Standing Orders — Sessional

I move, That the following rules be adopted:

COVID-19 PUBLIC HEALTH RESPONSE ACT 2020

1 Interpretation

In these rules,—

the Act is the COVID-19 Public Health Response Act 2020

COVID-19 order is an order made under section 11 of the Act

day fixed for presentation is the day on or by which a committee must present a report to the House to comply with these rules.

2 Examination of COVID-19 orders

(1) The Regulations Review Committee must examine each COVID-19 order and report to the House before the expiry of the period that ends on the later of:

(a) six sitting days after the day on which the COVID-19 order was presented to the House:

(b) 16 working days after the day on which the COVID-19 order was presented to the House.

(2) Unless the Business Committee determines otherwise, no motion under section 16 of the Act relating to a COVID-19 order may be moved until after the earlier of the following:

(a) the presentation of the Regulations Review Committee’s report on its examination of that COVID-19 order:

(b) the day fixed for the presentation of the Regulations Review Committee’s report on its examination of that COVID-19 order.

(3) If the Regulations Review Committee recommends that a COVID-19 order be amended, then paragraphs (1) and (2) do not apply to an amendment to that order or a further COVID-19 order that is made only for the purpose of incorporating the committee’s recommendations.

(4) Standing Order 330 does not apply to a notice of motion under section 16 of the Act relating to a COVID-19 order.

3 Disallowance or amendment of COVID-19 order

(1) This rule applies to a notice of motion to disallow or amend a COVID-19 order only if that notice of motion is given by a member who, at the time the notice of motion is given, is a member of the Regulations Review Committee.

(2) After a notice of motion to disallow or amend a COVID-19 order is given,—

(a) that notice of motion must be dealt with by the House no later than the sixth sitting day after the day on which the notice of motion is given:

(b) if that notice of motion has not been dealt with by the House within five sitting days, it is set down on the Order Paper for the next sitting day as the first item of business after general business.

(3) If more than one notice of motion to disallow or amend a COVID 19 order is available for consideration on a sitting day, then those notices of motion are set down as a single order of the day and are debatable together, with their questions put separately.

(4) Standing Orders 67 to 72, 76, 101, 329, and 331 are read accordingly.

4 Continuation of Act

(1) Any notice of motion to continue the Act under section 3 stands referred to a select committee. The notice of motion is allocated by the Clerk to the most appropriate select committee for consideration.

(2) The select committee must report to the House on any notice of motion that has been referred under paragraph (1) no later than the first working day 28 days after the day on which the notice of motion was lodged.

(3) No motion relating to the continuation of the Act may be moved until after the earlier of the following—

(a) the committee to which the notice of motion was referred reports, or

(b) the first working day after 28 days have passed since the day on which the notice of motion was lodged.

5 Select committee reports set down

A select committee report on a notice of motion under rule 2 or 4 is set down for consideration with that notice of motion.

This motion puts in place a series of rules regarding how we are going to be dealing with COVID-19 Public Health Response Act orders in future in this term of Parliament, and it mirrors one that was put in place in the last Parliament. The regulations review process that we have in this Parliament is a very good one. Those members who have sat in this House who have sat on the Regulations Review Committee will acknowledge that it’s actually a very thorough process, and it is one that brings some accountability to the making of rules that has been delegated by this House to a member of the executive through an Order in Council. But it does not move quickly, and, with regard to the orders that are issued under the COVID-19 Public Health Response Act, we do need to have a mechanism that moves a little bit more quickly than that. So this Sessional Order that we are putting in place means that each order that’s made under the Act will be reviewed by the Regulations Review Committee by the later of six sitting days or 16 working days after it is presented to the House, and the House would not be able to approve an order made before the Regulations Review Committee has reported on it.

