STRENGTHENING

PARLIAMENTARY
DEMOCRACY
A discussion paper

New Zealand Human Rights Commission

Level 1, 44 The Terrace
Wellington 6011

TableContents
of

Foreword ............................................................................................... 1
1.

Introduction .................................................................................. 2

2.

The role of the Human Rights Commission................................. 3

3.

Principles and concerns .............................................................. 4

3.1 The right of citizens to participate......................................... 5
3.2 The responsibility of Parliament ........................................... 7
3.2.1 Urgency and ensuring select committee scrutiny ...... 7
3.2.2 Section 7 of NZBoRA ................................................. 9
3.2.3 Supplementary Order Papers (SOPs) ....................... 10
3.2.4 A Human Rights Select Committee ........................... 11
3.3 The transparency of the legislative process ......................... 13
3.3.1 Policy deliberation...................................................... 13
3.3.2 Role of the news media ............................................. 14
3.4 Respect and dignity of Parliament........................................ 15
3.4.1 Members behaviour .................................................. 15
3.4.2 Minority viewpoints .................................................... 16

4. Recommendations ........................................................................... 17

Foreword
Kia ora tatou
The Human Rights Commission is interested in public feedback on this discussion
paper, Strengthening Parliamentary Democracy. It used an earlier draft of the paper
as its submission to the Review of Standing Orders conducted by the Standing
Orders Committee in 2011.
The Commission is asking for feedback on the following questions:

Has the Commission overlooked any significant areas relating to strengthening

parliamentary democracy that should be included?

Do you agree with the recommendations at the end of the paper?

Are there additional or alternative recommendations that you would propose?

Is so, what are they?

How could you or your organisation use this discussion paper to progress
change?
Please respond on line at http://www.hrc.co.nz/news-and-issues/human-rights-innew-zealand/feedback-on-strengthening-parliamentary-democracy-paper/
Alternatively contact:

Dr Judy McGregor, EEO Commissioner, at judym@hrc.co.nz ph 04-4969770

Sylvia Bell, Principal and Legal Policy Analyst at sylviab@hrc.co.nz ph 09-3062650

Thank you for your interest in this discussion about the human rights implications of
parliamentary democracy in New Zealand.

Dr Judy McGregor
EEO Commissioner

1.

Introduction

The Human Rights Commission is issuing this discussion paper aimed at

strengthening representative democracy and the right of citizens to participate
in parliamentary processes. The United Nations in its recent Guidance Note
on Democracy produced by the Secretary-General states that democracy is a
dynamic social and political system whose ideal functioning is never
achieved1.
Democratization, furthermore, is neither linear nor irreversible and thus both
state institutions and citizens must monitor and maintain oversight of this
process. Accordingly, all countries, as well as the international community
itself, could benefit from continued strengthening of, and support to, their
democratic processes.2

In the past five years there has been increasing concern about fundamental
human rights issues such as the lack of public participation in submission
processes and diminishing collective deliberation about fundamental reforms,
about rushed legislation3, about by-passing select committees, about a
perceived declining respect for submitters in select committee proceedings,
and the unrealised potential of the Attorney-Generals vets under section 7 of
the New Zealand Bill of Rights Act (NZBoRA). Each one of these on its own is
cause for concern but the aggregated effect warrants serious scrutiny so that
parliamentary processes are not further weakened.

One of three challenges in the 21st century in preserving and improving the
quality of democracy is how to respond to, or even help prevent, the slow and
gradual erosion in the quality of democracy and the weakening of democratic
freedoms, practices and institutions which sometimes occur. 4 Parliament is a
critical institution in the promotion of, and protection of, democracy.

Respect for human rights has long been regarded as a normative and
conceptual foundation of democracy, based on the rule of law. At the 2005
World Summit, all the worlds governments reaffirmed that democracy is a
universal value based on the freely expressed will of people to determine their
own political, economic, social and cultural systems and their full participation
in all aspects of their lives and stressed that democracy, development and
respect for all human rights and fundamental freedoms are interdependent
and mutually reinforcing.

Guidance Note of the Secretary-General on Democracy (2009) p.1.par 2.

Ibid.
3
An open letter from 27 constitutional law and politics academics questioned the speed and
expediency of the Canterbury Earthquake Response and Recovery Act 2010 in a single day. Ousting
legal Checks Misguided Perspective.The Press, 29 September, 2010.
4
Ibid at fn 1, p.1, par 3.
2

The role of the New Zealand Human Rights

Commission

The New Zealand Human Rights Commission has a primary function,

s5(1)(a), to advocate and promote respect for an understanding and
appreciation of human rights in New Zealand society. This paper aims to
stimulate a constructive and legitimate debate so that New Zealand can
continue to protect and enhance civil and political rights and its unique
democratic culture.

Additional statutory functions include to be an advocate for human rights and

to promote and protect, by education and publicity, respect for, and
observance of, human rights; and to inquire generally into any matter,
including any enactment or law, or any practice, or any procedure, whether
governmental or non-governmental, if it appears to the Commission that the
matter involves, or may involve, the infringement of human rights5.

