Kiwiblog

Katie Bradford-Crozier at NewstalkZB reports:

Cries of abuse of parliamentary privilege rang out across the debating chamber last night as Labour again delayed proceedings of ACT’s Voluntary Student Membership legislation.

The bill was due to have its fourth committee stage debate but was delayed again because Labour filibustered on a minor bill that has the entire support of the House, the Royal Society of New Zealand bill.

ACT MP Heather Roy, the VSM bill’s sponsor, says enough is enough.

“My party has been as guilty as others at times of filibustering, but the filibustering but the filibustering has reached a point now where I think we need to say is this an abuse of parliamentary time or not, and it definitely is.”

Ms Roy says the party has delayed the bill for months now and in doing so, denied other MPs the ability to have one of their bills debated.

“A Member’s Bill is the only opportunity a backbench MP has of raising their issues in Parliament, and so they’re denying all other backbench MPs an ability to have the issues that they feel strongly about debated in the house,” she told Newstalk ZB.

It’s one thing to filibuster a bill you are totally opposed to. But Labour are filibustering their own non controversial bills, such as the Royal Society Bill.

I had a major flick at the Government over the use of urgency, but we should equally condemn what Labour is doing here.It is an abuse of Parliament, and in fact is partly to blame for use or urgency. If an Opposition filibusters, then the Govcernment is forced to use urgency so that it can make some progress with Parliament’s legislative agenda.

I don’t regard it as acceptable to block an entire year’s worth of members’ bills, through filibustering.

If the Government does go into urgency again, before the election, then Labour is at risk of having no credibility if it criticises the use of urgency. The more a party filibusters, the more urgency will be used.

As I said, I have little problem with filibustering laws you are totally opposed to. But filibustering totally uncontroversial laws which are supported by all 122 MPs in Parliament is an abuse, and those of us who condemned over-use of urgency should also condemn Labour’s filibustering of totally uncontroversial laws.

The NZ Herald editorial:

Most importantly, the frequent use of urgency suggests a lack of regard for parliamentary process. And if many governments have been guilty of succumbing to temptation over the years, National’s record this term is particularly poor. In its first two years in power, it used urgency for 331.5 hours, nearly double the time the former Labour Government sat under urgency in its full first term. In that time, it has pushed through 17 laws without allowing select committee examination. Labour’s figure was four or five each term.

As I blogged last week, use to skip sleof urgency just to extend the sitting hours of the House is not that big a deal, especially as National goes out of its way to preserve question time when in urgency.

When it is used to progress a bill through multiple stages at once, or to skip select committee, that it gets more problematic.

Various proposals have been put forward to reduce the use of urgency. Requiring a 75 per cent vote in Parliament before the select committee stage could be omitted for any bill is one of the more valid. Another suggestion is for more sitting weeks each year. But the total number of bills passed by National is little changed from that passed by Labour.

Changes to standing orders need, broadly, both major parties to agree. I’d like to see both National and Labour agree on changes, such as extending the sitting hours so that it reduces the need for urgency. This could be done by having more sitting weeks, by allowing the committee of the whole to meet in mornings, by being able to extend House hours in the evening etc.

Andrea Vance at Stuff reports:

Fierce protest erupted last night as the Government rushed through legislation that could cut off internet users.

Opponents took to social media sites such as Twitter to revive the 2009 “blackout” protest that brought about the redrafting of the controversial illegal-file-sharing legislation.

The replacement Copyright (Infringing File Sharing) Amendment Bill, which aims to stamp out internet piracy, is expected to pass through its final stage today. The new law would allow copyright owners to ask for a six-month suspension of the internet accounts of those who repeatedly infringe by sharing protected material. …

In November the select committee suggested a change to allay fears. Although the legislation still has a provision that allows for disconnection, this can only be enacted on the recommendation of the commerce minister by an order in council. It must be proved that other sanctions such as warnings taken over a two-year period had not proved effective.

