Legal Beagle by Graeme Edgeler


Short circuiting the legislative process; or why are we still writing about Nuk Korako?

Sometimes a law change is so important and so urgent, that Parliament feels it needs to pass it immediately, without the possibility for select committee scrutiny, and public submissions. Today, we got some insight into what that threshold is.

And it seems that National, and ACT, and Labour, and the Greens, and New Zealand First are all in agreement about this. The type of law that is so important, and so urgent, that it should be passed without ordinary scrutiny, prohibiting citizens from having a say includes Nuk Korako’s so-called “lost luggage” bill.

Now, that bill did basically nothing, but it could have been amended so that it merely did next to nothing. In fact, I’d started writing a submission on the bill pointing that out. But so urgent was the law change, Parliament unanimously decided that none of us should be able to have a say.

The point of the bill was supposedly to update the process for Airport Authorities selling off unclaimed lost property. It did not do a good job of that. And, actually, Parliament has had some experience of how to update the laws around the conduct of public lost property auctions for the Internet age. When Parliament passed the Policing Act, they changed it so that Police had the option of selling goods at an online auction.

This is good. Selling some types of items at an online auction site is likely to increase the amount of money received for them, and when we’re talking about public assets (which unclaimed lost property is), giving those tasked with looking after those assets powers to best realise public benefit from them is good.

But I will now never get the opportunity to finish that submission, and, if we ever want this very minor, but still slightly positive law change enacted, Parliament will have to change the law again. All because Parliament agreed to shortcut the normal process for passing law.

Now, I agree with pretty much all the criticisms of Nuk Korako’s bill. It was not worth spending Parliamentary time on it as a separate bill, and even with the minor change I would have proposed given the chance, it would still have been much better to simply wait until the Airport Authorities Act was next updated, or included in a statutes amendment bill.

Now, that’s what happened here, but it happened after the statutes amendment had been to select committee, too late for anyone to have a say on it.

Now, if Parliament really thought Korako’s bill was such a waste of time, and inappropriately dealt with as a separate bill, it’s solution was to vote it down at first reading, not to short circuit the legislative process to enable it to be passed without public scrutiny. And with even ACT calling the legislation a waste of time, it seems likely that it would quite properly have never progressed past a first reading. Not all that much Parliamentary time would have been wasted (likely around 30-40 minutes), and the change, if still thought necessary, could have been adopted into a later statutes amendment bill, or wider amendment to the Airport Authorities legislation.

But more important than the quick adoption of Korako’s lost property bill, was that it was not the only one that Parliament decided to add to its just-about-passed Statutes Amendment Bill this morning. It also adopted Matt Doocey’s Companies (Annual Report Notice Requirements) Amendment Bill, which changes the requirements around companies posting out hard copies of their annual reports.

This was a law change that National MP Chris Bishop was adamant was sufficiently controversial that inclusion in a statutes amendment bill was inappropriate, and it’s now not only been included in a statutes amendment bill, it’s been included in one without select committee scrutiny.

In a sense, the adoption of this change without select committee scrutiny is worse. There was quite a bit of scrutiny of Nuk Korako’s bill by members of the public. I don’t know that there’s been any of Matt Doocey’s bill. I’ve had a quick look, and cannot see any flaws, but it is not an area of the law with which I am especially familiar, and I’m not going to guarantee you that there isn’t some minor mistake in it that will need to be fixed.

Which is the point of the Select Committee process. The drafters of just about every bill that goes to select committee see no issue with the words they’ve written, but close analysis by MPs, officials, and members of the public, often pick up little (or big!) errors. Amendments that are included in Statutes Amendment Bills are supposed to be short, technical and non-controversial, but a surprising of statutes amendment bills will have one change or another that either the Law Society, or officials, or someone, find some minor issue with that needs to be changed. And I'm betting that at the point at which our MPs unanimously supported the change all voted in favour of Doocey's bill avoiding select committee consideration, our MPs were not certain that his bill would not be one of them. It’s probably fine, but probably shouldn’t be good enough.

We get something out of this all, at least. We will know that, next time the opposition complains that the government is passing laws without select committee scrutiny, what the standard is. And we can simply point them to this, and tell them to go away.

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