The New Zealand Law Society came to Parliament yesterday and told MPs they made too many laws; they made them too quickly; some were made in secret, and much of what became law was muddled and badly drafted.
The Society’s representatives were the former Prime Minister, Sir Geoffrey Palmer and University of Canterbury Professor and author of the country’s standard Constitutional law text book, Philip Joseph.
They were making submissions to one of Parliament’s most high powered committees, the Standing Orders Committee which is chaired by the Speaker, David Carter, and is reviewing the rules that regulate the way Parliament works; the standing orders.
Sir Geoffrey said New Zealand had 65,000 pages of statute law.
“It is a massive confusion,” he said.
“A lot of it is out of date and Parliament passes a vast amount of new law all the time.
“We are beginning to drown in a sea of it.”
Palmer’s central complaint was that too much legislation was rushed.
He said the answer to that was that Parliament should sit more often.
“The Parliament needs to sit for a longer number of hours to alleviate the pressure on the Government’s legislative programme.
“The legislative programme is massive so the pressures to try and attenuate the consideration of it increase and you get perfunctory examination, perfunctory scrutiny by Select Committees and people getting annoyed because they are not heard.”
He said the number of sitting hours in the New Zealand Parliament was reasonably low because members liked to be in their electorates.
“But that’s not what they were elected to do.
“They were elected to make law and appropriate money.”
At that point, Labour MP Trevor Mallard interjected: “Half of them don’t have electorates” (a reference to list MPs).
Sir Geoffrey: “No they don’t, so they should be here all the time!”
He proposed that Select Committees allow a minimum of six weeks for public submissions — except in emergencies.
But the Society’s big proposal, which he presented, was that New Zealand should emulate Australia and set up a “Main Committee” of around 30 MPs which would in effect be a second parallel Chamber to the main debating Chamber.
He suggested it could sit in the former Legislative Council Chamber, known these days as the “Grand Hall”.
The Committee would take over the Committee stages of Bills which he says currently leads to confusing legislation because the Government is able to move amendments to a Bill (called Supplementary Order Papers – SOPs) as it has come out of the Select Committee.
The society’s submission said the SOPs often did considerable damage to the architecture and coherence of Bills.
“Both opposition and Government members can move amendments with little notice and with no certainty until the last minute whether or not they will be accepted.
“SOPs can be tabled up until the moment that voting begins on the provisions they propose to amend.
“SOPs of more than 100 pages are not unknown.
“Wholesale amendments at this late stage can cause considerable harm.
He said that because New Zealand did not have a second Chamber to scrutinise legislation as Britain had with the House of Lords it was important that there was sufficient time for the Committee consideration of Bills.
“That is why we think it is important to have a Main Committee, so the scrutiny is better carried out than it is now.”
However, Sir Geoffrey conceded that what he was proposing would not affect the executive branch of Government — the Beehive — at all.
“The methods of law making that go on in secret in the executive branch of Government are unsatisfactory in many instances, and the Parliament can’t do anything about it.
“But this is a very small Parliament.
“The power of the executive in this parliament has hardly been altered by MMP.
“it is an executive friendly single chamber parliament
“that means that we have serious problems with law making because the executive dominates it easily.”
As an example of what happens when the executive does dominate the legislative process, he cited the current Resource Legislation Amendment Bill which is supposed to reform the Resource Management Act.
“As a legislative process, I can hardly think of anything which has been worse in my lifetime.”
The 218 – page Bill is currently held up in its Select Committee while the Government and the Maori Party negotiate over parts of it.
It has already been substantially rewritten though how and what is in it now remains confidential to the Committee and presumably the Minister.
Sir Geoffrey said the Resource Management Act itself was far too long because the New Zealand parliament had a habit of legislating a great deal of administrative detail that would be better left out of legislation altogether.
“If you look at the Resource Management Act, it’s about six or seven hundred pages.
“It’s got two and a half pages of operative provisions,
“The rest of its process.”
He was also critical of MPs making political speeches when they were supposed to be considering a Bill part by part and examining it in detail.
“A lot of that time is being spent in political debate, not in scrutiny.
“And scrutiny is what the constitutional function is and it’s not being carried out adequately.
“Part of that problem lies with the Members of Parliament themselves who are more interested in the political gains they can make rather than the quality of the legislation that they produce.
“It’s very easy to lose sight of the basic purpose of the enterprise and the basic purpose is to produce high-quality law that works.
“And not too much of it, because if you try to produce too much of it, you will not get it right.”
The Law Society is just one of many submitters to this review.
Unusually, some individual MPs have made submissions as have political parties, NGOs and even former Parliamentary staff and Press Gallery members.
Many of the submissions are highly technical, but there does seem to be a focus on some of the themes that the Law Society addressed yesterday.
But Sir Geoffrey alluded to the fundamental problem – whether the Government (the Executive) would take kindly to having its actions and legislation subjected to intensified Parliamentary scrutiny is another matter altogether.