Steve Baron: Urgency: An Attack on Our Democracy?

We have been hearing a lot of discussion recently about the 'Urgency' procedure being used far too often in parliament and how it is abusing our democracy. The New Zealand Herald published an editorial entitled Bulldozed rush of legislation makes mockery of democracy. The editorial raised fears that a huge amount of non-urgent legislation was being pushed through parliament under urgency without following the democratic process, saying, “It has adopted a bulldozing approach that is disturbingly at odds with democratic Government”. Pushing this legislation through meant there was no time for public debate or input.

Urgency is a process used in parliament to extend the sitting time of the House to enable it to complete certain business. A motion for urgency can only be moved by a Minister of the government.

In John Martin's book, The House, he says, “Urgency as a business tool has been available since 1903 and has become a key means of progressing Government business since 1929”. There are two main types of urgency. The first is normal urgency, which is when the sitting hours of parliament are extended and question time is cancelled. It is then possible for a Bill to be passed through all three stages without select committee or public input. The second is extraordinary urgency which is quite rare and means the sitting time of parliament can be extended even further, from midnight to 8am.

A good example was in 2010 when Environment Minister Nick Smith and Local Government Minister Rodney Hide took the extraordinary step of pushing Environment Canterbury’s Temporary Commissioners and Improved Water Management Act through parliament after a review of Environment Canterbury by former National Party deputy Prime Minister Wyatt Creech. This new Act replaced publicly elected councillors with seven government appointed commissioners and put off further elections until at least 2013. It also took away the right of Canterbury residents to appeal to the Environment Court. An outspoken critic of this Act was New Zealand's leading exponent of constitutional and administrative law, Canterbury University law Prof. Philip Joseph. He is also the author of Constitutional and Administrative Law in New Zealand. Prof. Joseph made a number of forceful statements to the press, such as, “[this Act] breaches several principles of law”, is “constitutionally repugnant”, “[contains] elements of subterfuge”, and is a “constitutional affront”. Continuing, he stated, “What I'm concerned about is the idea of proper process, and this was a departure”, and emphasised: “This didn't go through any select committee consideration, no submissions and no consultation. Why should urgency be taken on a matter such as this? The act was passed in haste, represented a disproportionate response to the issues that prompted the Government intervention”. Prof. Joseph was not the only outspoken critic. Jonathan Temm, President of the New Zealand Law Society, for the third time since the government of the day (National) was elected, took the rare step of criticising the government for an emerging trend in legislation being passed under urgency, which he argued was usurping the role of parliament and threatening the rule of law in New Zealand.

Temm had also previously raised concerns, like Prof. Joseph, regarding Environment Canterbury’s Temporary Commissioners and Improved Water Management Act. He then criticised the government over the Canterbury Earthquake Response and Recovery Bill. In an interview regarding the new Rugby World Cup 2011 legislation he said it gave the Minister almost royal powers over the event. To him this power was over and above the authorities already existing. The passing of absolute power to individual ministers is becoming a worrying trend. This particular Bill also prevented the judiciary from reviewing any decisions that were made by the Minister and was introduced and passed all in the same day which is not the process in most liberal democracies. Mr Temm said, “History shows unconstrained power is abused” and was concerned about the process being adopted. He argued that it was a subjective decision to remove democratically elected councillors, and this is what happened in the Environment Canterbury case. Attorney General Chris Findlayson responded in the same interview denying any such trend and that the Law Society's President's comments were simply hyperbolic and legal nitpicking because these new laws were only a stop-gap measure. He assured listeners that the legislation would be reviewed in due course. He also argued that removing the right of Judicial review was necessary as it could completely delay necessary work after an earthquake.

Regardless of which side of the above debate is supported, the fact that both the Law Society and an eminent professor have come out criticising the government should be of considerable concern to all New Zealanders and suggests the Urgency procedure needs to be scrutinised and that perhaps more checks and balances need to be placed on our elected representatives.