Up until this week, the Government had followed pretty much a model policy process in rewriting S92A, but the decision to pass it through the remaining stages under urgency has led to the backlash, and has in fact over-shadowed the many positive changes the bill makes to the current law. It is, to be blunt, an own goal.

It ironically happens the same day as my blog post with Grant Robertson about over-use of urgency – which the Herald has reported on.

I’m quite understanding the Government has a big legislative agenda and needs to use urgency to clear the order paper before the election. But in this case they could have avoided unnecessairly alarming people by not having included the third reading of the law in the urgency motion, and having that debated the following sitting week.

To put things in context, I want to cover the process to date on the bill, and also the policy changes from the current law which was passed by the previous Government and Parliament. The previous Parliament passed a law requiring ISPs to have policies to terminate Internet access of repeat copyright infringers. This provision was thrown out by the Select Committee, but stuck bakc in by then Minister Judith Tizard (and supported by both major parties – kudos to the Greens who voted against).

The previous law was unworkable and would have led to ISPs having to act as judge, jury and executioner and people would have lost Internet access on the basis of unproven and untested allegations. The blackout campaign (which I helped with) resulted in the new National Giovernment suspending s92A from coming into operation, and they set up a process to amend it.

As I said, the process up untul this week had been pretty first class. It was:

1. Set up a working group to consider options
2. Working group proposes a policy
3. Feedback sought on proposed policy, changes made
4. Minister releases cabinet paper on proposed policy
5. Feedback given to Minister on proposed policy, changes made
6. Minister introduces bill
7. Select Committee hears submissions
8. Select Committee makes changes and reports back
9. Further submissions are made to Minister asking for “technical improvements” by way of SOP at Committee of the Whole stage
10. Minister agrees and introduces SOP

As I said, up until now the process has been consultative, considered and in my opinion at every stage the bill has got better and closer to what Internet users want (but still not ideal – I will cover that later). The process has stretched out over two years, and has been far from rushed.

The bill was reported back from Select Committee on 3 November 2010. So it has been sitting them for five months waiting for a second reading. And then suddenyl we have second reading, committee of the whole stage and third reading in (almost) one day. This is what has led to the protests – the public don’t like having multiple stages of a bill gone through in one day.

As I said, Im not arguing using urgency to progress the bill – just don’t do all remaining stages in the one urgency session – that is hat has turned what should be a good news story into a bad news story.

Now let’s turn to the substance of the policy of the bill. As I said previously, it is a big improvement over the former law. And the really nice thing is that at every stage we have managed to get some further wins  but that is perhaps a reflection of how bad the old law was.

Here’s what I blogged in response to the Cabinet paper:

Good:

• Three notices needed within 9 months to go to Tribunal
• Users can stay anonymous and send response via ISP
• Users remain anonymous at Tribunal stage unless they lose
• Notices must be sent to ISPs within 20 days of alleged infringement, so a huge number can not be collated over months and then piled into an ISP
• Rights holders will have to pay a fee per notice, to cover their admin costs in issuing the notices
• Termination/Suspension is an option only for courts, not the tribunal (or ISPs)
• Termination is defined as suspension of that account for up to six months so law is clear
• A new definition of ISP to be drafted for S92A only, which will be narrower then current definition which includes employers, bloggers etc.
• ISP given statutory protection where they comply with the Act and any court orders
• Law not to come into effect until six months after amendments passed
• 92A to be available for P2P infringing only, and material under 92C excluded from gambit of 92A

Not so good:

• Time between 1st and 2nd notice can be as little as 10 working days and 10 again between 2nd and 3rd. That means you can get to strike three in a month.
• The fee rights holders pay to ISPs is set by Govt and will not include capital costs of modifying systems
• No sanctions on right holders for false notices
• Termination/Suspension is still an option

Overall I have to say a huge improvement over the original 92A, and even a slight improvement over the discussion proposal.