An accelerated disallowance and amendment procedure is also put in place by the Sessional Order. That’s really important because, if orders are not confirmed by the House, they ultimately expire, and in the next motion that I’ll be bringing before the House, I’ll talk a little bit about the orders that we have made under this. I think members across the House would find it difficult to disagree with any of the orders that have been issued under the Act to date, and, in fact, some would probably argue that some of the orders should have gone further than they did. In fact, I think the contribution from Mr Bishop where he said that he opposed the ability for the Government to make the orders but didn’t think the orders had gone far enough illustrated that very point. But I do note that the Regulations Review Committee has members from the four biggest parties in the House. It does not have a majority of Labour members, and I do point out that any member of the Regulations Review Committee can in fact move the disallowance of a regulation made. So it is important that that process continues with the integrity that, I think, it has developed over the time that that committee has been in place.

The other thing that this motion, this set of rules, does is put in place a new mechanism to deal with any further continuance of the Act. I want to thank David Seymour for his constructive comments. One of the reasons that we have not continued the Act for a longer period of time is that I do believe that Parliament should have the opportunities to do exactly what David Seymour has suggested the ACT Party will do, which is to monitor the implementation and the use of the Act, and if Parliament as a whole feels that Government has gone too far, Parliament should have the ability to do something about that. So we have now just extended the Act until April. Under these rules, Parliament will then have to consider a motion to extend it through a select committee process, and we will then have to come back and we’ll have to have another debate in the House, where members will be able to do what David Seymour just did, and say whether or not they feel that we are using our powers in the Act appropriately. I don’t think that we should extend—even when we do it next time—the Act for a very, very long period of time, given that things can move quickly in the COVID world and, at some point, I think, we all hope we will be at the point where we can let the Act lapse because the risk will have gone and we can then start to revert back to normal.

Parliament, at that point, will need to turn its attention to what should happen with future pandemics, because I think we’ve discovered that our epidemic response legislation isn’t as good and as useful as it needs to be, and we do need to think about some enduring arrangements. They may be modelled on this; they may not be. But I think it is important that, while these extraordinary powers are in place, Parliament has the opportunity to check back in on them regularly. The procedures that we’re putting in place through this motion that I have put forward allow us to do that.

The question is that the motion be agreed to.

Can I echo the words of the Leader of the House and say I wasn’t aware it was your first time in the Chair, Madam Speaker, and congratulate you for your elevation—well done. Thank you to the Leader of the House for that very sensible contribution, with which I agree wholeheartedly. You know, in the Ministry of Foreign Affairs and Trade (MFAT) they—

💬 Hon Chris Hipkins: Even the bit where I slagged you off?

Ha! Oh, you can’t have it all your own way. In MFAT, they talk about hardship postings and postings that no one wants to go to, and, you know, the Regulations Review Committee has sometimes been called the hardship posting of the Parliament.

💬 Hon Chris Hipkins: That is an outrageous statement.

I said it’s sometimes been called that—sometimes been called that. When I became an MP six years ago, Gerry Brownlee rang me up. He was Leader of the House, and he said, “Mate, how do you feel about regulations review?”, and I was actually really excited about it, because as a lawyer—or at least someone who has a law degree; shouldn’t call myself a lawyer—someone who has a law degree sans practising certificate and someone who really enjoyed public law at university, I was really excited to be on the Regulations Review Committee. It was chaired by the Hon David Cunliffe, who—I think it was a hardship posting for him. He had been exiled to chair regulations review. The Hon David Parker sat on the committee as well, and it was a great committee.

The Leader of the House is absolutely correct that it does critical work, because Parliament actually, over time, delegates quite enormous powers to rule-making bodies—to bodies other than themselves—and the exercise and the scrutiny of those powers is of critical importance. It’s an under-appreciated and probably underutilised committee, I would say, and, basically, it operates like a court. You can turn up and, basically, take a judicial review claim before the Regulations Review Committee. What I don’t understand is—people don’t realise—you basically get a free judicial determination of your claim by lawyers acting for Parliament, and it’s a lot cheaper than going to court, that’s for sure.

💬 David Seymour: There’ll be a rush now.

ASSISTANT SPEAKER (Hon Jenny Salesa): Order! If I can have your colleagues, please—I can’t really hear the contribution of Chris Bishop. Thank you.

I’m not entirely sure you’re missing out on much, Madam Speaker, but I thank you for your forbearance.