The Commission has a role in monitoring the health of civil and political rights
as well as economic, social and cultural rights in New Zealand through its
engagement with the Human Rights Council of the United Nations, its
reporting to treaty bodies such as the committee considering New Zealands
periodic reports on its obligations under the International Covenant on Civil
and Political Rights, and in the Universal Periodic Review process.

The Commission also has a responsibility to monitor domestic legislation for

human rights compliance and provides specialist human rights policy advice
to Parliament, government agencies and other organisations and groups. In
the past 5 years the Commission has made at least 80 submissions on
government bills and has appeared over 30 times before select committees in
a bid to promote human rights standards so that they are incorporated in
legislation. It uses a human rights approach recognised internationally as best
practice in analysing policy and legislation.

Based on its day-to-day involvement with parliamentary processes, the

Commission has identified a number of issues of concern with parliamentary
policies and practices that include:
o the period of time for public submissions6,
o the use of urgency and inadequate scrutiny of proposed legislation by
Select Committees,
o disregard of the Attorney-Generals section 7 vets for consistency with the
NZBoRA,
o reliance on SOPs that the public cannot comment on,
o the limited parliamentary debate about international treaty body
recommendations relating to New Zealand,

Human Rights Act 1993 s5 (2) (a) and 5(2)(h).

The Commissions 2010 Annual Report stated, Throughout the year the Commission has raised
concerns about the lack of adequate time for public consideration of significant legislation.
6

o the absence of time and opportunity for collective deliberation which

should be the hallmark of representative democracy,
o and the occasional instances of lack of respect for submitters by Members
of Parliament as well as the disregard of minority opinions and inadequate
access to expert advice, including legal advice, from relevant officials.

By contrast with these concerns the human rights approach identifies criteria
such as:
o empowerment of individuals and groups to legitimise their voice in
decision-making,
o their participation in decision-making,
o the linking of decision-making at every level to human rights norms, and
o accountability.

The Commissions experience has been reinforced by research and

commentary of academics, members of the judiciary and the legal profession,
business representatives, members of civil society organisations, media
commentators and concerned individuals. The Commission includes in this
paper suggested changes that it would like to see widely debated. A number
of these have previously been suggested by other researchers and
commentators and the Commission acknowledges these contributions in the
paper.

3.

Principles and concerns

The principles of representative democracy that relate to the human rights

approach on which the paper aims to foster public debate include:
o The right of citizens and agencies to participate meaningfully in the
political process,
o The responsibility of Parliament to produce the highest quality legislation
possible and
its constitutional obligation to scrutinise legislation
effectively,
o The transparency of a legislative process conducted in a manner
permitting public, full and open policy deliberation,
o The respectful and dignified use of Parliamentary procedures and
practices that enhance the reputation and integrity of Parliament 7.
These principles are discussed in the remainder of the paper with
recommendations where appropriate.

These principles have been identified in the House of Lord Select Committee on the Constitution
(2009) Fast-track legislation: Constitutional Implications and Safeguards. Vol 1:report, HL Paper
116-1 (The Stationery Office Limited, London) and further developed in Geiringer,C., Higbee,P., and
McLeay,E. The Urgency Project (2010) Standing Orders Review 49th Parliament Submission to
Standing Orders Committee.

3.1 The right of citizens to participate meaningfully in the

political process

The ability to participate in the political process - including in the development

of legislation - is a fundamental right in liberal democracies such as New
Zealand and has long been seen as integral to stable and responsive
governance. Political participation is also central to international human rights
norms8 - Article 25 of the International Covenant on Civil and Political Rights,
for example, states that every citizen shall have the right and the opportunity
and without unreasonable restrictions to take part in the conduct of public
affairs, directly or through chosen representatives.

The United Nations recently issued a Guidance Note that suggested that the
way in which a government operates and provides for people to have a say in
the policy process has a direct impact on the way that its citizens perceive the
degree of legitimacy of their countrys democratic system9. In its five yearly
review of New Zealands human rights performance, one of the most pressing
human rights issues the Commission identified was a lack of participation and
representation that fairly reflected the diversity of New Zealand society.

Effective community engagement involving all the relevant stakeholders

generates better decisions and is the key to robust legislation. On several
occasions in the past five years, the Commission has expressed concern to
select committees and other officers of Parliament, that the increasingly
truncated period for members of the public, civil society organisations and
agencies to make submissions is undermining full and effective participation
in the political process and so weakening its effectiveness.

During hearings on the Local Government (Auckland) Bill in 2010 Auckland

Central MP Nikki Kaye asked what the Commission considered to be an
appropriate interval of time for the public to make submissions to Select
Committees. Similar issues have engaged like-minded countries for several
decades. Although there is uniform agreement on the importance of ensuring
that adequate time be allowed for public input, there is little consensus on
what the time should be.

