Fast-track Approvals Bill

Mr Speaker, I’m directed by the committee to obtain a ruling from you on the admissibility of the Minister’s amendment to list projects in Schedule 2, as set out on Amendment Paper 238.

When commencing the debate on Part 1, I informed the committee that Schedule 2 is debatable with that part. I told the committee that the Minister’s amendment to the schedule is out of order as in the nature of private legislation. This is because many of the projects are listed under authorised persons in a private capacity, and the legislative effect would appear to be of benefit to the specified persons, which would differ from other persons who apply under the bill or fast-track approval. On that basis, I informed the committee that the amendment was out of order.

A point of order has been raised, and I have been asked to obtain your ruling on this matter now.

Thank you, Madam Chairperson. Is there anyone else who wants to speak to the point of order?

Speaking to the point of order, the Government profoundly disagrees with the ruling, and it is our submission that the amendments in Amendment Paper 238 in my name are matters of public policy as described in Standing Order 257 and, therefore, more than appropriate for consideration as an Amendment Paper. I would point you, sir, to the example of the COVID-19 Recovery (Fast-track Consenting) Bill considered by the last Parliament, which also included a list of projects in its schedule, with some promoted by private entities. Projects were also added to that bill via Amendment Paper, like the Government is proposing here. That bill was accepted as a Government bill and passed by Parliament.

Rather than focusing, sir, on whether or not the amendment in question confers a private benefit, I would submit to you that Standing Orders require the focus should clearly be on whether or not this is a matter of public policy. The intent of the Cabinet and the Government is clear. The projects have been listed for their ability to deliver significant regional and national benefits, and the overall value of them in terms of economic and social benefit. The Government is listing these projects, or attempting to list these projects, in order to generate significant regional and national benefits to the country. That is clearly a matter of public policy.

Private bills are an ancient parliamentary power that have enabled Parliament to address private wrongs that are done to people or where a private individual or company sought to be exempted from compliance with a law that caused them acute hardship. But maintaining this form of direct access to Parliament by private individuals should not come at the expense of Parliament’s sovereign power to legislate upon matters like this. The Government’s strong view is that if the position is taken that the Government is unable to propose legislation like this to Parliament, it will set a dangerous precedent that will fundamentally undermine the executive’s power to progress matters of public policy through legislation and will potentially lead to perverse outcomes.

To give you an example, sir—and this illustrates the silliness of the current proposition—if this interpretation is correct, a wind farm listed in the Fast-track Approvals Bill by Government-owned Meridian Energy would be able to be listed because it is a 51 percent - owned Crown mixed-ownership company; however, a hydroelectric power scheme seeking to be listed in the bill by privately owned Contact Energy, notwithstanding the fact that it used to be Government-owned, would not be able to be listed because it is a listed public company, despite the reason for the listing being the exact same reason, which is the benefits that accrue from having renewable energy.

Past Speakers’ rulings support the Government’s position; I’d refer you to 109/5: this concerns a Government bill relating to the Bank of New Zealand Inc. Speaker O’Rorke ruled that, despite the bill benefiting a private corporation, because the bill was an amendment to a public bill pertaining to a measure of public policy, it was therefore not ruled to be a private bill. In the past, it is clear the same public policy test that the Government holds to has been used in determining the classification of bills under Standing Order 257.

For example, the Christ Church Cathedral Reinstatement Act 2017 and the Riccarton Racecourse Development Enabling Act 2016 dealt with privately owned buildings, land, and facilities. Perhaps a more apposite example that members will be familiar with is the Dairy Industry Restructuring (Fonterra Capital Restructuring) Amendment Act 2022, which supported the introduction of Fonterra’s new capital structure. These were all deemed to be Government bills as per the Standing Orders.

The Government’s profound view is that the Government is entitled to put legislation of this nature before the House, and we ask you, sir, to overturn the ruling of Madam Chair in the committee of the whole House stage.