But this is just suffice to say that we support the motion which will give the Regulations Review Committee more power of examination, and we also support the move that the Government has indicated around the extension of the Act. So I concur wholeheartedly with what the Leader of the House has said. His commitment to parliamentary sovereignty and to the rule of law, in this occasion, is very welcome.

This motion is a great opportunity for New Zealand, for this Parliament, for democracy, and for the Regulations Review Committee to take the mantle it has long deserved in our constitutional arrangements. I feel that with Chris Bishop’s recent advertisements of free judicial hearings, the Regulations Review Committee, which we now know no longer has David Cunliffe as the chair, may be about to reach levels of popularity that not even its most hopeful architects could ever have imagined.

But I do think the opportunity for future orders in relation to the COVID-19 Public Health Response Act is actually a very good initiative. It will allow a greater amount of transparency, an understanding of why the Government is restricting New Zealanders’ freedoms, it claims, in the public interest.

It has to be said that that level of parliamentary scrutiny has not been a feature of the Government’s early COVID response. I feared that it might not be a feature of the Government’s future COVID response when I heard the Leader of the House speak earlier portending when we decide to extend this, and soon we will make the following decisions. It appeared that he hadn’t contemplated that the House actually needed to contemplate and make a decision. He seemed to be taking Parliament for granted, and doing it in a subconscious way, which is how the worst tyrants always start. So we were somewhat concerned at that point, but he’s made good with his later addresses and contributions, and commitment to making sure that the Regulations Review Committee can play an important role here.

Indeed, it’s worth noting that through the COVID period, in the initial lockdown, there were extensive debates, some of them behind closed doors in a previous Parliament that can now be more easily discussed, where the Speaker of the House came to a meeting armed with a list of dates when other Parliaments around the world would be shut, as if that was justification for our Parliament to be shut too. The argument was made by some members of that Business Committee that, actually, we shouldn’t aim to be average, we certainly shouldn’t aim to be the worst; New Zealand should aim to protect parliamentary democracy and scrutiny at all times, and fairly balance public health risks with the right of New Zealanders to elect a representative, to speak on their behalf and scrutinise the actions of the executive for them. That is the context and the contrast into which this motion passes today.

The Government has not always got it right in relation to the level of democracy and parliamentary scrutiny the New Zealand people deserve through the COVID response. But this motion today is an example of where they are rapidly improving. That is something that I think we should welcome as a Parliament. I am very pleased to say that ACT will be supporting this motion. It’s nice when we can all agree. Thank you, Madam Speaker.

Oh, thank you very much, Madam Speaker. I hadn’t particularly intended to take a call, but seeing as we are entering the finest hour of the Regulations Review Committee as an integral part of our constitutional arrangements, I felt it incumbent upon me as the newly installed chair of that fine body to rise and make a contribution.

💬 David Seymour: I take it all back.

Mr Seymour takes it all back. I just wanted to get—

💬 David Seymour: People would rather pay to go to court.

Well, I’m disappointed to hear Mr Seymour is continuing this contribution, because we had almost a thing going where we had Chris Hipkins, Chris Bishop, and, with one non-Chris interruption in the form of Mr Seymour, we’ve gone to Chris Penk. I look to Mr Faafoi to, potentially, try and help us break some kind of record, and by my right is Mr Doocey, who’s not a million miles away from looking very much like another Chris—Mr Luxon.

So, anyway, speaking of names and forms of address, I will say it’s heartening to hear the Regulations Review Committee referred to as something like a court. I will be pitching to be referred to as “Your Honour” in future meetings thereof. But, in fact, on the subject of titles, we do have one person who boasts the title “the Hon”, so I acknowledge Eugenie Sage as a former Minister among our number. So I have said to her that her contribution in terms of that committee will be very welcome. She will have seen regulation-making power from the other side, so to speak, and just to acknowledge briefly, for the record, seeing as I have this opportunity, the other members of that august body that is the Regulations Review Committee.

As others have pointed out, we’ve had a pretty good dissertation on the role of that select committee and, indeed, all select committees scrutinising the actions of the executive. So I won’t comment further on the motion itself, except to acknowledge the importance of what we’re doing here tonight, despite all appearances, and look forward to the continued passage of these types of orders. Thank you.

Motion agreed to.