David McGee in Parliamentary Practice in New Zealand says, it has been

suggested that the normal period to allow for submissions is a minimum of six
weeks. This gives persons who wish to make submissions a realistic time to
formulate their comments, even on a substantial bill. Shorter time-frames than
this will be appropriate if the House has restricted the time for report by the
committee or if the bill is of limited interest. These are matters for
determination by the committee. There are likely to be complaints from
members and the public when a limited time-frame is allowed for a substantial
bill.10

Steiner, H Political Participation as a Human Right (1988) Human Rights Yearbook, Vol.1
Guidance Note of the Secretary-General on Democracy (2009) at para 7
10
McGee,D.(2005) Third edition. Parliamentary Practice in New Zealand at p. 353.
9

A variety of other factors may also be relevant. For example, if the period falls
over a public holiday (as was the case with the Local Government legislation)
then the period should arguably be longer. The legislation may also have the
potential to affect marginalised groups or people who do not normally engage
with, or understand, the legislative process (again this was the case with the
Local Government Bill) in which case consultation may need to be over a
longer period if it is to genuinely reflect the concerns of those groups.

As long ago as 1993 a project in Alberta, Canada endorsed the need for
public consultation that was open, honest, informed and un-rushed11. In
2009 the Canadian Department of Justice issued a policy statement on public
participation that referred to the importance of providing time for stakeholder
participation noting:
In planning public participation processes, it is important to recognise the
resource constraints which affect citizen or stakeholder representatives ability
to reply to requests for input. As a consequence, participants are to be given
sufficient time to adequately consider, internally consult, and respond to the
consultation within time frames which strike a reasonable balance between
the Departments needs or exigent circumstances to get something
accomplished expeditiously and the need for participants to be involved in a
meaningful way.12

Similar observations can be found in Australia13, South Africa14, Italy15 and the
United Kingdom16. Directives in the United Kingdom relating to time frames,
however, identified twelve weeks as the minimum period for consultation17 for

11

Elliot, D Ideas for the Select Special Committee on Parliamentary Reform: Legislative Assembly of
Alberta (May,1993) at 7
12
Department of Justice, Policy Statement and Guidelines for Public Participation (2009) at 6
available at http://www.justice.gc.ca/eng/cons/pol/html
13
Burton, K Community Participation in Parliamentary Committees: Opportunities and Barriers
Parliament of Australia (1999) at 15 (a short time frame in which to report may be a deliberate tactic
by which to minimise critical submissions)
14
Hicks, J Government mechanisms for public participation: How effective are they? Centre for
Public Participation (2003) available at
http://www.cpp.org.za/main/.php?inclcude=docs/2003/govt_mech (legislative processes not easily
accessible to marginalised groupstime frames for input are tight at 5). The case, Doctors for Life
Intl v the Speaker of the Natl Assembly & Ors 2006 (12) BCLR 1399 (CC0 (S.Afr.) is also instructive
in this regard. The case involved a decision as to whether a democratic nation should have
mandatory mechanisms for give and take between legislative leaders and the public. The South
African Constitutional Court answered this in the affirmative, noting at one point that when it comes to
establishing legislative timetables, the temptation to cut down on public involvement must be resisted.
Problems encountered in speeding up a sluggish timetable do not ordinarily constitute a basis for
inferring that inroads into the appropriate degree of public involvement are reasonable. The timetable
must be subordinated to the rights guaranteed in the Constitution, and not the rights to the timetable
[at para 194].
15
See Carson L and Lewinski R, Fostering Citizen Participation Top-Down commenting on Tuscan
Law no.69 enacted in 2007 which enshrines in statute the right of citizens to participate in the
development of regional and local policies.
16
C Kelly, R Pre-legislative scrutiny (2010). See also Cabinet Office, Code of practice on written
consultation (2000) at www.businessadviceonline.org/regulationstaxes/implementationguidelines.pdf;.
17
Government Response to a report on Pre-Legislative Scrutiny in the 2007-08 session, 19 April
2009, HL 160 2008-09, Appendix 1

significant legislation. The Commission believes that twelve weeks should be

the minimum period for consultation for significant legislation, and where the
twelve weeks includes a holiday period extra time should be factored in.

3.2 The responsibility of Parliament

3.2.1 Urgency and ensuring select committee scrutiny

The role of parliamentary committees conducting scrutiny of legislation has

been described as having twin aims: 18
o
To produce better laws as committee reports on the consistency of
legislation with the identified principles: inform parliamentary debate and
influence drafting of legislation, and
o
To raise the political costs for a government wishing to pass laws which
may be inconsistent with the identified principles. Accordingly, scrutiny
serves to alert Members of Parliament and the public to inconsistencies
with the identified principles and to assist the resolution, within
parliaments rather than courts, of issues requiring a balancing of
competing principles or rights. This requires that a Parliament state
clearly the effect upon fundamental rights of the legislative measures to
which it is giving its consent on behalf of the community. In a unicameral
Parliament, the aims of legislative scrutiny may become more important
as, ordinarily, the second House is a House of scrutiny, review and
debate.19

Twenty years ago, Burrows and Joseph warned about the unseemly haste
of governments determined to get legislation passed20. The situation has not
improved. If anything, it has got worse. Public lawyer Mai Chen asks, Given
that New Zealands unicameral Parliament can already enact legislation faster
than most Westminster democracies, is urgency being taken unnecessarily
and excessively, to the detriment of quality lawmaking, without proper public
input through the Select Committee process, such that reform is needed?21
Chen says that since 2008, the current Government has passed over 70 Bills
through at least one legislative stage under urgency and while it was arguably
appropriate or justified for some of the Bills for others it was not.

