Earlier the same day, RMA Reform Minister Chris Bishop had put forward an amendment paper with a large number of changes.
Assistant Speaker Barbara Kuriger (National), said the Clerk’s advice was that the listing of projects under the Fast-track Approvals Bill appeared to benefit specific people – and therefore should be classified as private legislation.
She ruled that meant it would need to be removed from the bill.
“As a result, the minister’s amendment to Schedule 2 ... may not be debated and no question will be put on it,” she said.
Victoria University of Wellington senior law lecturer Eddie Clark has recently written a paper about the role of private bills and said the problem was the Fast-track Approvals Bill is a Government bill.
Private bills – which basically grant a specific exemption to the normal laws – must go through a specific process, including seeking consents from those who may be affected.
“Most legislation is about things that affect everybody in the country ... there’s a special sort of law called Private Legislation which confers a private benefit to named specific people, and because that’s an unusual thing for parliaments do, it has a different and in some ways more rigorous process than normal legislation.
“The reason that this was seen as slightly dodgy is because it got quite close to slipping in those private benefits without having that different process.”
So the Clerk’s advice essentially suggested the bill was granting an exemption from normal law to specific people, and therefore should not be a Government bill. New Zealand does not have a process which allows for a bill to be both a Government bill and a private bill.
The Government pushed back against Kuriger’s ruling, asking for Brownlee to be recalled into the House so it could be debated. Bishop argued the bill should remain a Government bill, and – backed by Regional Development Minister Shane Jones (NZ First) – that it was a Government bill for the benefit of the wider public.
Labour’s Duncan Webb argued those named in the list were receiving a private interest, saying including it “would be constitutionally an outrage”. The party’s leader Chris Hipkins said it would be unprecedented for the Speaker to reverse Kuriger’s decision, which had been based on the Clerk’s independent advice.
Green MP Lan Pham argued the benefit of the projects was narrow in some cases.
Bishop argued the Government not being able to pass such legislation would set its own precedent, infringing on the executive’s right to legislate.
Brownlee sided with the Government.
“I’ve done a great deal of thinking about this particular issue as it’s been on the cards for a number of days,” he said.
“We would not want to permit a situation where members and ministers could simply propose bills and amendments to benefit particular private interests without proper scrutiny under the House’s rules.”
However, Brownlee noted there was “virtually no bill passed in this House that doesn’t have some private benefit” and pointed out the projects in the list would still need to go through an application process – they were not being signed off entirely simply by being included in the law, just skipping the initial application stage. The projects had also already been through a selection process through a ministerial advisory group.
He therefore did not believe it would amount to conferring a private interest, and allowed it to go ahead – but suggested the Opposition could be granted extra time and leeway during the committee stage.
“It’s finely balanced, but that is my conclusion.”
Victoria University’s Eddie Clark said Brownlee’s ruling relied on the fact the benefit to the named individuals was not guaranteed, it just put them ahead in the process.
“You’re not guaranteed your consent, and because it is a process benefit rather than a substantive one ... he thought it was okay.”
He said it showed the pitfalls of rushed lawmaking.
“It’s very poor lawmaking. This Government has had a lot more urgency than previous governments ... I think we’re seeing one of the effects of that, which is that you don’t necessarily think all this stuff through when you’re rushing it and they’ve got very close here to having a problem where this whole amendment was ruled out.
“We did have a select committee process. It was a somewhat constrained one, but we had a select committee process, and this functionally undermines it.
“They made recommendations for changes, and that was the chance of public input, input from officials, from a multi-partisan select committee. And instead we’re getting ... an extensive amendment.”
Clark said it was concerning the amendments had been put forward with no notice to the Opposition, journalists or academics.
“It just reduces the amount of scrutiny what quite a significant bill ends up getting.”
He said it was very unusual for the Speaker to override both the Clerk and the Assistant Speaker.
“The Speaker is ultimately the decision-maker. They don’t have to follow the Clerk’s advice, but typically they do follow the Clerk’s advice, and it’s quite unusual for the Speaker as well, to overrule deputy Speakers.”
In this case, it was someone from Brownlee’s own party, but “I guess it also shows the non-partisan nature of people chairing these things, because we have two people from the same party that went in different directions on the same point”.
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