And then in response to the select committee:

Overall the changes made by the Select Committee to the Copyright (Infringing File Sharing) Amendment Bill represent an improvement. I’m especially pleased that they have effectively shelved for now the termination provisions, as I thought that would set a bad precedent. What are the changes?

• The definition of an ISP has been narrowly defined to cover traditional ISPs and exclude universities, busineses and the like who might provide Internet access but are not really ISPs. This is a good change
• The definition of file sharing has been tightened so it won’t cover downloading a single file off a website etc. Has to involve using file sharing technology. Also a good change.
• Those given notices have an extra week now to challenge them – also good.
• ISPs are no longer required to consider whether to accept, reject or refer on challenges to rights holders – all challenges get passed onto rights holders
• No lawyers at Copyright Tribunal hearings unless very good cause. Yay.
• Now for the bad one – they have recommended that an allegation from a rights holder will constitute burden of proof which must be rebutted. This is dangerous. Google has given evidence that around 30% of the notices they have received in the US are false or incorrect. I think the Copyright Tribunal should be left to its own devices to decide if an infringement notice from a rights holder meet burden of proof. Different rights holders may establish different levels of reliability. I hope the Government will consider amenemdents to this at committee of the whole stage.
• The committee have said that any damages should include a punitive element, and not merely compensation. I partially agree. Compensation only would not provide any disincentive. However any punitive damages should be linked to the level of lost revenue. I see it like the IRD with 100% penalties. If you download $100 of music then you could get fined say $200 and if you download $500 of movies then the fine may be $1,000. But if the punitive damages are unliked to the offending then you may have someone fined $15,000 for downloading one song.
• The provisions for a Court to order an Internet account to be suspended for six months have themselves been suspended. The Minister can activate them by order in council, but only if other penalties are seen not to have worked. Not a bad compromise. I’d rather no provision at all, but this is a lightyear better than what was in the law passed by Judith Tizard and Parliament in 2008.

 In relation to the third to last bullet point, we got a further partial victory on this with the Minister introducing a SOP to clarify that you don’t need to prove yourself innocent. Rick Shera has said that the SOP may not fix the problem entirely, but it is an improvement.

I said in my last blog post:

The Greens have said they support the bill going forward, but think Internet suspension should be out of there entirely – not just held in reserve. I agree.

The Greens have consistently voted against termination being an appropriate punishment, and I support them on this issue. Over the years I’ve had several meetings with initially Nandor and then Gareth Hughes on this issue, and they have been excellent to deal with.

Chris Carter and Hone Harawira also voted to remove termination, so pleasing to see them vote with their consciences outside a party whip.

Amongst the opposition, Clare Curran deserves recognition for moving Labour from having supported the original S92A, to a policy position where Labour is against termination as a response to copyright infringement. At select committee they did a deal with the Government where the termination option was “put on ice” as a compromise and I think that’s a good example of an Opposition being constructive and gaining improvements in a bill rather than just engaging in rhetorical opposition that achieves little.

It would have been nice to get termination removed entirely. But over the last two years we got it changed from ISPs terminating upon accusation, to having a tribunal process. We then get termination removed as a “punishment” for the tribunal and restricted to the courts only. And finally got even that suspended as a punishment, so that it can’t be used unless there is an order-in-council to reactivate it.

Overall I’d say those on the “Internet side” got around 80% of what we wanted, and the rights holders didn’t get anywhere near what they wanted. Their biggest “loss” is the fact they will have to remimburse ISPs for their costs if they want an infringement notice sent to their customers. this will provide a significant economic incentive for rights holders not to file hundreds of thousands of notices.

Overall I think Simon Power has done well on this issue, with the exception of the use of urgency for the remaining stages. The policy process of the last two years was good, and the changes made to the law have overall been beneficial.

Again it is a pity that what had been a good news story for the Government has turned into a bad news story, due to the use of urgency.