The Commission notes that it was unable to submit on a number of significant

pieces of legislation that had fundamental human rights implications because
they were passed under urgency. These included the Environment
Canterbury legislation (the ECan legislation) which was introduced under
urgency and forced through all three readings in one sitting 22, and the

18

M.C.Tolley (2009) Parliamentary Scrutiny of Rights in the United Kingdom:Assessing the Work of
the Joint Committee on Human Rights,Australian Journal of Political Science, 44,1, at pg 47
19
Scrutiny of Legislation Committee submission to the Review of the Committee System of the
Queensland Parliament, 2010, p.2.
20
Burrows J.F & Joseph P.A., Parliamentary Law Making [1990] NZLJ 306
21
Chen,M ( 6 May 2011). New Zealand Parliaments love affair with fast lawmaking and urgency. NZ
Lawyer pp 12.
22
Joseph, P Environment Canterbury Legislation [2010] NZLJ at 193

Canterbury Earthquake Response and Recovery Act 2010,23. In March 2011

Select Committee News noted the select committee race track where both
this week and last week the number of submitters passing through the
committee rooms have been at epic levels. Bills are being dealt with at such a
blistering pace that figures as diverse as the Chief Justice, Dame Sian Elias,
whose concern is the Criminal Procedure (Reform and Modernisation) Bill, to
TelstraClear CEO Allan Freeth, whose concern is the Telecommunications
(TSO, Broadband and Other Matters) Bill, are calling foul.24

Select committees are regarded as an important check and balance on the

Executive, particularly in a Parliament that lacks an upper house or revising
chamber, and have been described as both the workhorses25 and the
engine room26 of Parliament. Changes in 1985 to the select committee
system vastly extended their jurisdiction and powers. Examination of bills for
consideration after the first reading - except for those to which urgency is
accorded - is a primary function of select committees. Palmer and Palmer
consider that the development of the select committee role and public
participation in the content of legislation has become a major and positive
feature of the New Zealand legislative process27 and that the vital
importance of select committee scrutiny in the New Zealand Parliament lies in
the ample opportunity given to members of the public to make submissions on
a bill.28

Two pieces of recent research paint a worrying picture of the bypassing of

select committees. Blogger David Farrar, using information supplied from
Wellington Central MP Grant Robertson states: National has so far passed
17 bills under urgency, bypassing select committees. This is a massive
increase on past practice. Labour on average only passed 4 bills per term
under urgency bypassing select committees. Such a high level of select
committee circumvention undermines good parliamentary practice.29

A more extensive study called The Urgency Project examining the years
from 1987 to 2010 states, the use of no-select committee urgency, has
remained high in relative terms, throughout this governments term in office. A
little over two thirds into its three-year term, this Parliament already ranks the
highest equal of all Parliaments during the period of the study in this use of
urgency.30 Among the main conclusions of the Urgency Project are:

23

The Act was passed under extended sitting hours adopted by leave of Parliament, rather than
under urgency.
24
Select Committee News, 18 March 2011, p.1.
25
Report of the Standing Orders Committee on the Review of Standing Orders I. 18A Appendices to
the Journal of the House of Representatives, Wellington, 1995, p.31.
26
Bradford,S. (April 29, 2011) Goudie sparks revolt-MP competence does matter.
http://www.pundit.co.nz/content/goudie-sparks-revolt-mp-competence-does-matter Accessed on
29/04/2011.
27
Palmer G. and Palmer.M. (1997) Bridled Power Oxford University Press New Zealand p 161.
28
Ibid at 158.
29
Kiwiblog, Use of Urgency. http://www.kiwiblog.co.nz/2011/04/use_of_urgency.html. Accessed on
28/04/2011.
30
Geiringer,C., Higbee,P., and McLeay, E. (2011) The Urgency Project. Submission to Standing
th
Orders Committee, Standing Orders Review 49 Parliament. Accessed on 29 April 2011

A perception by parliamentarians that there are insufficient scheduled

sitting hours to get through the legislative programme

A profound lack of understanding in the media and the general public as

to what urgency is which comes partly from its hybrid role- as a way of
responding to matters of genuine urgency and as a mechanism to
respond to lack of time.

Both studies make recommendations. Farrar urges an increase in the number

of sitting weeks and a reduction in recess time and the Urgency Project
suggests a comprehensive review of parliamentary time. Both want the
Speaker to have a greater role before the bypassing of a select committee
stage of a Bill.

The Commission believes that parliamentary democracy would be

strengthened by more sitting hours, by streamlined scheduling of legislation
and by greater discipline in limiting the legislative programme to allow for
sound parliamentary practice, given the lack of public interest in an election
cycle longer than three years. However Parliament rearranges its time, it
needs to take into account the need for family friendly working practices to
encourage diversity of representation. Change that merely affirms a stoic
attachment to longer and later working hours is undesirable.