Thank you, Mr Speaker. We profoundly disagree with the position of the Leader of the House, particularly his statement that if this ruling by the presiding officer were to continue, that that would set a precedent. That is incorrect. We have three instances here—in 2003, 2006, and 2018—when this ruling was made and upheld.

In fact, we would put to you that if you were to rule against the presiding officer—and then, in doing so, against the advice of the Clerk—that would actually be unprecedented. For a Speaker to be recalled and say that both the Clerk and the presiding officer have this wrong would actually have significant consequences to this Parliament and indeed raise the question whether a private bill could continue to be one of the three types of bills that this House considers.

We are unable in this Parliament to consider hybrid bills. They do in the House of Commons in the UK, but here it is quite clear that it is either a member’s bill, a private bill, or a Government bill. In fact, Speaker Mallard made a detailed ruling on this in Speaker’s ruling 108/2, referring to Speakers’ rulings 118—and others, in fact—which state that matters that should be in private bills cannot be introduced into public bills by way of amendment.

It’s quite clear that the distinction here is when a bill will materially benefit an individual or an organisation. That is the Clerk’s advice, and it was outlined very clearly in Speaker Mallard’s ruling around the Overseas Investment Amendment Bill, that matters that should be in one kind of bill cannot be introduced to another—and it appears that is the basis of the Clerk’s advice.

To rule against them, sir, we’re very concerned about what impact that would have on the role of private bills moving forward. We’re concerned about what that would say about your stance on the Clerk’s advice—given that I’m not aware of any instance, our researchers aren’t aware of any instance, ever in the New Zealand Parliament where the Clerk’s advice on matters such as this, when the Speaker’s been recalled, has been overruled.

We have other points that we wish to make, sir, but I’m not sure we need to go on right now. That’s all I wish to put forward at the moment. Others may wish to have other points to make.

I do want to just speak relatively briefly on the importance of the question before the House today, because if we are going to today decide that matters of a private nature which confer private benefits can be lumped into public bills, we are fundamentally changing some of the constitutional precepts which underpin this Parliament. The Hon Kieran McAnulty has alluded to the fact that there are very distinct bills and the twain do not meet, but the really important thing here is that this Parliament has developed a procedure where if there is a petition of a private person to right some wrong or to confer some benefit, then there is a very clear private bill procedure.

The Leader of the House alluded to the ancient origins of private bills, and he’s right, and they actually come from the ability to have judicial questions determined in this House, which is actually very apposite for this bill, because there are a number of private interests in that schedule who have gone through the courts and have been declined permission. I know a development in Ōhoka in Canterbury is one of them. They have lost in the courts, and by coming into this schedule, they are, essentially, trying to use this House as a final court of appeal to confer a private benefit. Now, that is possible under a private bill. This House should thoroughly interrogate whether there are good reasons to change the law for a particular person in that instance—that’s what a private bill does. A public bill is separate for a reason; it changes the law for everyone.

For the Leader of the House to loosely wave at the private benefit of hydro projects, it doesn’t answer the real question. If we want to go through that schedule one by one and say which belongs within a public bill and which belongs in a private bill, we are prepared to do it, but to slip in private projects which have been declined by the courts, and to overrule the courts in a private contest is more than just procedurally poor, it changes what we do here.

I’m reading here from Professor Philip Joseph’s text on constitutional and administrative law, where he makes very clear the fact that private issues are quasi-judicial, because they affect a private right, not the law for all of New Zealand. It would be procedurally an outrage, frankly, to accept this schedule, but that is the least of the problems, because constitutionally it would shake the very foundations of what we do in public bills. That’s why Dr Wilson gave the advice that he did, and that’s why the Chair of this committee agreed with Dr Wilson. My very clear view is that both procedurally and constitutionally, a separation is needed between private interests and public interests, and this has been muddied horrifically in this schedule. I implore you, Mr Speaker, to uphold the Chair’s ruling in this case.

Before I call any other member, can I just ask that contributions are confined to the question that’s in front of us. Matters of public policy, or concerns about particular items that might appear in the schedule, are not relevant to the question that I’m being asked to judge today. While I’m sure some of the views that have been expressed are deeply held, I’m not particularly swayed by the emotive aspect of them.