Once the bill passes into law today, that isn’t the end of the issue. MED will be working on some regulations around the law, and one essential one will be setting the cost per complaint notice that rightsholders have to pay to ISPs. If it is set too low, then it would punish ISPs and encourage a huge torrent of complaints.

There is likely to be some sort of consumer guide to the new law also, so people understand what may happen if they download copyrighted material without paying for it after 1 September.

In a first for the blogosphere, Kiwblog and Red Alert have teamed up to do co-ordinated posts on the use of urgency.

Both the current and former Governments have been criticised for their use or over-use of urgency – which is the provision that allows the House to sit for extended hours, and sometimes bypass the select committee process.

I wanted to do a proper study of the use of urgency since 1999, and Wellington Central MP Grant Robertson kindly agreed to help supply the information (which comes from the Parliamentary Library). We agreed that it would be good to do co-ordinated posts on this issue as we think that both parties should commit to less use of urgency.

It’s important to note that not all urgency is the same. Some uses of urgency (to sit on a Wednesday morning for example) are relatively benign, while other uses (by-passing select committees) are bad and should be done only when strictly necessary.

Hence, this analysis goes well beyond just the headline figures, and examines the use of urgency in depth.

There are effectively four parts to the parliamentary cycle. Year 0 is the brief period after an election and before the calendar year ends. Year 1 is the first full year of Government. Year 2 is the mid year and Year 3 is the portion of the third year that falls before an election. Generally we have compared Year 1s with Year 1s as they have different profiles. The year after an election is often very busy implementing election promises. Year 3 is often not so busy.

 The total number of hours the House sat was a record 624 in 2000 – the first year of a new Government. National’s total number of hours in 2009 was below the average for the former Government. However in 2010 the House sat for 600 hours – a record for Year 2, but only nine hours more than in 2001.

Where there is a difference is the number of hours spent in urgency. National had the most hours in urgency in both 2009 and 2010. However be aware that this includes time which would normally be ordinary sitting hours. For example the House normally sits for 6.5 hours on a Wednesday. Under urgency it sits for 13 hours. All of those 13 hours count as time under urgency, even though 6.5 of them were normally scheduled anyway.

As the sitting week is normally 17 hours, I’ve tried to estimate how many “extra” hours occurred each year due to urgency. They do clearly show that National has been using urgency the most to gain additional hours – 73 hours in 2010 and 66 hours in 2009. That is equal to almost eight additional weeks of sitting time over two years.

The House used to meet for 34 weeks a year, and in recent years has been 29 to 31 weeks. One solution to reducing urgency could be to schedule more sitting weeks.

Now let us look at what was done legislatively during these sessions

 The number of bills passed is not necessarily a good or a bad thing. If you like the bills it may be good, if you do not like the bills it may be bad. In terms of quality of law making, it is also subjective. If you pass very few laws it may indicate a Government not able to deliver policies, but if you pass too many laws they may not be getting the attention they deserve.

The total number of bills passed averaged 95 for Year 1s, and 113 for Year 2. Not a big difference between Labour and National Governments.

But it is in the area of bills passed without going through a select committee, that National should attract the most criticism. In 2009 and 2010 it passed 10 bills without giving the public the chance to submit on the bills at select committee stage. Sometimes there may be a good reasons to do so (Canterbury Earthquake etc), but the total level is far too high. The power to bypass select committees should happen very very rarely – it was only 1 – 2 times a year under Labour.

People unhappy with the level of bypassing select committees, should let their local National MPs know. Note that in 2008 National also passed seven bills into law without select committee – now again some of these could be justified as implementing clear election promises or a simple repeal – but 17 bills bypassing select committee in just over two years is frankly an outrageous level. National needs to not just look at these bills in isolation, but about the collective total and the message it sends. 

 As I said earlier, not all urgency is the same. Urgency sessions which extend past Thursday into Friday and Saturday are the “worst” as they seriously disrupt MPs scheduled activities in their electorates. The number of urgency sessions in 2010 is slightly more than in 2001 and 2004, but the number of Friday and Saturday sessions is reduced.

