20 Jun 2018

'Striking out' and other superpowers

From The House, 5:40 am on 20 June 2018

If Parliament was the Justice League, then The Speaker of the House is Superman.

Ignoring the fact that Batman is much cooler than Superman and beats him most every time, Superman has a lot of superpowers… and so does the Speaker, but Parliament's Superhero only wheels some of them out very occasionally.

The Speaker just demonstrated another rare power in the House, when he struck a clause out of a bill in a single bound, because it was against the rules. Kapow!

Did you know he could do that?

Trevor Mallard as Speaker of the House

Photo: RNZ / Richard Tindiller

Some background...

Once upon a time, way back, at least Henry the Eighth ago, law was often just the wider extension of a successful petition to the sovereign from a individual citizen. Well, probably not any old serf, because they were just property... but anyone sufficiently posh. 

Say some yeoman good and true complained to the king that the local Duke had stolen his farm, and it wasn’t fair.  If the King said, "oh alright then, fair cop, give it back", then Parliament might write that up as ‘Dukes can’t nick your land without the King’s permission’.

Such a rule would gain wider application, and this continued until the personal petition didn’t even have to happen first, and laws were written to be universally applicable, rather than developed from special cases.

But - and you might not know this - the special case thing never actually died. Laws can still be passed that are just about you. Feeling special?  

Henry VIII

Henry VIII Photo: wikicommons

There is more than one kind of legislation. The ones you’re used to are 'public' bills, to become laws that will apply to everyone. They include both Government Bills and Member’s Bills.

These public bills are what Parliament spends 99% of its time on. They pass through Parliament by a particular mechanism - first reading, select committee, second reading, committee stage, third reading, royal assent. That’s the normal way, the public bill way, but not the only way.

The other bills are written for limited groups.  They are either Local Bills (usually introduced at the request of a local council), that apply to a certain area; or Private Bills that apply to a person, or a small group of people.

Private Bills are mostly for special cases, to make something legal for you that’s normally illegal - but just for you. So before there was a Divorce Act in New Zealand, you could only have been granted a divorce by a private act of Parliament. Not that anyone was. 

Here’s a real example; in 1982 a law was passed to allow a New Zealand couple to get married. They wanted to marry, but couldn’t legally.  The problem was they were related, but not by blood. An adoption meant that legally they were too closely related to get legally wed.

The prohibition in the law on marriage wasn’t really meant to apply to a case like theirs, but it did; so a Private Bill was passed into law to give them permission. Yes, just them. Love will find a way.  

wedding sun

wedding sun Photo: creative commons

That’s the sort of thing private legislation is for. Special cases and exemptions. They are pretty rare. 

But Private Bills have different requirements to public bills, and go through Parliament by a different process, including a requirement for public notification.

Because of these differences a bill has to be one kind or the other. It has to choose. Public or private. General or specific.

So, and here we finally get back to the nub of the matter... today the report of the Finance and Expenditure Committee on the Overseas Investment Amendment Bill was tabled in the House.

It included the Committee’s recommendations for amendments to the Bill, based on public feedback from the hearings it had held. One of those amendments was a special exemption to be written into the law, on behalf of a particular hotel building project.

Thus, a special case was inserted into a general law - which is a no-no. And so the Speaker got to change into his Justice League outfit and strike out that clause. Blam.

Superman 1948

Superman 1948 Photo: Wikicommons

Explaining his ruling, he gently reprimanded the Committee for ignoring the advice of the clerks (who are, after all, the resident experts on the rules), and also suggested how they might be able to achieve the desired effect without breaking the rules.

In this case, either by taking advantage of the proposed law's regulation-making powers that allow the responsible minister to make exemptions; or by rewriting the amendment with a more general application, rather than aimed at just one Queenstown development.

...For truth, justice and the Standing Orders of the New Zealand House of Representatives.  It's not exactly a snappy catch phrase but Parliament prefers lengthy and accurate over pithy every time.