Mr Speaker, thank you. You have been recalled to give a ruling on the admissibility of Amendment Paper 238, and that is what I’m speaking to. New Zealand’s Parliament has the fewest veto points of any Western Parliament. The Speaker is one of them, and you are being asked to use that power today to preserve the constitutional arrangements of New Zealand’s democracy. It’s right that we are able to contribute to this debate now.

SPEAKER: I think it’s good for you to contribute to the debate, but don’t presume to give the Chair a lecture on the constitutional arrangements of New Zealand. Some of those claims are just claims.

ARENA WILLIAMS: The point I wish to make is about the Ngāti Mutunga bill in 2006, the debate of which you were a part. I’ve read that debate carefully and understand the difference now between what was being alleged there, which was, essentially, that was a hybrid bill between the public function of the iwi organisation that was receiving a benefit, and the private benefit which was being received by the existing trust structure in settlement of its assets. That’s a useful precedent to consider here because there is a mixture of private and public benefit in this bill, but where the Speaker was returned to the chair in that case and backed the ruling of the chair of the committee, it was because the private benefit conferred at an amendment stage went to the heart of what a private bill is meant to be, which is promoted by the promoter so that there is sufficient public scrutiny that has been invited by that promoter, and that the private benefit was well understood. Neither of those two things were met in that case.

I’d also drew your attention, Mr Speaker, to the fact that that was about a creature of legislation. A number of the examples that the Hon Chris Bishop has presented to you are about entities which were creatures of legislation that were created by law. That was also the case in the Ngāti Mutunga decision, but what made that a private benefit was not that it was a creature of legislation; it was because a private trust with private members and private capital was receiving a benefit through this process, and it wasn’t adequately promoted. That is the same situation here. That is the precedent we should be continuing, and overruling that precedent would create a huge problem for the way that we continue with pieces of legislation like that in future.

Mr Speaker, I appreciate I’m a little late to this particular debate and I’ll keep my points relatively confined. You’ve been here longer than me, but I’m still a relatively longstanding member, having been here for 16 years, and the points that I would make are this. I have never seen the ruling of a presiding officer, a Chair of the committee of the whole House, on the admissibility of an Amendment Paper, or what we used to call Supplementary Order Papers, overruled by the Speaker during the time that I have been here. We would be entering into very rare, if not new, territory for the House were you to overrule the decision of a presiding officer. In the whole time I have been here, all of the Speakers that I have served underneath have taken the view that they will not undermine the standing of the presiding officers of the committee of the whole House on a recall overruling decisions that they have taken. This would be new territory for that to happen.

The second is that, of course, does rely on the committee Chairs following the advice of the Clerk of the House, which I understand has happened here. The Clerk of the House’s job is to provide impartial advice to the presiding officers to ensure that the Parliament acts within the confines of its own rules.

Hon Chris Bishop: It doesn’t mean he’s right.

Rt Hon CHRIS HIPKINS: This is a point of order.

SPEAKER: We’ll have no comment during points of order.

Rt Hon CHRIS HIPKINS: The Clerk is here to determine that the Parliament acts within its own rules, within its own precedents, and makes decisions that are consistent. If the Clerk has advised that this Amendment Paper should be ruled out of order, and the committee Chair has ruled that the paper should be ruled out of order, it would be unprecedented for the Speaker, on recall, to reverse that decision, and would create a whole series of precedents I’m not sure you would want to get into, because you’ll find yourself recalled very, very frequently if that becomes your practice.

SPEAKER: I’ll take the Hon David Seymour and then one other call.

I just feel that someone should point out that the question of whether the benefits given by this bill is public or private is actually moot. It doesn’t give any benefit. It doesn’t take from one and give to another. It simply allows people to use their property rights with a little bit less bureaucracy and rigmarole than they’d otherwise face under laws made by this House.

