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March 22, 2010 | by  | in Features |
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Urgent business

Is the use of urgency undermining New Zealand’s democratic ideals?

It is a relatively lengthy process for a bill to become law. Once a piece of proposed legislation is dreamed up and drafted, it must pass through a number of stages before it becomes part of New Zealand’s law.

There are a number of reasons for this lengthy process. First and foremost, it allows members of the public to have their say on the shape and form of the bill through the select committee process. It ensures that healthy debate can take place in the House of Representatives to iron out any flaws with the wording of the bill. It ensures that the proposed law is in the best interests of New Zealand citizens.

However, the use of urgency can undermine this process. But what does urgency mean? What implications does it have for the law-making process? And how about that thing we call democracy?

Urgency: why do we need it?

Urgency can be used by the House of Representatives to make progress on certain items of business, such as bills, outside the normal hours that the House sits.

Hold up, what does that mean? The House sits?

The House of Representatives doesn’t really meet (or ‘sit’ to use the technical term) for all that long. The House usually sits from 2pm until 6pm, and 7.30pm and 10pm on Tuesdays and Wednesdays. On Thursdays the House sits from 2pm until 6pm. The House doesn’t sit every week either, so it is a relatively short time frame that Members of Parliament (MPs) are working with to debate and pass legislation.

Sometimes it is necessary for bills to be passed more quickly. Under usual circumstances, a bill cannot pass through more than one stage in the legislative process in one sitting day. If it is deemed necessary to move into urgency, a motion can be moved by a government minister to go into urgency for ‘specified business’.

The specified business can include new bills that the government wants to introduce and progress through all or some stages of the legislative process. Advance notice of such a motion isn’t needed, and the motion isn’t debated by the members of the House. The minister must, however, tell the House why the government wants to go into urgency.

By going into urgency, the sitting hours of the House are extended. Extra hours come into effect the day after the urgency motion is passed. Sitting will resume at 9am that day, and continues until midnight, with two one-hour breaks. This schedule will continue on subsequent days until the business is completed—for example, the bill is passed—or the government decides to move out of urgency. The House may be required to sit on Saturday, although the House never sits on Sundays.

In basic terms, by going into urgency, MPs are required to sit around in the House for extended periods of time in order to do their business as, well, urgently as possible. While this might be an awfully efficient process, what implications does it have for the rest of the law-making process?

Under urgency, bills can be introduced and passed through the entire legislative process in one sitting. This means bills introduced under urgency are not referred to select committees, nor do they face the scrutiny of those outside the debating chamber.

How frequently is urgency being used?

Urgency has been used by governments of both political persuasions, National and Labour. It has been acknowledged that urgency does have its place in the parliamentary system. Wellington Central MP Grant Robertson says that urgency is reasonable when “parliament is needing to correct an error or a mistake.”

However, its excessive use does raise questions about the intentions of the government in passing legislation under urgency, as bills do not face the same levels of scrutiny as they do under normal sitting procedures.

Robertson has been vocal in his criticisms of the current National government’s use of urgency, and made several posts on the issue in late 2009 on the Labour party’s Red Alert blog.

He told Salient that he does think that the National government has used urgency excessively in this current term.

“Statistics show that they’ve used it far more than was used in the previous term of government and even going back into the National government in the 90s.”

In a post on Red Alert in October last year, Robertson cited the percentage of hours spent in urgency in each parliamentary term between 1990 and 2009.

In National’s current term, up until 20 October 2009, 33.6 per cent of the sitting hours were spent in urgency. This compared to 9.9 per cent of hours in Labour’s 2005-2008 term, 21.38 per cent in the 2002-2005 term and 13.12 per cent in their first term.

Robertson concluded in the post that “such excessive use is inevitably going to lead to bad law, and it is anti-democratic”.

David Farrar, the author of Kiwiblog, contested the claims made by Robertson and others in a blog post in late October.

Farrar argued in response to Robertson on Kiwiblog that in a normal sitting week, the government only gets about 12 or 13 hours to pass bills. This can be further reduced with the time it takes to conduct other parliamentary business.

By moving into urgency, Farrar said the government was simply extending its sitting hours on a Wednesday and Thursday to allow it more time to get bills passed.

Farrar also points out that Labour too used urgency to push laws through parliament. “Dr [Michael] Cullen regularly put the House into urgency between 1999 and 2008.”

What’s going down under National?

Three high profile pieces of legislation have been passed by National under urgency in the current parliamentary term: aspects of the Auckland super city legislation, the emissions trading scheme, and the national standards legislation.

Robertson says that many of the flaws that have come to light, particularly with national standards, could have been ironed out during the select committee stage, which was bypassed as National pushed the legislation through under urgency in its first 100 days in government.

“That is a classic example of a piece of legislation that needed expert attention and public attention, and that’s what you get [in a select committee]. Instead it was rammed through and all of the trouble we are seeing with national standards, a large part of that could have been dealt with in the select committee process.”

Education experts had called for a rethink of national standards and its implementation. Political commentator Colin James said in a column for The Press in November last year that the “subtext” of the complaints of educational experts such as Auckland professor John Hattie was that “fast law is bad law”.

Furthermore, strong protest has greeted Auckland’s super city plans and many feel that the democratic process has been put aside, and many feel proper consultation has not been undertaken.

Flawed law making?

In skipping the select committee stage, an important opportunity for the public and experts to scrutinise the bill is bypassed. Robertson says that the select committee process is “a critical part of our democracy and New Zealand should be very proud of the way select committees do their work”.

He adds, “we have some of the most rigorous investigation of legislation of any parliament in the world and to then go and bypass that, to me it seems something that you should do only in the most extreme of circumstances.”

With a lesser degree of scrutiny, there is also the potential for mistakes to make their way into legislation.

“The process in parliament of first reading, second reading means that problems are almost invariably picked up along the way,” Robertson says.

“There are very few pieces of law where there isn’t a mistake found during that process, it’s just human nature. When you do urgency, you just rush it, and rushed law is bad law.”

Clearly there is a place for the use of urgency in the legislative process. However, its excessive use does call into question a government’s commitment to the democratic principles on which our political system is based. The use of urgency by governments deserves greater public attention and scrutiny. Perhaps it is time that we looked into how urgency could be more constructively used by our law-makers.

For more info check out www.parliament.nz.

How a bill becomes law

Introduction to the House
The bill is, well, introduced to the House. The public get to see the proposed legislation for the first time.

First reading debate
MPs have their first chance to debate the bill. They will vote as to whether the bill will proceed or not. If it’s successful, the bill will proceed to the next stage, if not, it’s canned.

Select committee
This is the part where the public gets to make submissions on the bill. The select committee also gets advice from officials and decides whether it will recommend any amendments to the bill. The select committee has six months to report back to the House, unless otherwise specified.

Second reading
MPs will debate the main principles of the bill. The bill is voted on again.

Committee of the whole House
The bill is considered by the House part by part, to make sure that all MPs have a chance to debate the details of the bill. Further amendments can be suggested and must be submitted as Supplementary Order Papers. Once the bill has been agreed to, it can proceed to its third reading and it is reprinted showing any amendments.

Third reading
This is the last chance for a bill to be defeated. If everyone agrees, the bill is deemed to have been passed by the House.

Royal assent
The bill is signed off by the governor-general and it officially becomes law!

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Editor for 2010, politics nerd, panda fan and three-time award-winning student journalist.

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