Lurching towards constitutional impropriety

Comment: New Zealand is in danger of lurching towards constitutional impropriety.
The Luxon government is driving a number of controversial issues rapidly through Parliament. Some of these policies are unfit for purpose, legally suspect, contrary to the public interest and inappropriate.
As a former Prime Minister of this country, I am concerned that our democracy is being weakened by the methods this Government is using to achieve its goals. This is a time when we should be strengthening our democracy, not forcing through policies which destabilise it and threaten our nation’s sense of social cohesion.
New Zealand’s constitutional arrangements
I have spoken many times before of the need for a constitution in this country. New Zealand has a uniquely loose set of constitutional arrangements. The rules are not written down in any one place. Their operation does not depend on law for the most part. The system of Cabinet government rests mainly on constitutional convention or customs that are not legally enforceable. The prime legal rule is that ministers must be MPs. So long as Cabinet and the Prime Minister enjoy the confidence of the House of Representatives the government can remain in office.
Political developments are in a real sense what makes up the constitution at any given time. This ebbs and flows in various directions.Legislative supremacy rests with the Parliament, not the ministers. The system has few checks and balances.
It’s an unusual system. The United Kingdom, Australia and Canada have second houses to approve legislation – we do not – but there are better methods to improve matters without having a second elected House. I realise it is an unpopular suggestion, but we actually need more MPs if accountability is to be improved and responsibility sheeted home. A larger house would assist in reducing overweening executive power, long a characteristic of New Zealand.
Most countries have codified constitutions that are binding. Only three countries do not, the United Kingdom, New Zealand and Israel. Our Constitution depends upon a sense of restraint and principled behaviour of ministers. Without that safeguard all can easily be lost. New Zealand has one House of Parliament and is lacking many other checks and balances.
Policies and legislation
The first rule of politics is to learn how to count. To form a government the leaders must be confident that they have the numbers to win votes in the House in order to remain in office and pass legislation.
National has 49 seats in the House, ACT 11 seats and New Zealand First eight, giving a total vote of 68 out of a House of 123.  The negotiations for the three parties to reach a coalition agreement took 40 days after the general election.
Elections are usually won by support from the centre ground. But, in this instance, the coalition was formed by the three parties combining not only on confidence votes, but also on an enormous legislative programme, in which each of the three parties is politically obliged to support the policies of the other two in the coalition agreements.
These arrangements are unique in the history of MMP elections in New Zealand. In the past the usual pattern has been minority governments consisting of one or two parties, supported with confidence and supply agreements, with at least one other party. This allows for more legislative flexibility, requiring clear support for controversial legislation on an item-by-item basis.   
There is a substantial degree of  common ground between the policies of ACT and New Zealand First, particularly on Māori policy issues. Many of the ACT economic policies are to the right of the National party – and both of the smaller parties have a number of detailed policies often on smaller issues that are aimed at particular small pressure groups, for example tobacco companies and gun owners. These two  issues are both run by  ministers who have personal connections to the industries upon which they are now sitting in judgment.  New Zealand First minister Casey Costello with tobacco and ACT minister Nicole McKee with gun owners. It is  hard to see how these ministerial appointments could pass muster.
The volume of policy agreements between the three parties to the coalition cannot be described in detail. They are too many. In each case the coalition agreement between National and the two minor parties covers 20 pages each and there are 150 to 200 distinct policies depending on how one counts them. No Parliament could get through the required legislative agenda in a single term or even perhaps two terms. 
The striking features of these policies are their volume, variety and how they are expressed. Many are general and it is difficult to discern how they will end up. Others are highly specific, especially the more questionable ones, and will be difficult to retreat from.
The consequences for the analytical basis for policy and the design of legislation suggests two prime risks.  There seems to be an assumption the policies have an evidence base. But there is a risk here, as the relevant evidence is seldom articulated and, in many cases, does not exist. This is true for major policies on climate change, education, health and many of the more minor policies. Intolerance and indignation do not form a proper basis for public policy. Evidence is required. The costs of many of the policy undertakings are substantial, yet it is clear that the next two budgets will have little new money available.
The second risk is that the production of legislation in such circumstances will have unforeseen consequences that will require amendments in the future. Such legislation will not be enduring. Policy analysis is needed at the beginning of the process, not simply through bumper sticker statements that are not developed or rigorously examined before they are rushed into law.    
Two of those coalition parties did not have widespread support, yet they both secured a significant number of ministers. In addition, National accepted a raft of policies from each small party. It is a programme of measures, great and small, a proportion of which are highly controversial and some of which are highly divisive.
The smaller parties demanded a high political price for their support and were successful. The distribution of ministerial portfolios  was highly significant in this respect. The result is a supercharged government that seems imbued with swagger and legislative impatience, perhaps born of inexperience. There were more than 40 new MPs in the 2023 intake, most of whom had never been in Parliament before.