3.2.2 Section 7 of the New Zealand Bill of Rights Act (NZBoRA)

Several reports to the Human Rights Committee considering New Zealands

fifth periodic report on the International Covenant on Civil and Political Rights
raised concerns about the Attorney-Generals responsibility under section 7 of
the NZBoRA which requires a report to Parliament if proposed legislation
displays any apparent inconsistencies with the NZBoRA. The New Zealand
Law Societys Human Rights Committee (NZLSHRC) stated that although the
Attorney-General receives advice from officials on every bill, the AttorneyGeneral was only required to report to Parliament when aspects of a bill
appear to be inconsistent with NZBoRA. It recommended amending section 7
with the aim of improving Parliaments awareness of the human rights
implications of proposed legislation as happened in the United Kingdom and
the Australian states of Victoria and the Australian Capital Territory. Making
the Attorney-General present a report on human rights consistency for every
bill introduced to Parliament (including those that appear consistent) would go
some way to ensuring legislation is human rights compliant.31

The Human Rights Commission said Section 7 is designed to ensure that

Parliament is made aware of a possible breach so it can either rectify it or
enact the legislation recognising there is a breach. At present the Attorney-

http://www.parliament.nz/NR/rdonlyres/988AE9D2-5459-44CB-A9B274EFE7EA1ED8/188249/49SCSO_EVI_00DBSCH_INQ_10324_1_A177554_NewZealandC.pdf
31
New Zealand Law Society Human Rights Committee (2010) Submission to the 96th Session of the
Human Rights Committee. Shadow Report to New Zealands Fifth Periodic report under the
International Covenant on Civil and Political Rights. http://www2.ohchr.org/english/bodies/hrc/docs.
Accessed on 10/05/2011.

General only reports to Parliament if the discrimination cannot be justified as a

reasonable limit on the particular right or freedom under consideration. This
process would be strengthened if the Attorney-General was required to
present a report that legislation is prima facie discriminatory thus allowing a
more informed debate about whether a breach can, in fact, be justified.32

In its concluding observations on New Zealands report, the Human Rights

Committee reiterated its concern that NZBoRA did not reflect all rights in the
International Covenant on Civil and Political Rights. It also remained
concerned that NZBoRA did not take precedence over ordinary law and that
laws adversely affecting the protection of human rights had been enacted by
the State party, notwithstanding that they had been acknowledged by the
Attorney-General as being inconsistent with NZBoRA.33

3.2.3 Supplementary Order Papers (SOPs).

Concerns have been expressed about Supplementary Order Papers for a

number of years. In 2003 ACT MP Heather Roy expressed concern in the
House during consideration of the Criminal Justice Amendment Bill (No 7) at
the lack of scrutiny-scrutiny that should exist with the select committee
process. She claimed lack of scrutiny was increasingly common with the
Labour-led government of the day and criticised the throwing in of long
Supplementary Order Papers at the last minute. The one in question was 44
pages long and a gambling bill several weeks earlier had been 65 pages
long.34

In the same debate comments from the Health Select Committee in 2001
were read out to the House. Occasionally, Government departments will
propose substantive and significant changes to bills after select committee
have finished hearing submissions. We disapprove of that practice,
Committees are not simply vehicles for Government amendments to
legislation: they are committees of Parliament with a duty to scrutinise
legislation and provide for public input so that New Zealand is provided with
the best legislation possible, reflecting a wide range of interests.35

Supplementary Order Papers are not subject to s.7 vets. This creates a
mechanism for bypassing scrutiny by the Attorney-General. The possibility
arises because, as the Court of Appeal noted in Boscawen v AttorneyGeneral36 s.7 applies only on the introduction of a Bill not to its process
through the system. Although such abuse is infrequent and there are

32

New Zealand Human Rights Commission (2010) Comment of the New Zealand Human Rights
Commission on New Zealands implementation of the International Covenant on Civil and Political
Rights in Connection with the Consideration of the Fifth periodic report of New Zealand
(CCPR/C/NZL/5).
33
Concluding Observations of the Human Rights Committee, 98th session, New York 8-26 March
2010. CCPR/c/NZL/CO/5. Distributed 25 March 2010.
34
Hansard, First session, Forty-seventh Parliament 2002-2003, 21 October 2003, p 9538.
35
Ibid at p 9539
36
[2009] 2 NZLR 229 (CA)

10

arguably ways of addressing it 37- it remains an outstanding concern and has

been described as disfiguring the legislative process as a whole 38. The
possibility was criticised during the Review of Standing Orders in 1995, the
Committee recommending that the practice should not continue, but it was not
formally implemented39. As a result on some occasions, amendments that are
inconsistent with the NZBoRA have been introduced. This occurred most
notably in 1999 (that is, after the Select Committees criticism) when a clause
mandating a retrospective criminal penalty for home invasion was added to
the Criminal Justice Act 1985 without a NZBoRA vet leading the Court of
Appeal to resort to various contortions to ensure a human rights compliant
interpretation40. If the reporting obligation applied throughout the legislative
process, such situations would not arise.