This indicates the Government is using urgency to extend sitting hours on Wednesdays and Thursdays, but generally avoiding Friday and Saturday sessions. This puts pressure on select committee attendance and means MPs have to stay at Parliament until midnight instead of 10 pm (or 6 pm on Thursday) but apart from that isn’t too bad.

Extraordinary urgency is very rare, as it needs the permission of the Speaker.

Urgency normally takes precedence over all other business, so it has traditionally meant that question time and/or private members day is cancelled. Indeed, it has sometimes been suggested that Governments go into urgency to avoid question time. But as you can see the number of question times is as high or higher in 2009 and 2010 than it was in 2006 and 2007. This is because the Government has deliberately sought to include provision for question time in urgency sessions. This is commendable, and it would be good to have standing orders change so that question time always occurs, regardless of urgency.

So what’s the overall position in terms of the current Government and urgency:

1. The total number of sitting hours in 2009 and 2010 are consistent with 2000 and 2001.
2. The number of hours spent in urgency were higher in 2009 and 2010 than any other year, reflecting an increase in the average number of hours the House sits each week, but fewer sitting weeks.
3. The total number of bills being passed is not significantly changing
4. National has so far passed 17 bills under urgency, bypassing select committees. This is a massive increase on past practice. Labour on average only passed 4 bills per term under urgency bypassing select committees. Such a high level of select committee circumvention undermines good parliamentary practice.
5. Thoe House has gone into urgency more often than in the past, but the number of urgency sessions extending beyond midnight Thursday have not increased.
6. Despite the increase in the use of urgency, the number of question times has stayed constant, as the Government has generally maintained them during urgency

Some thoughts or recommendations for all parties and/or MPs and to consider for the future:

1. That standing orders be changed so that a bill can bypass select committee stage only with approval of the Speaker (as is needed for extraordinary urgency).
2. That standing orders be changed so that question time automatically carries on, even if the House is in urgency
3. That the number of sitting weeks be increased, hence reducing the need for so much urgency, from 31 to 33 by reducing the number of two week recesses from five to three.
4. That standing orders be amended to distinguish between “extended sitting hours” which would merely extend the sitting hours on Wednesday and/or Thursday and full urgency (where you specify particular bills, and the House keeps going until they are disposed of)

 I quite like the suggestion Grant has made, that you could have the House sitting as the Committee of the Whole on Wednesday and Thursday mornings. This would free up House time more for first, second and third readings.

Parliament this week passed the Policing (Involvement in Local Authority Elections) Amendment Bill into law.

The bill amended the Policing Act to allow police officers to stand for local councils under the same rules as other state servants.

I supported the law change, and it was in fact in National’s 2008 election policy, so there is a mandate for the change. I believe Labour voted for the bill also.

So why am I unhappy? I am unhappy because the Government passed it through all three readings under urgency, without referring it to a select committee.

There are effectively two sorts of urgency. The most common use of urgency is merely to extend the sitting hours of the House from 6.5 hours a day to 12.5 hours a day. I have few problems with that, so long as the Government keeps question time going.

But urgency sometimes is used to avoid a bill going to a select committee, and to pass it into law within a day or two. This is a necessary power for bills that are genuinely urgent. Common use is excise tax changes and sometimes in the early days of a new Government it is justified so some policies can be implemented immediately.

I do not believe there was a good justification for the bill to bypass the select committee stage. It doesn’t matter that it was inevitable it would be passed anyway as both National and Labour supported it. We, the public, were robbed of the chance to submit on it. The select committees are our voice.

Without an upper or second house, they are even more important. Bypassing them should happen as rarely as possible.

Some may argue it had to be passed in time for the local body elections. I agree, but it could have been introduced to Parliament earlier, or the Select Committee could have been given a shorter than normal (six months normally) period to report back.