An important issue is how the appointments of ministers were divided up between the parties.
Table 1: Source Cabinet Office, Ministerial List
It appears that the smaller parties enjoy a somewhat disproportionate weight compared with the votes they obtained. They were in a position to exact policy adoptions by the coalition, even where the policies do not echo majority opinion on particular issues. Ministers from ACT and New Zealand First  also have important and heavy ministerial responsibilities.
Unprecedented urgency in the House
When an urgency motion is passed in the House the effect is to suspend the ordinary business until the items in the motion have been dealt with. This may take days. It means the House sits longer hours, usually until midnight and in the mornings, but it cannot sit on Sundays. The purpose is to accelerate legislative speed. 
 The Luxon Government engaged in a strategy of mass repeal of the previous government’s legislation under urgency early in its term, with repeal bills being rapidly introduced and passed. This seems to have been without considered advice from the public service being taken, or the usual checks and balances being followed, such as Regulatory Impact Statements. This was dubious behaviour from a constitutional  point of view. 
Massive amounts of money spent on policy advice and legal drafting resources have been wasted, including the resource management reform going back over about a three-year period. It would have been cheaper and quicker to amend the two massive environmental statutes involved. Instead, the government began a new process that will itself take years to complete. The result will be chronic uncertainty for years as to what the legal framework for development and resource management in New Zealand will be.
The amount of urgency taken marks a departure from recent parliamentary practice and this government has set a record for the number of laws passed in the first hundred days.  The number of  measures enacted under urgency is excessive. One is compelled to ask what is the hurry? The answer seems to be political expediency at the expense of proper legislative process. The desire for urgency was to crash through and get a lot done without effective parliamentary scrutiny. Proceeding at break-neck speed seems to have been a deliberate tactic to evade parliamentary scrutiny with the hope the public did not notice what was happening in the House. What goes on there is no longer reported by the media to the public in the way it used to be.
The comparative statistics for urgency in the first eight months of this government compared with their two predecessors are telling. The number of Government Bills progressed by this Government under urgency for their 1st  and 2nd readings, therefore excluding reference for Select Committee consideration, was 36.4 %  of the total number of Bills for the eight months from 5 December 2023 until 7 August 2024. In the previous Parliament it was 24 percent for the same period and in the government before that the figure was 6 percent. The comparative figures for all legislation dealt with in the two last Parliaments in their first eight months are available from the Clerk’s office and can be compared with the first eight months of this Parliament.  
How that record will look by the end of this Parliament cannot be speculated upon, but this was a massive amount of urgency.
Categories of Bills broken down by stage
Table 2:  Government Bills in the 54th Parliament (5 December 2023-7 August 2024)
The urgent action amounts to a conscious and deliberate reduction of scrutiny by select committees and the taking of public submissions. The Government argues big repeals were its policy in the coalition agreement and so there was no need for the usual scrutiny. That is to devalue the importance of debate in the House of Representatives and the traditional practices that have grown up around the legislative process. It also overlooks the fact the present agenda was not part of the policy offered to the electorate. It was agreed afterwards.
During this period the House sat in normal sitting hours for 221.47 hours. Under urgency it sat for 153.37 hours and it sat under extended hours for 6.19 hours.  The business transacted under urgency was extensive and included important measures. There were 21 bills that had their third readings under urgency, including the two big Resource Management and Built Environment repeal bills and the Interim Fast-track Consenting Bill. The same is true for the measures to disestablish  the Māori Health Authority, the controversial Smokefree Environments and Regulated Products Amendment Bill. The Local Government (Electoral Legislation and Māori Wards and Māori constituencies) Bill and 15 other Bills were dealt with in normal hours.
Introduced under urgency were 30 Bills,  many of them of prime policy significance, including the Reserve Bank of New Zealand (Economic Objective) Amendment Bill, the repealing of the two environmental statutes passed by the previous government, the Water Services Repeal Bill, the repeal of the regional fuel tax,  repeal of fair pay legislation, the disestablishment of the Māori Health Authority, the changes to the smoke-free legislation, the gang legislation, and the Fast-track approvals Bill.
The tight executive control of the legislative process was remarkable and a loss for democratic and parliamentary accountability. To legislate so fast and with so little reflection creates a dangerous precedent for the future of the New Zealand law-making system. It demeans the role of the House of Representatives and undermines public confidence and trust in our political institutions. To draft complex legislation at speed without proper advice, public consultation  or proper scrutiny is undesirable and reckless.
 Constitutional warnings
The strain that the legislative timetable imposed on the Parliamentary Counsel Office (PCO) for the drafting of  government Bills was formidable. As the Auditor-General told the Justice Select Committee considering the Estimates on June 17, 2024:
“The number, complexity, and size of the bills on the legislative programme has grown considerably in the past decade. The PCO is unable to keep up with this growth, the gap between PCO’s output and the legislative programme is growing wider every year. Tight deadlines, heavy workloads, and changing legislative drafting priorities is creating a significant capability and capacity challenge for the PCO.”