3.2.4 A Human Rights Select Committee

Human rights is currently designated as a subject area under the Justice and
Electoral Committee which looks at Crown legal and drafting services,
electoral matters, human rights and justice.41 Under Standing Order 190 the
functions of select committees include considering and reporting to the House
on bills, petitions, financial reviews, estimates, supplementary estimates,
international treaty examinations and any other matters.

Given the wide scope of human rights it is clear that human rights
considerations apply right across the thirteen subject select committees and
are not confined to the Justice and Electoral Committee. In addition,
legislation that contains clauses or a specific section with human rights
considerations is sometimes referred to a select committee where members
may not have particular expertise or experience in the subject matter. Some
examples are the 2004 Foreshore and Seabed Bill that was referred to the
Fisheries and Other Sea-related Legislation Committee, and not to the Maori
Affairs Committee. More recently the Commission appeared before the Law
and Order Committee to raise concerns about potential age discrimination
relating to jury service, rather than the Social Services Committee that
includes senior citizens in its subject areas. Professor Jeremy Waldron
believes that Select Committees suffer from executive dominance in that the
Executive determines which committee a given bill goes to, thereby being
more likely to provide the Government with the outcome it wants. 42

The Commission believes that the establishment of a Human Rights Select

Committee will enhance systematic Parliamentary oversight and strengthen

37

For example, at the time of the Bills consideration by the Committee of the Whole,
Waldron J Parliamentary recklessness; why we need to legislate more carefully (Annual John
Graham lecture 2008) at 26.
39
Burrows JF Statute Law in New Zealand Lexis Nexis (2003) at 52
40
R v Pora [2001] 2 NZLR 37 (CA) which was described by Thomas J as a compelling example of
the risk that legislation of considerable constitutional significance [being] passed without its import
attracting the attention of the House [at para 123].
41
McGee, D. (2005) Third edition Parliamentary Practice in New Zealand Dunmore Publishing:
Wellington. P.705
42
Waldron, J. (2008) Parliamentary recklessness: why we need to legislate more carefully. Annual
John Graham Lecture. Maxim Institute: Auckland.
38

11

accountability. It would provide a broad human rights scrutiny of proposed

legislation, have the powers of other select committees and provide thematic
inquiries.

A Joint Committee on Human Rights in the United Kingdom selects those bills
with significant human rights implications (such as the Child Poverty Bill, the
Equality Bill, the Health Bill and the Policing and Crime Bill 2009 to name a
few) but does not necessarily duplicate other select committees. The
Commission believes that legislation such as the Electoral Finance Act and
the Terrorism Suppression Act would have benefitted from detailed scrutiny
by a designated human rights select committee.

Currently New Zealands reports on meeting international human rights treaty

body standards and treaty body recommendations are seldom tabled in
Parliament. The Foreign Affairs, Defence and Trade Committee is an external
affairs committee and in 1998 was given the responsibility of acting as the
Houses overall co-ordinator of the treaty examination process. All treaties
presented to the House for examination stand referred to the committee,
which then decides which is the appropriate committee to examine them. 43
However, in the last ten years or so there has been little examination by the
committee of the regular reports from international human rights treaty bodies
in relation to the major treaties which New Zealand has ratified, such as the
International Covenant on Civil and Political Rights, the International
Covenant on Economic, Social and Cultural Rights, the International
Convention on the Elimination of All Forms of Discrimination, the Convention
on the Elimination of All Forms of Discrimination Against Women, and the
Convention on the Rights of the Child. More often the committees treaty
action has concerned bilateral and multilateral treaties.

Without knowledge and understanding of international human rights treaty

body reports, Members of Parliament cannot fulfil their responsibility to
monitor governments human rights performance. Given that international
treaty examinations are a function of subject select committees, a human
rights select committee would provide the opportunity for consideration of
treaty body reports and debate about their recommendations by Parliament.

Tabling of Treaty body reports is also an effective way for government to meet
its responsibility to publicise Treaty body recommendations to the wider
community such as NGOs, researchers and policy makers for reference in
setting their own human rights agendas. It increases the likelihood of public
engagement on the issues. New Zealand has been criticised by treaty body
committees for not tabling reports in Parliament. 44

In the concluding observations of New Zealands fifth periodic report on the

International Covenant on Civil and Political Rights, the Human Rights
Committee urged New Zealand to widely disseminate the Covenant, the two
Optional Protocols to the Covenant, the text of the fifth periodic report, the

43
44

Ibid,1 at p.589.
Advancing Human Rights, New Zealand Human Rights Commission, October 2009.

12

written responses it has provided in response to the list of issues drawn up by

the Committee, and the present concluding observations so as to increase
awareness among the judicial, legislative and administrative authorities, civil
society and non-governmental organisations operating in the country, as well
as the general public. The Committee also suggests that the report and the
concluding observations be translated into the other official language of the
State Party.45

3.3 The transparency of the legislative process

3.3.1 Policy deliberation

A human rights approach views participation as genuine empowerment, rather

than mere consultation and provision of information. This translates into the
opportunity for citizens to provide informed, timely and meaningful input to
influence decisions at various levels. Transparency and consistency of
processes are essential as well as access to information.