Now this is a very simple bill for which there was an election mandate. But using urgency to bypass select committee sets a bad precedent, when it is, in fact, not urgent.

Labour used urgency to do some outrageous things – the worse being a retrospective amendment to the Electoral Act to save Harry Duynhoven after he invalidated his seat. This is a long way removed from that, but it remains a bad thing to do. The select committee process should not be seen as an optional extra.

Some Left-wing bloggers such as No Right Turn and Labour MP Grant Robertson are crying foul over the government’s use of urgency and getting stuck into Leader of the House Gerry Brownlee.

Now Labour are being rather hypocritical here, and I will explain the different sorts of urgency. In essence there are four version of urgency. They are

1. Extraordinary urgency. This is incredibly rare and can only happen if the Speaker consents to it. It tends to be used for tax bills only, and means the House sits without pause (except meal breaks) until the bills covered by the extraordinary urgency are passed.
2. Urgency to pass a bill through multiple stages. This is when the House goes into urgency (which means longer sitting houses) to pass a bill through all stages, without referring it to a select committee. This is generally quite undesirable as bypassing select committee both robs the public of a chance to submit, but also means drafting flaws are less likely to be corrected.
3. Normal urgency. This extends the sitting hours of the House, and effectively cancels question time, but bills do not generally go through more than one stage at a time.
4. Urgency with question time.This is when the Government goes into urgency to extend the sitting hours, but modifies it so the House can still have question time every day. This reflects the importance of the Opposition being able to hold the Government to account through question time.

Now a lot of people don’t realise that the House normally sits for relatively few hours each week. On Tuesdays and Wednesdays it sits from 2 until 6pm, then 7.30pm until 10pm. On Thursday it sits from 2pm until 6pm.

That’s 17.5 hours. That sounds like quite a bit of time for the government to pass bills. But remember that Question Time happens each day between 2pm and 3.15-3.30. On Wednesdays there is a general debate between 3.30 and 4.30. And every second Wednesday is a members’ day, when the government can’t advance government business.

All this means that in a normal week, the government gets only around 12-13 hours (depending on how long Question Time lasts) to pass Bills. Every second week it gets only 7.5 hours! I won’t even get started on urgent debates (granted by the speaker), motions of condolence, etc, all of which take more time. Overall it tends to mean less than 10 hours a week on average to actually pass laws.

Urgency means that the House extend its sitting times. From the day after the motion is moved (so Wednesday if moved on a Tuesday) the House sits from 9 am to midnight, which is 13 hours a day excluding meal breaks.

In theory the House could sit until midnight Saturday, which would be 58.5 hours. In reality normally the House still rises on a Thursday, so the extra time gained is Wednesday and Thursday mornings plus Thursday evening.

This is what the government has been doing lately – just extending the hours on Wednesday and Thursday.

The problem of lack of time to pass Bills is not one that has just affected this government. That is why Labour is being totally hypocritical over the use of urgency. Grant Robertson and Chris Hipkins in particular know better given they were advisors to the last government. Dr Cullen regularly put the House into urgency between 1999 and 2008 and a helpful reader has done the numbers for me.

In the 1999-2002 Parliament, Labour took urgency 22 times and extraordinary urgency twice. 23 bills passed their 3rd reading under urgency. Indeed in Labour’s first year in office, they took urgency ten times.

In the 2002-2005 Parliament, Labour took urgency nineteen times and a massive 78 Bills passed their 3rd reading under urgency!

In the 2005-2008 Parliament, Labour took urgency ten times and 48 bills passed their 3rd reading under urgency.

Urgency was often moved in October, November, and December of each year under Labour, as the end of the year approached. That’s what this government appears to be doing as well. It’s nothing to do with poor House management – it’s simply extending sitting hours in the traditional pre-Xmas period.