I have four brief points to make. The first deals with the precedent that Minister Bishop raised in respect of the BNZ reference in Speakers’ rulings—quite different. I agree with the ruling, of course, that is in the Speakers’ rulings. That is, as a matter of public policy, the Government of the day chose to issue a guarantee to the BNZ as a matter of public policy to protect the banking system and the depositors—clearly a matter of benefit to the public and a matter of public policy. I don’t think that’s a precedent that the Minister can rely upon, because it wasn’t conferring a private benefit to the BNZ; it was conferring a benefit to the banking system and to the depositors.

The second precedent that was raised was in respect of the COVID-19 legislation. That legislation was quite different from this legislation. That just changed a process in the context of the COVID-19 pandemic; it didn’t change legal rights. This legislation changes the Conservation Act, the Resource Management Act, the normal protections in the Wildlife Act, and many other pieces of legislation, for the benefit of the people that get that special leg-up. In a way, that is a private benefit, which, in my suggestion, would be quite different.

The third point I would make is that, with respect, sir, I think you should take cognisance of the fact that this hasn’t been raised at select committee. There has been controversy that this been dropped on the House late in the piece, and there were people wanting to make submissions, maybe because they wanted to make the very points that the Clerk of the House has made to the House—that there are issues here that we should be concerned about that go to probity—which is one of the reasons why we have rules against this sort of thing being done in a public bill rather than a private bill. Indeed, that’s the reason—and I was the Minister responsible for the overseas investment legislation, where the exemption that was given to a development up North was ruled out by the Speaker. I accepted that ruling as being proper, and I think the same principle applies here.

The fourth point: if this ruling of the Chair is upheld, it’s not the end of the world for the Government. They still have the ability to push these projects through—the legislation, if it passes. It’s just that they’re not listed in the schedule, because that creates a private benefit from the legislation, rather than the process that subsequently flows from the legislation. Although the Government might not want that to happen, they still could avail themselves of this legislation when it is passed to, if they want to at that stage, avail themselves of the process under the Act that will then exist.

Hon Shane Jones: Mr Speaker?

OK, look, this had better be short and preferably not the sort of lecturing comments I’ve heard from most speakers so far.

Thank you, Mr Speaker. This is a significant issue, and I don’t want to trifle what you’ve said before; you didn’t want to hear from anyone else. Most of what we’ve heard pertains to a private benefit. I endorse what has been said, that these are broad impacts upon society. I respect the role that the Clerk of the House has and I respect the role that his fellow workers have, but this has a broad impact. It is not correct to analogise it to a singular recipient of a private benefit, as my dear friend on the other side of the House—Mr Parker—has referred to. I don’t want to rehearse the arguments in relation to the first fast-track bill. This has such a widespread impact. It is not sustainable to continue to argue that the impact of this schedule will be enjoyed by a narrow range of New Zealanders. It is profound. It is not inconsistent with the public welfare, which this bill seeks to produce.

Lan Pham: Speaking to the point of order.

Well, look, I did say we’re at the end of it, so this will be the very last contribution. Lan Pham.

Thank you, Mr Speaker. I wanted to rise just to respond to what has already been raised by the Government member, particularly about these being broad aspects across society. These are not broad impacts. This is about a specific set of 149 projects that specifically impacts quite a narrow group of people, and I want to give one example, being the Waimate waste incineration plant. This is an entirely private company. It impacts one school, a very set amount of farmers—

SPEAKER: Sorry, look the question—

LAN PHAM: It’s narrow.

SPEAKER: With all due respect, the question here is: is the amendment in or out, tested against what has been the advice from the Clerk? Go again to the projects—we could do it one by one, but it won’t make any difference to the thinking.

LAN PHAM: Thank you. The reason I’m responding to this is because we absolutely support the view of the Clerk, and we think that this amendment confers an unacceptable threshold of private benefit afforded to a few, compared to the general public. Thank you.