In addition to a minimum period for developing submissions referred to

previously, the Commission has raised the issue more broadly of the quality of
participation and the need to generate broad political and public consensus
around fundamental and far reaching reforms. For example, the Commission
criticised the 2008 controversial electoral finance reform process because
fundamental change was proposed without a broad political or public
consensus. Since then the Commission has been supportive of the wider
consultative approach adopted for the subsequent electoral finance reforms of
2010 and of the Police Act. Clearly the Commission supports the use of green
papers, white papers and other active mechanisms to stimulate public interest
in the substance of legislative change. In this context the Commission would
urge that much greater use be made of green papers.

The Commission acknowledges that the issue of precisely what constitutes

effective consultation and participation is an open and evolving one. Prior to
the introduction of the Criminal Procedure (Reform and Modernisation) Bill
there were at least 16 issues papers released by the Ministry of Justice or the
Law Commission available on websites relating to aspects of this far-reaching
reform. Their release made information publicly available and constituted a
desirable form of transparent e-governance, in addition to formal requests by
government departments and agencies for formal responses. However, it
remained a relatively passive form of consultation with civil society, which has
to have knowledge about the process to participate and it continues to fall
short of the human rights approach which talks of empowerment of individuals
and groups by enabling them to use rights as leverage for action and to
legitimise their voice in decision-making. The relatively limited nature of preselect committee mainstream news media coverage of reforms under
consideration compounded the already low level of public debate about
fundamental human rights issues. This was highlighted recently concerning

45

Human Rights Committee, 8-26 March 2010, Concluding Observations, Consideration of reports
submitted by States Parties under Article 40 of the Covenant, CCPR/C/NZL/CO5, p.6.

13

the right to a jury trial, trial in the absence of a defendant, or how NZBoRA,
with its quasi-constitutional status, should be amended.

The time frames for submissions on the background papers for the criminal
procedure legislation were short and in one instance, the paper on
suppressing names and evidence, was released on 22 December 2008 and
submissions closed on 13 February 2009, approximately seven weeks
(including the traditional Christmas and New Year holiday periods). Where
civil society has an interest, it often takes time to organise community
meetings, to gather evidence, build consensus, allow for considered
reflection, then develop and authorise a submission. All of these elements are
necessary for what New Zealand Law Society chairman Jonathan Temm
described as a mature discussion which brings together all points of view on
where we should be going.46

3.3.2 Role of the news media

In Sir Geoffrey Palmers analysis of New Zealand constitution and

Government he states that a key vehicle for public opinion acting as a check
upon Government is the news media.47 Unfortunately, as former Radio New
Zealand political editor Alastair Morrison has observed, The happenings of
Parliament are barely covered at all by the Press Gallery with Parliaments
substantial business ignored and increasingly treated as a source of infotainment.48As far back as 1985 concern was expressed by the Standing
Orders Committee of Parliament about the reporting of select committees,
and that very few reports that attempt to inform the public about the issues
that are being considered.49 The committee concluded that, ..it has a duty to
draw attention to what it sees as an inadequate performance of the functions
for which Parliament makes facilities and privileges available50 to the Press
Gallery. Mai Chen notes that both The Dominion Post and the NZ Herald
criticised the use of urgency in April 2011.51

Today the Select Committee News partially fills a void left by the gallery
representatives of the mainstream media of the workings of Parliament. This
valuable news and information service has a specialist subscription audience.
It is not intended to be a substitute for effective daily media coverage. Current
patterns of political journalism such as newsroom investment levels, the
closure of outlets like New Zealand Press Association, the lack of seniority,
the Gallery pack hunt, and preoccupations with the personality politics, are
probably irreversible. Groups and individuals wanting publicity for their

46

Debate needed on criminal justice system goals, Press release, New Zealand Law Society.
http://www.scoop.co.nz/stories/PO1103/S00082/ debate-needed-on-criminal-justice-system.
Accessed on 6/05/2011.
47
Palmer,G (1987) Unbridled Power (2nd edition) Oxford University Press: Auckland, p.7.
48
Morrison, A (1996) The Challenge of MMP. In J. McGregor (Ed) Dangerous Democracy, Dunmore
Press, Palmerston North, p.43.
49
First report of the Standing Orders Committee, July 1985. Appendix to the Journals of the House
1984-85, 1.14,p.11.
50
Ibid.
51
Ibid fn 17 at page 12

14

positions advanced to select committees will have to work harder distributing

copies of news releases and submissions to electronic agencies such as
Scoop and Newsroom and to all the major news desks, or simply blog and
hope to be blogged about.

The internet has dramatically altered how people receive and transmit
information and will be a major way in which participation and citizenship are
expressed in the future. With the decline of conventional journalism and the
apparent disinterest of the mainstream media in day-to-day coverage of select
committees, Parliament has an additional responsibility in ensuring that select
committee processes maximise internet use consistently, both for the timely
electronic dissemination of all submissions and for the purposes of reporting
back. It could also consider whether live streaming of specific select
committee hearings is warranted and cost effective, particularly when
significant pieces of legislation, that have attracted considerable public
interest, are scrutinised.

