too and it is the latter that is now important. It truncates the legislative process. Instead of a multitude of first and second reading debates, there is a single debate. Instead of a number of select committee considerations and committee stages, there is a single consideration and a single committee stage. Using the technique of dividing a bill to reduce the time needed to pass legislation became commonplace after 1974.

In 1983 this technique led to a new type of omnibus bill being devised — the Law Reform (Miscellaneous Provisions) Bill. This bill was a logical outcome of the practice. It consisted, as its title implied, of a miscellaneous collection of unrelated statutory provisions whose only common element was that they were too controversial (and had therefore provoked objection) to go into a Statutes Amendment Bill.^[14] Curiously, this was seen as a recommendation for their inclusion in the bill.^[15] For the next 12 years Parliament was plagued with miscellaneous law reform bills. Whatever the substantive merits of their contents, they lent themselves to blatant abuse of any good law-making process. Professor Philip Joseph calls them “the high-water mark of surrogate law-making”.^[16] Not only did they truncate debate on individual amendments to law that deserved separate consideration, but their lack of any discernible common content meant that even the rudimentary relevance rules already discussed did not apply to them. Thus amendments were made to such bills while they were passing through the House, tacking on to them entirely new statutes.^[17]

At the same time that miscellaneous law reform bills were cutting through any semblance of good process, finance bills were still being used extensively. These culminated in 1991 with a finance bill introduced following the Budget as so-called Budget night legislation. This bill contained amendments to 25 separate Acts, none of which were linked with the Budget. Despite an exceptionally long post-Budget sitting and the first working sitting of the House on a Monday for many decades, the bills divided from this bill were not all passed by the House until several months later.

The reaction against the 1991 finance bill meant that a bill as extreme as that was never again introduced as ostensibly Budget-night legislation (indeed the Leader of the House subsequently announced new internal Government procedures to prevent such a bill being put together again).^[18]

However, miscellaneous law reform bills continued to be introduced and restraint in the use of finance bills was voluntary on the part of the Government. Thus finally, in 1995, as part of its pre-MMP review, Parliament did introduce formal constraints on omnibus bills. These are now contained in the Standing Orders.^[19]

The contents of a finance bill is now strictly confined. It can contain only validation provisions. It cannot contain provisions making substantive changes to the existing statute law. Miscellaneous law reform bills (apart from the established types — statutes amendment, Mäori purposes, reserves and other lands, and local legislation) are totally prohibited. Bills must, in principle, relate to a single subject area. A bill can amend a number of Acts but only if it is dealing with an interrelated topic that is implementing a single broad policy or if the amendments to be effected to each Act are of a similar nature in each case. The Business Committee (which operates on a unanimity principle) can approve the introduction of a bill which breaches these conditions and, of course, the House can suspend its Standing Orders to permit a bill that does not comply to be introduced. In effect, however, the 1995 changes eliminated finance bills and miscellaneous law reform bills. No such bills have been introduced since then.

This is not to say that omnibus bills are not introduced and proceeded with. From 20 February 1996 (when the changes took effect) to 31 October 2003, 84 bills of an omnibus nature were introduced.^[20] Fifty-seven of these bills were regarded as dealing with an interrelated topic or making similar amendments to a number of different Acts, 19 were bills of a permitted type (statutes

amendment bills, Mäori purposes bills, etc), seven were approved for introduction unanimously by the Business Committee and one (the Business Law Reform Bill 2003) was introduced on a suspension of Standing Orders.

So omnibus bills are still a feature of the legislative process, though they are now subject to a control which has eliminated their worst features. Indeed, at the same time as bringing some order into the process of passing omnibus bills a substantial concession of debating time was accorded to the Government. Under the pre-1996 system each separate bill divided from an omnibus bill was debated separately on its third reading (it was this factor that extended the passing of the bills which emerged from the 1991 finance bill). In 1995, as a recognition that in future separate bills emerging from an omnibus bill would generally have some relationship with each other, separate third reading debates

for such bills were effectively abolished. Now only a single third reading is held on the bills divided from an omnibus bill.^[21] This represents a considerable saving in time for the Government as the price of content controls on what can be included in an omnibus bill.

Summing up

While the political conditions may not on the face of it appear as favourable today as was the case in 1979 to Parliament making “the fastest law in the west”, in fact Parliament has managed to maintain this “performance”. The sitting pattern of the House and the organisation of business, both in the House and in committees, are vastly different from 1979. Indeed it is those changes that have enabled the House to continue to produce legislation on the prodigious scale to which we have become accustomed. Thus procedural and organisational changes have allowed governments (as the initiators of legislation) to compensate for the greater political problems that an MMP electoral system poses for their legislative programmes.

