Fast and loose? Coalition's urgency makes for riskier lawmaking

Analysis - "Isn't it great?"

That was the prime minister's response to Morning Report's Corin Dann on Tuesday when he pointed out the average number of bills passed under urgency across an entire term is 10, and Christopher Luxon's coalition has "done 14 in seven weeks".

If the metric Luxon is testing himself against is volume and speed then he has passed with flying colours, but there's a question as to whether passing so much legislation without the usual Parliamentary checks and balances passes the democratic test.

Phil Smith, the editor of The House, detailed the use of urgency in a piece for RNZ last week, revealing that 14 bills have passed under urgency in seven weeks - none of those bills were sent to a select committee.

"That amount of urgency is not normal," Smith wrote.

"By comparison - in a study from Victoria University of Wellington of 24 years of New Zealand's parliament (from 1987 until 2010), the average number of bills passed through all stages under urgency was 10. That's 10 per Parliament! So we've roughly hit that average in seven weeks with more than 90 percent of the Parliament yet to go."

The crucial bit of the legislative process that is missed by the use of urgency is when a bill is referred to select committee.

That stage is when the public, including community and interest groups, lobbyists, and experts, can make submissions to MPs to consider different perspectives on the legislation before them.

Select committees can take about six months, sometimes longer depending on the number of submissions received.

That step does ultimately slow down the legislative process, which is why governments like to skip it if they're trying to progress something at pace.

But the select committee process serves a purpose, not only because it allows scrutiny from MPs of all parties, but because it often leads to better legislation.

Take David Seymour's 'End of Life Choice' bill, for example.

It was a lengthy public consultation process and a lot of changes were made to the legislation to make it more palatable to a wider section of New Zealand.

The legislation that is now enacted in law will stand the test of time because of the compromises made by Seymour to alleviate concerns from MPs of all political parties and those members of the public who submitted.

While it may have watered down the original intention of the bill, it produced changes to the country's euthanasia laws that are overwhelmingly supported.

To achieve this the select committee hearing submissions had to extend the deadline by an extra six months, meaning it travelled the country -hearing from the public from May 2018 until March 2019.

At the time the 39,159 submissions received broke all records - typically Parliament had received between 30,000 and 40,000 submissions each year in total.

That record has since been smashed, with 107,000 submissions received in 2021 on the bill that banned conversion therapy.

All of this tells the story of how increasingly the public is engaging with law-making.

There's a purpose to the select committee process and there are MPs who are now senior Cabinet ministers who have defended the right to scrutiny when they were in opposition.

Every government has used urgency and every opposition has opposed it for one reason or another, and to significantly increase the amount of urgency used and the number of bills pushed through it only raises more questions about the checks and balances it deliberately avoids.

Victoria University law professor Dean Knight, who specialises in public and government law, has commented at length about the "worrying practice and logic" around using a 100-day plan as a reason for extensive use of urgency.

Knight says the claim that the government has a mandate for abnormal, expedited law-making is "nonsense and illogical".

He says circumventing select committee scrutiny and public submission should particularly be avoided when it comes to new public policy and law, as opposed to simply repealing recent legislation.

While urgency has often been used for all stages, a breakdown by Newsroom reveals a total of 61 stages of 21 bills have been progressed using urgency in the government's first 100 days.

The prime minister has pushed back on any suggestion the legislative tool has been used too frequently, or that the desire to tick off the Coalition's ambitious 100-day plan has been put ahead of Parliamentary scrutiny.

As recently as Sunday, the government announced landlords will once again be able to deduct interest costs on their mortgages against rental income.

The changes are being added to the taxation bill currently before select committee but public submissions have already closed, meaning there won't be an opportunity for renters or landlords, or anyone else, to submit on the reforms.

On Tuesday Corin Dann put to Christopher Luxon whether moving fast on the coalition's plans, like the $2.9 billion tax reduction for landlords, means it is "somehow absolved from the normal parliamentary scrutiny".

"The executive makes decisions, Parliament scrutinises it, that isn't happening with a very expensive piece of legislation," Dann said.

The response from Luxon was that he "completely disagreed".

"We've been really straight up from the beginning when the previous government introduced this legislation to the Parliament. We opposed it, why? Because it's a dumb idea," he said.

Dann countered that MPs scrutinising legislation might mean they "find mistakes" and it's an "ability for people to make submissions".

Luxon reiterated National had opposed it in opposition and campaigned on the changes during the election.

"We won the election and have a mandate for it, people understand this is our policy and we're implementing it," he said.

Where it makes sense, Luxon says the coalition will "move with great speed".

The strongest instance where a mandate for change is missing is in the case of smokefree laws, which the previous Labour government introduced and were due to come into effect later this year.

National agreed as part of its coalition deal with New Zealand First to get rid of a ban on selling tobacco to anyone born after 1 January 2009, put a stop to a reduction of the number of outlets selling tobacco to 600 and halt plans to remove 95 percent of nicotine from cigarettes.

None of the three governing parties openly campaigned on these changes.

With the coalition's first 100 days now complete ministers are turning their attention to other programmes and reforms.

Given the amount of urgency used to date already far exceeds the average, the spotlight will stay on what it is and isn't used for across the rest of the parliamentary term.

Based on the prime minister's unapologetic rhetoric today, the practice looks set to continue.