The other thing that I want to stress is that urgency normally  means question time is not held, how ever National has consistently arranged urgency so that question time is still taken, ensuring Ministers remain accountable to the House. This was very rare under Labour.

I expect as the Parliamentary term goes on the use of urgency will decline a bit. Further down the track the government might like to take a look at the sitting hours and practices of the House. Should the House sit regularly on Thursday night for example? Is there potential to have the House sitting regularlyin the morning even while select committees are considering Bills?

Personally I would change Standing Orders also, to reflect the different types of urgency. I personally would not call merely extending the sitting hours “urgency” if question time (and members day) is retained. I would also look at whether the Speaker’s permission might be needed for urgency which is used to bypass select committee, to make it harder for Governments to do so.

I have no problems with the substance of the Parole (Extended Supervision Orders) Amendment Bill which allows child molestors to face parole type conditions for up to ten years after their sentence.

But I share the disquiet that this law change was done with no select committee hearing, especially when the Attorney-General has said that the law change was more than just fixing a technical error.

The best analysis of this comes from Claudia Geiringer on the Vic Law School Blog:

The government argues that in doing so, the Bill is simply re-instating the status quo that existed prior to 2007. It says that an amendment to the legislation in 2007 inadvertently restricted the reach of the regime, and that this Bill reverses the position. It seems that it is on this basis that the House gave leave for the Bill to be introduced and read on the same day. (Usually, Bills must sit on the order paper for three days following introduction before they can be read.) This avoided the necessity of the government bringing a contentious motion for urgency in order to push the Bill through, though presumably it would have done so had leave of the House been refused.

It is interesting that the House (including the Greens) gave leave for this to be done.

The Greens say they gave their blessing in this case because they had been told the legislation only made a technical change. Problem is, the government’s own senior law officer – the Attorney-General – disagrees. When the Bill was introduced, the AG tabled a report under section 7 of the New Zealand Bill of Rights Act 1990 in which he concludes that the Bill is inconsistent with a number of rights and freedoms contained in the Bill of Rights – the rights against retrospective penalties and double jeopardy; and the right not to be arbitrarily detained. His particular concern is a provision that will enable the Parole Board to impose conditions similar to home detention for up to 10 years following the expiry of the sentence. The AG does not agree that this power existed prior to 2007. He thinks the Bill before the House this week brings in that power for the first time. He also says that the breach of human rights is unjustifiable because there are alternative methods by which the same result could have been achieved. The Greens now say they feel they were tricked into supporting the variation from parliamentary procedure because they weren’t told in advance about the AG’s report.

The Greens could of course have asked to see a copy of the bill in advance before agreeing to grant leave for it to go through all stages.

I also suspect there was no “trick” involved. The Justice Ministry advice presumably was that this power always existed, while Crown Law disagrees (and the Attorney-General obviously concurs with Crown Law).  It is likely the AGs opinion was only known at the last minute, and that there was no deliberate holding it back.

Regardless there is a legitimate debate about whether this is a new power, being granted. And in that case, it should go to select committee to have that debate:

But whether the interpretation is right or wrong – and I haven’t had a chance to sort that out for myself yet – is not the point. This is a process question. When the Attorney-General issues a report under section 7 of the Bill of Rights, it is a signal to the House that there is an important issue to be addressed concerning the fundamental rights and freedoms of people within our borders. In New Zealand we haven’t opted for a system of judicial supremacy so our courts can’t strike down legislation that breaches our rights. Instead, we’ve trusted to the good sense and fair mindedness of our elected representatives. Our Bill of Rights asks them to be the custodians of the Bill of Rights, and a section 7 report is one of the triggers for them to take their responsibilities seriously.

The AG’s report is not the last word on the human rights implications of legislation – it is the first word. After carefully considering the matter, Parliament may disagree with the AG. It may consider that the AG has misunderstood the law; or that the limits on rights contained in the law are reasonable in light of the extent of the problem it’s designed to address. What is often lost sight of is that the Bill of Rights does not create absolute rights – it merely warns against legislation that breaches rights in a way that is unreasonable or unjustifiable.

