Democracy in New Zealand is not inevitable

Helen Clark Foundation Honorary Senior Fellow Jonathan Boston ONZM highlights potential reforms to protect democratic governance in New Zealand, as Parliament reviews its Standing Orders. This piece was originally published in Newsroom.

Public trust in democratic institutions has been declining in many countries for at least a decade. Correspondingly, populist movements and autocratic tendencies have been on the ascendancy.

New Zealand is not exempt from these trends.

Thankfully, democracy is not in immediate peril locally, but there are certainly grounds for concern. After all, democratic governance is not inevitable. Over the past century, many democratic experiments around the world have failed. Alternatively, they have been corrupted and degraded. For democracies to flourish and remain legitimate, credible, and effective, they must be responsive to changing circumstances and evolving public expectations.

Ongoing renewal and revitalisation are thus essential, as is active and informed citizenship.

The most crucial democratic institution in New Zealand is our Parliament. By the standards of most comparable democracies, however, it is small and under-resourced. Importantly, too, the parliamentary term is short, and there is no upper house.

The growing pressures on our MPs and legislative processes are readily apparent. Governments of all persuasions continue to make extensive use of urgency to enact legislation, regardless of whether there is a crisis. In recent years, many bills have been enacted with no opportunity for serious public debate. In other cases, select committees have been overwhelmed with public submissions. This has forced the rationing of oral submissions, with most individual submitters allocated only five minutes to make their case, if indeed they are heard at all.

Proper legislative scrutiny and political accountability are not enhanced by such arrangements; nor is public confidence in our democratic processes. Our Parliament needs reform and fortunately an opportunity for improvement is currently available.

Every three years our Parliament reviews its Standing Orders. These are the comprehensive and permanent rules – or the ‘standing’ ones – that govern how the House of Representative and its many committees conduct their legislative, scrutiny, and representative functions. The Standing Orders cover such matters as the Opening of Parliament, the election of the Speaker, law-making processes, the behaviour of MPs, and parliamentary privilege.

The review of Standing Orders is overseen by the Standing Orders Committee. This is chaired by the Speaker, Gerry Brownlee, and includes representatives of each parliamentary party.

The review of Standing Orders by the 54th Parliament commenced in late July, with public submissions due by September 25. This year the committee has indicated it will focus on three matters: reviewing how Parliament undertakes its financial scrutiny functions following the changes introduced at the end of 2023; considering how the House could improve its consideration of legislation, especially in the context of a major increase in public submissions on bills; and exploring possible ways to enhance how the House oversees the making and review of international treaties.

Each of these topics deserve proper investigation and public debate. A variety of reforms are available. Here are a few suggestions.

First, the use of parliamentary urgency needs constraining. Ideally, urgency should only be used in a genuine emergency, when there is clearly insufficient time to adopt normal legislative processes. As Sir Geoffrey Palmer has suggested, Standing Orders should incorporate clear criteria for determining the circumstances in which urgency is justified.

Further, the decision on whether these criteria have been satisfied should reside with the Speaker, on advice from the Clerk of the House and following consultations with the leaders of all parliamentary parties.

Second, as highlighted by the Legislation Design and Advisory Committee, there is a case for using exposure draft bills more often to improve the quality of legislation and enhance public consultation.

An example of such a bill was the release in mid-2021 of proposed sections of the Natural and Built Environments Bill, as part of the Labour government’s resource management reforms. Potentially, governments could be incentivised to publish exposure draft bills by enabling normal select committee processes to be shortened when a pre-legislative process of this nature has been adopted.

Third, reforms are required to address situations where the volume of requests for oral submissions plainly exceeds the available time for public hearings. One option, in such situations, would be to enable the parties represented on the relevant select committee to select a limited number of oral submissions they wish to hear. For submitters wishing to be heard who are not selected via this route, a random selection process could be implemented, with the committee agreeing to hear up to, say, 30 or 50 randomly selected submissions.

Additionally, committee staff could be asked, based on the analysis of written submissions, to identify those covering matters that might not otherwise receive adequate attention in oral hearings. Committee members could then decide to hear these submissions orally or simply read them. Aside from this, committees should be encouraged to invite those with relevant expertise to appear and respond to questions.

Fourth, under current arrangements, ministers and under-secretaries are sometimes appointed to serve on subject select committees. This is generally undesirable. There should be a clear separation of executive and legislative roles when legislation is under consideration by select committees. Standing Orders should reflect this principle.

Fifth, our MPs need greater access to independent expertise, particularly on economic and scientific matters. Possible new institutions could include a parliamentary budget office (or officer), as in Canberra, and a parliamentary office of science and technology, as in London. The Standing Orders Committee needs to investigate such options and learn from overseas models.

Finally, with the nation’s population growing and the complexity of governance increasing, there is a strong case for increasing the number of MPs. That of course is beyond the remit of the Standing Orders Committee. But it is a matter that deserves proper public debate, all the more given the growing threats to democratic values and processes internationally.

Jonathan is an Emeritus Professor of Public Policy in the School of Government at Te Herenga Waka Victoria University of Wellington. In July he was appointed Honorary Senior Fellow at the Helen Clark Foundation.