But this is still not regarded as enough in some quarters. There is an almost insatiable appetite for more legislation, passed at an even faster rate than Parliament has maintained under MMP. Geoffrey Palmer and Matthew Palmer quote from a Ministry of Justice briefing paper in 1999 — Dissatisfaction with the legislative process has increased over the years. The volume of legislation is greater than Parliament can manage. There is frustration that routine technical bills cannot get passed. Seventy-one bills have been carried over to the next Parliament, yet in 1999 only fifty Principal Bills were passed (and in 1998 only sixty-one were passed).

The legislative programme is a choke point on government initiatives. By contrast with the modern budgetary process, very little resource is attached to prioritising and quality control of lawmaking. The quality of law-related policy decisions and prioritisation is the underlying issue.

Options for the government include:

a. continuing the incremental approach to reform

b. undertaking a more comprehensive review and reform of the legislative process.^[22]

The Chief Parliamentary Counsel has argued for relaxations in the omnibus bill rules to permit the Government to introduce omnibus bills that affect a particular sector.^[23]

For my part I take the Ministry’s urging of “reform” of the legislative process with a great deal of scepticism. The volume of legislation is not greater than Parliament can manage. The volume of legislation is what Parliament decides to pass. That volume might not be as great as the Ministry of Justice or the Government desires to see passed, but that is not inherently a bad thing. It was the miscellaneous reform legislation sponsored by the Ministry (or rather by its predecessor the Department of Justice) that ran roughshod over the legislative process between 1983 and 1995. It is understandable that it may seek a return to those days; others do not. Its appeal to the quality of law-related policy decisions and prioritisation is all very well. But, ultimately, it is for Parliament to take responsibility for the quality of law-related policy decisions where it decides to implement these by legislation. Prioritisation is not an evil. It is an essential task in any sphere of activity, it will always be necessary. The ministry’s briefing should be seen for what it is — special pleading for a greater priority to be given within government for its legislative projects.

With all respect to the Chief Parliamentary Counsel, sectoral omnibus bills are possible now if the House’s Business Committee can be persuaded of their merits. If it cannot be persuaded, the Government still has the option, if it can gain sufficient parliamentary support, of moving to suspend Standing Orders. This will cost it time on the floor of the House and thus militate against the Government resorting to that step. That is exactly what it is intended to do. The alternative of leaving it to governments to decide what it is appropriate to put into “sectoral” omnibus bills will inevitably lead Parliament back to the excesses of miscellaneous law reform bills and lose the hard won improvements to legislative process adopted in 1995. This is not because governments are inherently evil, but because the temptation to cut corners in the interests of their legislative programmes will be too great. Only strong rules can guard against it.

Law-making should not be too easy or treated lightly (whether by the legislature or the judiciary). It should be a deliberative process, flanked by tests designed to establish if the law-making proposal is needed and to ensure that when and if it emerges, enacted law is appropriate and robust. Too extensive a trade-off of the procedural constraints on law-making to make up for the new political constraints risks damaging the final product and bringing the law itself into disrepute.

TABLE

Public Acts enacted, pages of legislation, and time sat

^[*] Statutes Amendment Bill passed as separate Acts for the first time.

^[**] Excludes Income Tax Acts passed in those Parliaments.

[*] Clerk of the House of Representatives

[1] Quoted in Mark Silverstein, Constitutional Faiths (Cornell University Press, Ithaca,[1984] ), p 142.

[2] Interpretation Act 1999, s 5(2).

[3] Unbridled Power? – An Interpretation of New Zealand’s Constitution and Government

(OUP, Wellington, 1979), Ch 7.

[4] Bridled Power – New Zealand’s Constitution and Government (OUP, 4th ed, Auckland,[2004] ).

[5] Hansard, Vol 616, p 11775 (18 March 2004).

[6] Standing Orders 256 and 257.

[7] See, respectively, Standing Orders 282, 292, 291 and 268.

[8] Standing Order 322.

[9] See comment on this by the Court of Appeal in R v Poumako [2000] NZCA 69; [2000] 2 NZLR 695.

[10] Report of the Standing Orders Committee, December 2003, I.18B, p51.

[11] See, for example, the debate on the third reading of the Prostitution Reform Bill,

Hansard, Vol 609, pp 6585-6608 (25 June 2003).

[12] See Tim Cooper, “In Search of Scope”, Legislative Studies, Spring 2000, for a

discussion of these rules.

[13] Sheila Belshaw, A Man of Integrity – A Biography of Sir Clifton Webb (Dunmore Press,

Palmerston North, 1979), pp 102-103.

[14] Hansard, Vol 455, p 4791 (13 December 1983).

[15] Ibid.

[16] Philip A Joseph, Constitutional and Administrative Law (Brookers, 3rd ed, Wellington, forthcoming), para 10.7.

[17] Ibid.

[18] Hon Paul East, Leader of the House, “Reform of Budget legislation procedures planned”, press statement 19 August 1991.

[19] Standing Orders 261 to 264.

[20] Research carried out within the Office of the Clerk.

[21] Standing Order 308(2).

[22] Footnote 4, p 183.

[23] Submission to the Standing Orders Committee by the Chief Parliamentary Counsel, 14 October 2003.