These warnings must be heeded and strong remedial measures taken. It should be recorded that Judith Collins KC, who is the Attorney-General – an office that is the guardian of the rule of law and constitutional integrity – has fired warning shots across the government’s bows. She has called out some of the poor constitutional behaviour and instructed  her colleagues on the need to behave better. In a speech on June 13, 2024 she acknowledged that New Zealand’s unusual constitutional arrangements meant the boundaries between the three branches of government, the Executive, the Parliament and Judiciary were “fuzzy.”
This meant that the “constitutional actors should have a shared institutional morality encompassed in the idea of comity between them.” She spelt out what this means for relations between the government and the judiciary. She made a further foray into this area in a statement to Marc Daalder of Newsroom Pro on July 19.
It was reported she wrote to the Prime Minister and all other ministers, copied to public service chief executives. She said the 100-day plan “has necessitated key processes being truncated or skipped. As we shift to the delivery of the government’s ambitious ongoing programme it is essential that proper processes are followed.” It is devoutly to be wished that this constitutional warning is heeded.
But there is no evidence this timely advice has been heeded yet. The foreshore and seabed saga shows that the Minister of Justice went ahead on July 25 with a detailed media release on the details of retrospective legislation interfering with litigation on the foreshore and seabed cases in the courts in a manner that is unacceptable for the rule of law in a democratic society. Constant pressure on the legislative process will produce bad law. The Attorney-General warned it would “increase the risk we will get it wrong and the legislation is ineffective or unworkable in practice.”
It appears that a dangerous habit has developed of interfering with cases before the courts and making statements that decisions will be over-ruled by legislation retrospectively before the legal proceedings are even over. This interference with the work of judges renders much of their effort futile, misusing the legislative supremacy of Parliament. It amounts to legislation by ministerial statement. One wonders how the legal advisers to the government and the parliamentary counsel can work effectively in such circumstances.
The Fast Track Bill
The Fast-track Approvals Bill  at the time of writing is still before a select Committee, having attracted more than 27,000 submissions. The Bill constitutes a massive attack on the environmental integrity of this country and gives unprecedented power to ministers to overrule the enacted law to an extent never seen before. And the processes to accomplish it lack transparency. It is a policy that contains high risk of political corruption by way of party campaign contributions. The policy stands New Zealand’s existing constitutional arrangements on their head by elevating decision by ministerial fiats of approval rather than proper process for considering the merits of the proposals.
The legal principles upon which the decisions will be made are vague and undefined. Many existing statutes are sidelined and will be ignored. That is the reason there has been so much resistance to a measure that has no precedent.
The complexity of the situation the select committee has been asked to sort out and improve presents an impossible challenge. The policy should have been designed and engineered properly in the first place and more time taken to do it.
Measures aimed at Māori interests
Many of the legislative efforts that have been made or will be made adversely affect Māori.
For example,  a novel feature of the  coalition agreement was “to Amend section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent, in light of the judgment of the Court of Appeal in Whakatohea Kotahitanga Waka (Edwards) & Ors v Te Kahui and Whakatohea Maori Trust Board & Ors [2023] NZCA 504.” 
This is objectionable on many grounds but the most obvious is that the case had already been appealed to the Supreme Court, but has not yet been dealt with. Yet the government thought it was appropriate to act before it knew the true state of New Zealand law on the subject. Most egregious is that the policy says the Court of Appeal got the interpretation of s 58 wrong and it needs to be brought back to the original intention of Parliament. The Hansard record of the parliamentary debates does not bear that out. The amendments proposed go far beyond s 58.
Further, to change the law when many cases were still to be decided, discriminated unfairly against such Māori groups who had not yet been reached in the adjudication process. It is difficult to resist the conclusion that the measure is another plank in the government’s determination to undermine and diminish Māori interests and the fruits they have obtained or would have obtained in the litigation.
The amending legislation is to include those applications under the Act that have been heard, or may have been heard but have not had the decision released. It includes overturning any decision that may be released prior to the passing of the legislation. What a grotesque effort to produce retrospective legislation  to damage the interests of Māori in such an unprincipled and discriminatory way. This may breach the 1688 Bill of Rights that is part of New Zealand Law and the New Zealand Bill of Rights Act 1990 that protect individual liberties. The first lays down that Parliament must make the law not the executive and the second protects human rights.
This was a New Zealand First issue in the coalition agreement. The Government has issued a broad media release saying it will legislate, trying to invoke the doctrine of parliamentary sovereignty or legislative supremacy to avoid acting in a principled manner and consulting properly.  So much for the Crown being a model litigant.