If the system is working properly, though, what we should not be seeing is legislation being enacted in the face of a section 7 report without MPs and the public having had a proper opportunity to scrutinise it.

I concur. Personally I am one of those who thinks the law should be supported. I think child abusers do pose a different sort of risk, and post-release supervision is appropriate. In fact rather than being continued punishment, it may help save paedophiles from their own behaviour.

But that is a debate that should be held in a considered manner.

Hat Tip: Steven Price

I blogged this morning my concern that bills under urgency were not being made available to MPs at the first available opportunity, and that the rules should be changed, if they were preventing this.

It does seem perverse that the House votes urgency on bills before they are tabled, but Graeme Edgeler at Public Address supplies this transcript from Hansard:

Appropriation (Parliamentary Expenditure Validation) Bill
First Reading

Hon Dr MICHAEL CULLEN (Minister of Finance): I move, That the Appropriation (Parliamentary Expenditure Validation) Bill be now read a first time.

Dr Richard Worth: I raise a point of order, Madam Speaker. Would it not be appropriate for us to see this bill?

Madam SPEAKER: That is not a point of order. [Interruption] The bill is on the Table.

Hon Dr MICHAEL CULLEN: Speaking to the point of order, I say that a copy of this bill was made available to National Party members this morning before their caucus.

Gerry Brownlee: The bill was delivered to us halfway through our caucus this morning. One copy was given to me, and another copy was given to Dr Brash. There are only two copies on this side of the Table, and they were brought into the House just as Dr Cullen was about to speak. This debate should not progress until there are sufficient copies on the Table for every member to have an opportunity to read it.

Madam SPEAKER: I understand that copies of the bill are available for members on the Table.

Gerry Brownlee: I seek leave for the House to adjourn for 20 minutes while the bill is distributed.

Madam SPEAKER: Leave is sought. Is there any objection? Yes, there is. [Interruption] Members, please, we will preserve a little bit of respect and decorum.

Hon Dr MICHAEL CULLEN: Of course, when bills are moved for introduction and passing under urgency, they are tabled subsequent to the motion being approved.

So rather rich for Dr Cullen to be complaining, when he himself cited the procedure he is now complaining about.

I’ve previously blogged that passing bills under urgency without select committee scrutiny, will lead to flaws in the laws that will need to be corrected later.

It is of greater concern that the bills to be debated have not been made available to MPs at the first available opportunity. The Herald reports:

More pertinently, when it comes to advance copies, National says its hands are tied by Parliament’s arcane rules which do not allow the Government at this stage to “publish” bills before they are formally introduced into the House. Moreover, National says Labour is well aware of this.

If this is true, then the rules should be changed. I am sure all parties would agree. Allow the Government to put them up on the Government website as a proposed Bill, so MPs and the public can see it prior to formal introduction.

I understand that copies of at least some of the bills were distributed last night, which is good.

I’m not a fan of urgency being used to pass laws, wihout a select committee stage. However a freshly elected Government which explicitly campaigned on certain law changes is in a better position to justify its use to implement the promises they were elected on. So hopefully this will be the only use of urgency to bypass select committees, except for the normal budget measures. Urgency to extend sitting hours is a different issue.

However there will be a price to pay for using urgency to bypass select committees. Select committees do not just allow the public to have a say on a proposed law – they often lead to significant improvements in the law, closing down unintended loopholes. Hence by deciding to use urgency to pass some of their manifesto commitments, National does run the risk that some of those laws may need amending sooner rather than later.

I suspect they will only use urgency for the relatively simple law changes, to try and minimise this problem, but it will be interesting to see what bills are included in the urgency motion.

One of them looks to be the 90 day probation bill. As the Maori Party voted against it last time, I doubt they’ll be supporting the urgency motion for it – but generally they are not expected to do so.