Speaker’s Rulings — Admissibility of Minister’s Amendments—Criteria

Yesterday, I said I would return to the House in response to a point of order by the Hon Kieran McAnulty on the basis of the ruling I made to the Minister’s amendment to Schedule 2 of the Fast-track Approvals Bill.

There’s been a lot of comment about how my decision on this matter differed from the Chairperson of the committee of the whole House. I would like to emphasise that the Chairperson was applying the rules and precedents available to her at that time. It’s the Speaker’s role to determine questions that arise about interpretation and application of the Standing Orders—Standing Order 2. In this case, I have now set out three tests for future application when determining whether provisions are private legislation, and I have determined that the legislative effects of a provision should be seen in the broader context of the bill’s proposed provisions. This does not mean that policy trumps the Standing Orders.

As always, I was guided by rulings of Speakers in the past about the classification of legislation. As I said yesterday, there are very few Speakers’ rulings on this issue—only two that touch on it more explicitly than others, and I considered them, alongside chapter 34 of Parliamentary Practice in New Zealand.

Those Speakers’ rulings are 109/2 by Speaker O’Rorke in 1884, where the issue was the Government of the day providing a guarantee to a private corporation. It was deemed to be a Government bill. Speakers’ ruling 132/4, reiterated by Speaker Hunt in 2003, Deputy Speaker Hartley in 2006, and Speaker Mallard in 2018. It talks about how “Generic amendments, even if of limited application because there are few such establishments, are permissible.”—in this case there were many establishments—and make the bill a Government bill and the amendment permissible.

In addition, I looked at Speaker’s ruling 109/6, Speaker Smith in 2009, and Speaker’s ruling 110/1, Barnard in 1939. Speaker Smith’s issue was a local bill enacted in the 1800s but specifically for a body—Christ’s College, Canterbury—and their needs; very specific. It was introduced as a Government bill, I understand, but then deemed to be private. Speaker’s ruling 110/1, Speaker Barnard in 1939—he ruled that if a licensing body wanted to license certain activities outside of the general law that were permissible in the general law, then in fact that would be a private bill and not a Government bill.

So it was a combination of all of those things, in conjunction with Chapter 34 of Parliamentary Practice in New Zealand, that guided my thinking for this matter.

From my perspective, I have gone further than Speakers in the past, in outlining processes for making the decision, by describing in detail the three tests for whether legislation is to be considered in the nature of private legislation. I hope these will help guide future Speakers in their responsibilities in classifying legislation, as was my responsibility under Standing Order 257(2).

I do not say that past Speakers were incorrect in applying the tests to specific bills and amendments. They are considered; the tests are based on previous decisions. I found the past decisions very useful to consider when applying the tests to the particular matter. This was not like any other bill, other than the COVID-19 legislation, which was also a guide—remembering that no one in this current bill actually gets any consents. That’s a policy matter and wasn’t part of the consideration.

The three tests are: does the proposed provision affect a particular person or body in a private capacity? Does the proposed provision affect the person or body but not affect all others belonging to the same category or class? And does the proposed provision have a legislative effect that gives rise to a particular benefit or interest for the person or body?

As I have stated repeatedly, I think that the legislative effect was not sufficiently clear as to give rise to a particular benefit for the authorised person for a listed project, as distinct from referred projects permissible in the bill.

I reiterate that my decision was made subject to the three tests used by previous Speakers and set out now by me, in slightly more specific fashion and in a context that I think allowed the bill to progress.