The Bill and the policy are now the work of the Minister of Justice, but whose justice is he delivering? The government is clearly of the view it can do anything it likes to interfere with rights obtained through the due process of litigation. This action is regrettable for the rule of law in a  democratic society such as New Zealand.  
There are other serious legislative efforts that have been made or will be made that adversely affect Māori and a significant part of the Pākehā population who support the Treaty of Waitangi. That has  generated a substantial political backlash and the situation could easily degenerate further into an unstable situation that will polarise the country and generate civil unrest.
Many of the Māori issues raised are complex and legally challenging to understand. But in addition to the Foreshore and Seabed injustices there are many others. They range from discouraging the use of te reo in government departmental names to much more serious matters such as legislating on the principles of the Treaty of Waitangi. The coalition agreement between ACT and National contains a commitment under the heading of “strengthening democracy” to “introduce a Treaty Principles Bill based on the existing ACT policy and supporting it to a select committee as soon as practicable.”
The Waitangi Tribunal published a long and thorough interim Report on August 16, 2024, labelled for short “The Principles.” It also involves the review of Treaty clauses in Acts of Parliament advanced by New Zealand First. The report concludes that both the Crown’s Treaty Principles Bill policy and the treaty clauses review policies are both inconsistent with the principles of the Treaty of Waitangi. The Tribunal also found that considered jointly, these policies were consistent with an alarming pattern of the Crown using against Māori the policy process and parliamentary sovereignty, instead of meeting the Crown’s Treaty obligations. The Tribunal recommended the policy be abandoned. It made other important recommendations about how to enter proper consultations over the New Zealand First policy on Treaty clauses in legislation. It also called for a return to a policy of partnership to repair the damage done to the Māori-Crown relationship.
The good thing about the government policy on this topic is how futile it will be. The Treaty is binding on the New Zealand Government. It is binding because New Zealand is the successor to the obligations of the UK government which negotiated the Treaty, since we are now independent. And it is also binding on us because it is a valid treaty at international law. And to cap it all the Treaty may be binding as a matter of contract law.
New Zealand is likely to be internationally embarrassed if these policies prevail.  The ACT policy on this matter is polarising and dangerous to civil order. Sir John Key was right to speak out against it. The efforts to cut down the jurisdiction of the Waitangi Tribunal are also misguided. The work that tribunal has done over many years has made a constructive contribution to race relations.
The Department of Statistics states in the 2023 Census: the Māori descent census, usually resident population count, increased by 12.5 percent to 978,246, compared with 869,850 in 2018 Census. People of Māori descent made up 19.6 percent of the total population, up from 18.5 percent in 2018.
Meanwhile the Local Government Act has been amended to require that Māori wards in local government must be subject to an affirmative referendum and Councils will no longer be able to create Māori wards, unless the electors in the locality vote for them directly. This must be regarded as a backward step and likely to cause justifiable resentment. Already there have been angry demonstrations
There has also been protest about the statutory removal of section 7AA of the Oranga Tamariki Act, establishing protections for Māori children. That provision says, “The duties of the chief executive set out in subsection (2) are imposed to recognise and provide a practical commitment to the principles of theTreaty of Waitangi (te Tiriti o Waitangi).”
There has been no credible evidence advanced to suggest that this provision is not needed to protect Māori children. It is hardly necessary to look further than the recent Royal Commission report on abuse of children in state or religious care. The ACT minister has failed to justify the measure. There is not a fig leaf of evidence to protect her.
The establishment of youth boot camps and the proposed gang legislation will also disproportionately affect Māori people adversely. Other moves likely to damage Māori interests include the removal of the Māori Health Authority and the proposal to change the functions of Te Arawhiti, the Office of Crown Māori Relations.
Were the actions taken proper?
Democracy around the world is under challenge. The number of democracies is decreasing and many of those that remain have deteriorated in democratic quality. They veer toward autocracy. There is less openness of decision-making. Rot and decay set in. This reduces the trust of the population in the institutions of government. New Zealand is one of the world’s oldest democracies and on the evidence advanced here it seems we are now suffering from decay.
As Professor Quentin-Baxter wrote in 1982 “A constitution is a human habitation. Like a city it may preserve its life and beauty through centuries of change. It may on the other hand, become a glorious ruin from which life has departed, or a dilapidated slum that no longer knows the great traditions of its builders.” Has that now begun to occur in New Zealand?
The combination of substantive policy issues and legislative methods discussed here offer a potent method of changing established constitutional norms fast. And it is exceedingly difficult to get to the bottom of how it being accomplished. Or what will happen next. Driving measures through the House of Representatives by excessive use of urgency demeans Parliament and damages our democratic fabric. Some of the chosen policies seem calculated to cause splits and divisions in society. What has been done is not wise. And I suggest it is not an ethical use of political power.