Standing Order 218 states that a select committee may make a written
submission to it available to the public at any time after receiving it. If it is not
already available it becomes so when the committee hears oral evidence.
The person who submitted it can release the submission at that time. The
New Zealand Law Society has suggested that all submissions should be
available on Parliaments website, as soon as possible after their receipt. 52
While this has been trialled by some select committees, the Law Society
would like it to be common practice, reflected in a Standing Order revision.
The Commission supports early and uniform release of public submissions to
select committees.

3.4 Respect and dignity of Parliament

3.4.1 Members behaviour

In the Commissions view, too, based on its observations of frequent select

committee appearances, there is room for improvement in the conduct of the
hearings. This suggests that the choice and training of Select Committee
chairs and deputies requires review. Commissioners who attend committee
proceedings note a new level of discourtesy (over and above properly robust
scrutiny of evidence and opinion) towards several civil society groups and
towards some individuals who are speaking either for themselves or on behalf
of vulnerable groups. This reaction is more likely to inhibit rather than
encourage participation in a vital democratic process, at a time when
communities desperately need to debate equality of outcomes as well as of
opportunities and when politicians need to listen to them. 53 On occasions, but
not invariably, a Chair has intervened to curtail such conduct.

52

Public Law Committee of the Wellington Branch of the New Zealand Law Society, The Official
Information Act 1982 and Parliament, A Discussion Paper.
53
McGregor,J. (2011) Standing on the precipice- how to rekindle new thinking about equality,
diversity and inclusion. 4th International Equality, Diversity and Inclusion Conference, Auckland
University of Technology, Auckland.

15

The Commission accepts that the perceptible lessening of respect is partially

forced on Select Committees because they do not have enough hearing time.
This results in submitters being told by committee secretaries that they only
have five minutes in which to state their case after travelling expensively to
Wellington, or in the case of submitters on Aucklands local government
reforms being grouped at the table with disparate submitters. The time issue
aside, occasionally dismissive or trivialising behaviour from MPs to
submitters, undermines a rigorous and robust testing of perspectives and
impacts negatively on the dignity of Parliament. In the Commissions view
every individual MP has a duty to the voters of New Zealand to have regard to
the effectiveness of Parliament.

The Commission recommends that a new standing order should be added to

the chapter on Select Committees: Conduct of Proceedings(perhaps after
SO215 relating to Disorder) in the Standing Orders of the House of
Representatives to the effect:
o
Members of a committee shall treat all submitters and members of the
public with courtesy and respect as befits the dignity of Parliament.

3.4.2 Minority viewpoints

The transparency of minority viewpoints has recently been subject of party

political concern. Minority reports within Select Committee reports are a way
in which a committee can put out a report but include opposing views of
members. However, in an unprecedented move in 2010, there were two
occasions when minority reports and dissenting views were not included in
the reports by the Law and Order Select Committee. Labours minority report
on the committees interim report on the three strikes legislation was rejected
and Labours dissenting view in its 2010/11 estimates reports for Corrections
and Police was similarly ignored. Labour went so far as to write to the
Speaker Lockwood Smith about its concerns at the chairing of the committee
by Nationals Sandra Goudie.54

The transparency of differing perspectives is a component of open policy

consideration and in the Commissions view the problem of dissenting views
is easily cured. Standing Order 246 on Minority Views says that a select
committee, may, in its report, indicate the differing views of its members. 55
The Commission believes the Standing Order should be amended to read: A
select committee, shall, in its report, indicate the differing views of its
members.

54

NZPA( Friday July 2,2010) Labour views left out of law and order reports..
http://www.nzherald.co.nz/nz/news/articles.cfm?c_ID+1&objectid=10656089 Accessed on
29/04/2011.
55
Standing Orders of the House of Representatives, Chapter IV, page 75, SO 246.

16

4.

Recommendations

The Commission believes that the following reforms would help New Zealand
continue to strengthen and support democratic processes. It welcomes
discussion and feedback on these points and others.

A minimum period of 12 weeks allowed for the public to make submissions to

Select Committees on legislation of high public interest and significance.

A review of Parliamentary sitting time that takes account of scheduling, has

regard for the scope of the legislative programme across the election cycle,
and supports the family-friendly responsibilities of Members of Parliament.

The Standing Orders of Parliament should specifically refer to the fact that no
new major legislative provision is to be introduced by Supplementary Order
Paper.

The establishment of a dedicated Human Rights Select Committee.

The tabling in Parliament and referral to Select Committee of

recommendations made by international treaty bodies and New Zealands
reports on its compliance with human rights treaty standards.

Continued use of innovative forms of e-governance and other approaches to

ensure the business of Parliament is effectively notified, that select committee
submissions are readily available as soon as possible, and that public
participation is enhanced through live-streaming of proceedings and other
means.

Induction and professional development for Select Committee chairs and

deputy chairs aimed at strengthening the effectiveness of Select Committees,
the dignity of hearings and respect for submitters, and thereby the legitimacy
of Parliament.

An addition to the current Standing Orders relating to Select Committee

proceedings to reflect that: Members of a committee shall treat all submitters
and members of the public with courtesy and respect as befits the dignity of
Parliament.

An amendment to Standing Order 246 to ensure dissenting views of members

are included in reports.

17