How a 'loophole' resulted in 11-day submission period on fast-track amendments law

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A loophole in parliamentary rules resulted in 11-days for the public to have their say on proposed fast-track amendments rather than the usual six weeks.

The decision prompted questions in the House and revealed a gap in the rules that have allowed for a truncated select committee time without the usual steps.

Here's how a gap in the rules means the Fast-track Approvals Amendment Bill can be passed by Christmas.

An overview of the Bill

A bill's journey into law involves several stages at Parliament including Introduction, First Reading, Select Committee, Second Reading, Committee of the Whole House and Third Reading.

This particular Bill was introduced on 3 November and had its first reading on 6 November.

It will make amendments to the Fast-track Approvals Act 2024 - a contentious law that drew about 27,000 submissions when it went through Parliament last year and prompted protests both outside Parliament and within the chamber.

The first reading speeches followed the usual pattern of the government supporting the Bill and the opposition opposing it.

Minister for RMA Reform Chris Bishop said the Bill is focused on improving competition in the grocery industry by making it clear that improving competition will be considered as part of fast-track applications.

"We have heard that potential grocery retailers are not confident their projects will be eligible, so the bill includes proposals to remove barriers to entry and expansion of new competitors by making it easier to get consents for new supermarkets," he said.

The bill will also make other technical and operational changes to the Fast-track Approvals Act such as allowing the government to issue policy statements and establishing a 60 day time frame for a panel to make a decision (unless the applicant agrees to an extension).

Speaking at the Bill's first reading, Labour MP Priyanca Radhakrishnan said her party would have supported the Bill had it just been about improving competition.

"The amendment that's being introduced today, that we are debating today in the House, will introduce a hundred changes that will give Ministers much more power over the consenting process," she said.

"It will mean that the expert panel will struggle to get the information they need to make better decisions, it reduces the amount of time that the expert panel can make those decisions within, and it limits the right to appeal those decisions. So it brings back the concentration of power that people marched on the streets about-by stealth."

Because the government holds a majority in the House, the Bill passed its first reading with National, New Zealand First and Act in support, and Labour, Greens, and Te Pati Maori voting against.

The next step is for it to go to a select committee which is typically when the most public feedback is received on a bill. This is also the point when the MP in charge would indicate if they want the committee to report back sooner than usual. No instruction was given by Bishop, so the default time at committee would be six months.

Have your say in 11 days

There are a few books that lay out the rules for how Parliament functions, they include Standing Orders, Speaker's Rulings, and Parliamentary Practice in New Zealand.

Speaker's Rulings say select committees typically allow six weeks for the public to make submissions on a bill and that "a lesser period may be allowable in exceptional circumstances, but submitters should be given a realistic period to comment on a substantial bill or inquiry".

An exceptional circumstance would be the House telling the committee to work faster, which didn't happen in this case.

On Friday 7 November, the day after the Bill passed its first reading, a press release was issued saying the chairperson of the Environment Committee was calling for submissions by 2pm Monday 17 November - a period of 11 days. It also said the chair intended to discuss the timeline with the rest of the committee at its next meeting.

This is not against the rules. Speaker's Rulings say a chair can put out an ad for submissions without the committee's agreement to avoid unnecessary delays "otherwise over a week might be lost before the advertisement appears."

The committee met four days later on 10 November. The rules also allow for a committee to reverse or change the chair's decision via majority vote. After the meeting, another release was issued agreeing to the timeline for the Bill.

It said "the committee voted to endorse the call for submissions and submission deadline set by the chairperson, and to support a timeline to report the bill back in December. This decision was made by majority vote, with members from the National Party and ACT Party voting in favour and members from the Labour Party and Green Party voting against."

During question time on 11 November, Labour MP Rachel Brooking asked the chair of the Environment Committee, National MP Catherine Wedd, why the submission period was 11 days when there was no instruction from the House to report back in under six months.

Wedd said the date met the government's expectation to pass the bill before 2026.

"The government has been clear to the public that it expects the Fast-track Approvals Amendment Bill to be passed before the end of the year. As the chair of the Environment Committee, I agree, as does the majority of the committee,' she said.

To understand how this works requires a step back to look at how select committees are set up and what they are meant to do.

The guidebook to how Parliament works, Parliamentary Practice in New Zealand, says select committees "are established by the House and are creatures of their parent body. They cannot have functions or powers that the House does not possess; nor can they exercise functions or powers that have not been granted to them by the House or that the House has directed them not to exercise."

The House, which comprises all the MPs, has four core functions one of which includes providing a government, and the other is scrutinising and controlling that government. All MPs who are not in the government are responsible for holding it to account, regardless of which party they belong to.

The government holds a majority vote so usually what the House agrees to, is what the government wants. Select committees, as miniature versions of the House, are still tasked with carrying out the duty of scrutiny, but membership across all 12 subject committees roughly mirrors proportionality in the House meaning the Government usually holds a majority.

While an 11 day submission period may seem shorter than usual, it is well within the rules.

"As per Standing Order 198, I set out a timetable to ensure this expectation is met. I would like to point the member to Parliamentary Practice in New Zealand, which makes clear that chairs can, and do, frequently call for submissions on the committee's behalf, and that the chair's actions are subject to the direction from the committee and must be endorsed by the committee at its next meeting," said Wedd.