It won’t surprise members that I’ve done a great deal of thinking about this particular issue, as it’s been on the cards for a number of days. I want to, at the outset, thank the Clerk for the advice that he has provided and acknowledge the Chairperson for her taking that advice and presenting it to the committee. In the end, though, a decision about this lies with me as Speaker. I thank members for their contributions to this particular debate, and if I was to summarise it, it is in favour of policy on one side and in favour of precedent on the other.

Generally, it’s the role of the judiciary to decide how law applies to particular cases. It is undesirable, in principle, for Parliament to make law that is only for the benefit of specific private persons. Where the House does consider such law, it does so carefully. We would not want to permit a situation where members and Ministers could simply propose bills and amendments to benefit particular private interests without proper scrutiny under the House’s rules. The issue here centres on what it means for a provision or amendment to be private legislation. There are three tests to apply. If the answer to all three questions is yes, then the proposed provision is private legislation and should not be included in a Government bill.

The first question is: does the proposed provision affect a particular person or body in a private capacity? Clearly, this is not the case where the entity concerned is a public body. If the provision affects a private entity but relates to a public function carried out by that entity, then that may be a matter that can be dealt with in a Government bill. There are clearly some persons listed in the Minister’s amendment that are affected in a private capacity. It’s worth noting, though, that there is virtually no bill passed in this House that doesn’t have some private benefit, or at least have it claimed to be part of its legislative arrangements.

The second question is: does the proposed provision affect the person or body but not affect all others belonging to the same category or class? Under the bill, a person listed in Schedule 2 would be affected differently from the rest of the very broad category of persons who may apply for fast-track approval—that being that they are in the schedule; others need to come to the Minister to seek approval to get on that fast track.

The third question is: does the proposed provision have a legislative effect that gives rise to a particular benefit or interest to a person or body? I agree with the Chairperson’s assessment that there could be a beneficial effect from being listed in Schedule 2. However, this legislative effect needs to be considered in the broader context of the bill. On the one hand, a listed project would not need to go through the initial process of applying and being considered for referral under the bill, and would not be subject to the same criteria as a referred project. On the other hand, if the Minister’s amendment to Part 2 were adopted—I should add, too, that when it—well, just go back a little bit, and say considered for referral under the bill and would not be subject to the same criteria as a referred project. Those referred projects listed in the bill have been through a process, although that is not something the House can consider. On the other hand, if the Minister’s amendments to Part 2 were adopted, a listed project would still need to undergo a substantive application process, with a number of requirements in common with any other referred project. Approval for the project could still be declined or conditions imposed, as for a referred project.

It differs in some ways to some of the points that are made, quite correctly, by members of the Opposition; where the argument from the Government seems to be that a bill should be able to benefit a particular private entity directly, as a matter of public policy. That is not unusual. This is not a sustainable position, though, in reference to Standing Order 257(1): to a matter of public policy, make a distinction between that sphere and matters that are of interest to or benefit to particular persons. It is what is meant by “the interest or benefit to a particular person” that is the issue here.

We’re looking at admissibility. The presiding officer considered the text of the proposed legislation without regard to process carried out within the executive branch; that is appropriate. The fact that the Government deems the proposal to be a matter of public policy is not the presiding officer’s concern. Subject to the Standing Orders, the presiding officer treats all legislative proposals the same way, whether they are put forward by a Minister or another member.

I therefore consider, with all the remarks that have been made, taken in the context of the other amendments set out on Amendment Paper 238, the legislative effects would not be sufficiently clear as to give rise to a particular benefit for an authorised person for a listed project, as distinct from a referred project. On that basis, I’m not satisfied that the Minister’s amendment to Schedule 2 would fail the third test as I’ve set out. It’s finely balanced, but that is my conclusion. Depending on the amendments agreed by the committee before reaching Schedule 2, my view is that the Minister’s amendment to Schedule 2, set out on Amendment Paper 238, is admissible. However, on account of the potential beneficial effects the amendment may confer, the Chairperson would be justified in allowing a more considered and lengthy discussion in the committee stages.

I declare the House in committee for further consideration of the bill.