Why the Rush? – The Dangers of an Upsurge in Urgency Motions

Urgency motions have increasingly been used over the past few years to enact law which bypasses the usual public consultation procedure. It’s a power that can severely undermine the integrity of our legislative process. Governments of all stripes must commit to being restrained in their practice of this power to ensure public trust in our democracy is maintained.

Last year, the government moved an urgency motion which expedited over 20 bills through various stages of the legislative process. 4 of these bills were completed from start to finish, and shockingly included in the assortment was the Water Services Entities Bill where, extraordinarily, a 60% entrenchment clause (since revoked) was proposed to prevent the privatisation of water assets. There is a long history of urgency abuse within our parliament, but this obvious overreach, in combination with a bundle of other recent abuses, has brought this issue firmly back into focus.

Enacting successfully scrutinized legislation is paramount for maintaining trust in our parliamentary system and ensuring that New Zealand remains a democratic nation which dependably responds to the greater public interest. In ensuring this occurs, proposed bills usually go through a process of extensive assessment where public engagement and in-house deliberation are fundamental customs, valued and respected by all. With urgency motions however, that general process can be unreasonably accelerated which, at times, can vehemently damage the integrity of any law passed under them.

The urgency motion is an extremely powerful mechanism at the hands of Parliament. Bills moved under it may be rushed through up to all stages in just a couple of days. Not only are extra-sitting hours permitted, but critical periods of consultation such as the select committee can be completely side-stepped. This means that chances for public input are often taken away, and time for reflection and review by academics is largely not possible. For that reason, the use of urgency is meant for unprecedented circumstances where the government is left with no choice but to act with haste.

Currently, due to their majority, Labour has the ability to instate urgency motions in spite of objection. That is exactly what happened late last year when then leader of the house Chris Hipkins moved 24 bills under urgency - much to the dismay of all non-Labour parties. For some of these bills, one might concede that their technical nature provided enough justification for their inclusion. Though the same certainly cannot be said for the insertion of the Water Service Entities Bill, which saw the Government attempt to ram through one of the most contentious pieces of legislation this generation has ever seen.

Though unfortunately, misuse of urgency motions is nothing new within New Zealand’s Parliament. We need only take a brief look at the history books to realise just dangerous a tool urgency was and certainly can still be. A study conducted by staff at Victoria University of Wellington back in 2011 revealed that urgency motions were conducted 230 times on more than 1600 bills from 1987 to 2010. Staggeringly, over half the bills introduced to Parliament during that time were accorded urgency at least once in their enactment process. And the lack of justification, which became widespread around the political room, offered another critical element of concern. Reasons given for issuing the motion were consistently dubious and vague in their nature and, although valid motives cropped up sporadically, it was evident that a significant number of urgency motions passed were based on either freeing up the order paper or, occasionally, an element of something more sinister.

In the University review, many politicians and staff were interviewed on how they felt about urgency motions and when they would be appropriate to employ. The majority acknowledged them as being a legitimate tool for engineering extra sitting hours and prioritising legislation. According to the report, very few expressed any discomfort in urgency being used in this manner and some older politicians even openly admitted to using urgency as a means of political stealth, a way to game the opposition and buy time to reset and push back criticism. Clearly the reasons for bringing about urgency motions are still just as questionable, why shouldn’t we think our current politicians will act any more reputably?

A significant increase in the use of urgency motions under John Key’s 2008 term as well as an emergent raft of criticism through the late 2000s saw an amendment to the standing orders in 2011 which brought in extended hours motions. This allowed less urgent bills, which simply required more house time, to be passed under longer hours rather than subjecting them to an unnecessarily truncated process. And initially, it appeared there had been a positive reaction. Urgency was used just 9 times the following term which represented over three times less than the previous parliament. Though, unfortunately, that initial spark has clearly fizzled out because urgency use is back on the rise. Subsequent National (51^st) and Labour-led (52^nd and 53^rd) parliaments have since been responsible for 12, 18, and 21 (so far) uses respectively – Still reasonable figures, but displaying a worrying upsurge over recent years.

This increase is concerning on its own, but it doesn’t help that the content of bills coming under these motions are often highly contentious. In 2020 we saw urgency accorded to the Tax (Income Tax Rate and Consequences) Bill, which saw it pass through all legislative stages. The façade was that it provided an increase to the top tax rate, though underneath it stealthily granted the IRD with new powers, ones that put a substantial dent into Kiwis’ privacy rights. In 2021, the COVID-19 Response (Vaccinations) Legislation bill, which saw the introduction of the traffic light system, was also shuttled through from start to finish, and other recent question marks include the mishap in May 2020, when Parliament enacted the wrong legislation under urgency, as well as the Local (Māori Wards and Māori Constituencies) Amendment Bill, which went to the select committee for just 6 days before it passed shortly after.

The excessive use of urgency motions has been a continual problem in Parliament for decades, but this doesn’t make it any more acceptable now. The opportunity for bills to be scrutinized is vital in providing high quality legislation. We have seen time and again recently that this is not happening, and often times, its impact is undemocratic and against the public interest. We understand that the Government wants to get through a number of bills before their next term, but this should never trump the importance of proper parliamentary and public scrutiny. The common excuse of “clearing up the order paper” or “tying up some loose ends” is never an appropriate reason to bypass important stages of enquiry. Unless a bill must be passed quickly, there is no reason why it should come under an urgency motion. With the election in October a fast-approaching deadline, we sincerely hope that the Government doesn’t succumb to ramming through legislation unduly.

With the Taxpayers’ Union’s mission change reflecting the need for more accountability across our government departments, we now more than ever believe that strong scrutiny of proposed legislation must be at the forefront of debate to ensure that those in power are held to account.