At question time on Wednesday 12 November, Brooking put another question to Wedd asking if they had spoken with the government when deciding on the submission time.

"Which ministers or ministerial advisers, if any, did she communicate with about the submission deadline to the Fast-track Approvals Amendment Bill before the advertisement in her name opening submissions was issued?," she asked.

The question points to whether the committee was following the instructions of the House, or the government.

In answer to the question Wedd said: "None. I had a conversation about the submission deadline with the clerk of the committee, as per usual practice."

Brooking sought further clarification on matching Wedd's answers about government expectations "for implementing a short deadline" with Speaker's Rulings that say the time frame is six weeks unless the House says otherwise.

The rules of question time don't require a straight answer to a question, they only demand an MP address it, so speaking about or around the topic is enough to pass the test.

Wedd answered that the government had "made it clear" that the Bill is to be passed by the end of the year and again referred to Standing Order 198, under which she "opened submissions to meet the expectation of the time frame, and this was endorsed by the majority of the committee on 10 October."

Politician v Parliamentarian

Wedd and Brooking's exchange draws attention to the dual role of politician and parliamentarian that each MP navigates.

On the one hand, MPs are typically attached to a party but once elected they also become members of the House of Representatives which means a responsibility to ensure scrutiny of the government.

Whether or not Wedd had met their responsibilities as chair of the committee was also raised in the House.

The shadow Leader of the House, Labour MP Kieren McAnulty, asked the Speaker Gerry Brownlee to review whether Wedd's answer (from Tuesday 11 November) related to their role as chairperson.

"The member is being asked a question in her capacity as chair of the Environment Committee. Is it appropriate for that member, therefore, to be using the answer to a serious question, which was straight to the point, to be broadcasting what her view of the government's intentions are? I believe that is going beyond her responsibility to the House."

Brownlee was of the opinion that it did meet requirements.

"The question did ask why she made a decision. The answer was far too long, but it did appropriately point to the Standing Orders and also Parliamentary Practice. That would back up the point, and make further the point that any decision by a chair has to be backed by the committee, which, clearly, it was," he said.

McAnulty further appealed to the Speaker on Wedd's answer to whether they had a responsibility to say which ministers or ministerial advisers they may have communicated with about the 11-day submission deadline.

"In the answer to the primary question, the member outlined that she made the decision, which was subsequently backed up by the committee," said McAnulty.

"It is, therefore, I believe, inappropriate, or certainly not living up to the requirements of her to address the question, to say it is not her responsibility when she has actually just informed the House that she made the decision. The question as to whether she liaised with or consulted with or, indeed, was instructed by a Minister is entirely valid, and the House deserves a response."

It is the Speaker's role to watch over the House and decide whether MPs are following the rules which Brownlee decided Wedd had done.

"That may have been how you interpreted the question," he told McAnulty. "It's certainly not how I interpreted it. I think the response that was given was satisfactory, and that ends the member's question."

The report back time is another issue raised by the opposition. If the MP in charge of a bill wants a committee to report back in under four months, it triggers a debate in the House which invariably takes up more time. It has become common for report back times on bills to be four months and one day which avoids the need for this debate.

No instruction for a specific report back time was put at the Bill's first reading meaning it would fall to the default of six months at committee. The Environment Committee has voted to report back one month from the Bill's first reading, by 5 December this year.

At Wednesday's question time (12 November) leader of the opposition Labour MP Chris Hipkins said the way debate has been avoided is a concern.

"This is a serious matter. The House, through the Standing Orders Committee, has agreed that where the government seeks to report back a bill in less than four months, it requires a debate in the House,' he said.

"The government can't get around that simply by a select committee chair unilaterally deciding, with no approval by the House and no approval by the committee at the time they make the decision, that they are going to truncate that process. Had the government come to the House and said they wanted the bill reported back before Christmas, it would have had to be debated in the House."

Hipkins said the decision "infringed on the rights" of the public to take part in the process.

"A select committee chair does not have the ability to circumvent that requirement unilaterally. This is a serious matter because it means that a committee chair, without any authority from the House or any authority from the committee itself, has circumvented the rules of the House and infringed the rights of New Zealanders to participate in this process and infringed the rights of the minority in the House at the same time," he said.

"It is a matter, Mr Speaker, that I would suggest that you should consider and take seriously, because your job is to uphold the Standing Orders of the House, and that includes the rights of the minority, which, in this case, have been woefully inadequately overridden by the chair."

While parliament has many rules it is also governed by convention around the interpretation and application of these rules. Bending the rules too far while in power risks setting up a system they will have to adhere to if they end up back in opposition so most parties tend not to stray too far from the status quo.

The Speaker Gerry Brownlee acknowledged there is a gap in the rules that needs to be looked at.

"Well, I'll just choose to ignore the admonishing tones of what you've just offered the House and make it clear that yesterday I spoke at the Business Committee, and, whether we like it or not, this is best described as a gap or a loophole in our Standing Orders. There is a problem with that, it is the Standing Orders Committee that will need to consider it, and I have said I will put it on the agenda for that committee to review."

Standing orders are reviewed every parliamentary term and are currently before the Standing Orders Committee for this purpose. However, the review process amends these rules for the next Parliament and would not be in place before the next election.

A further question from Brooking was put to Wedd at question time on Thursday 13 November but Wedd was not present to answer.

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