Integrity Briefing: Pay equity urgency and vested interests

There are many good reasons to be disturbed and dismayed by the Government's pay equity law changes. And maybe there are reasons to be pleased and supportive of the changes. Yet this debate between these perspectives won't occur in a healthy way that helps shape the legislation, because regardless of the rights or wrongs of the Government's pay equity changes, the legal amendments were announced on Tuesday morning and quickly passed into law by the end of Wednesday. It was done and dusted before the usual scrutiny and accountability mechanisms could be applied.

This use (or abuse) of parliamentary urgency, in which legislation is pushed through without the lengthy procedures or a select committee examination, is a process that lends itself to our constitution being labelled by scholars as an "elective dictatorship" – an arrangement in which majority governments and prime ministers can push through any laws on a whim without adequate checks and balances. And unfortunately, this "elective dictatorship" in which parliamentary urgency is being abused is occurring more and more by governments of all stripes.

The outcome is good for vested interests, lobbyists, and insiders, and very bad for public participation, trust in politics and democracy. However, for those of us interested in advocating for a stronger democracy and improved integrity in our political processes, it's essential to understand why parliamentary urgency is popular for both politicians and the public. And it's worth considering some new ideas for reform.

How the abuse of parliamentary urgency tilts the playing field towards vested interests

I was interviewed this week for a TVNZ Q+A story about the increased use of parliamentary urgency in the context of the pay equity changes being rammed through on Tuesday. You can read a news item about the issue here: Urgency under scrutiny as pay equity changes rushed through.

In this feature, I'm recorded saying: "When governments push through legislation, when they use urgency, they often make bad law… That's because there's not enough scrutiny, there's not enough accountability on those things and mistakes get made…. More than that, I think it's a real recipe for the public not really being listened to… and normally that tilts the field in favour of vested interests. It's the insiders, it's the lobbyists, it's the well-funded business that often have the ear of the government.”

To explain this further, it's useful to consider how the legislation process typically works. When a new bill or amendment goes through the full process, there's at least a window for community groups, watchdogs, and ordinary citizens to raise concerns or offer improvements. This is "democracy,” helping level the playing field for all sections of society to potentially influence laws.

But when a bill is cobbled together behind closed doors and shoved straight to final votes, those with insider access are the only voices likely heard. Lobbyists and vested interests know how to work fast. Indeed, they often have direct lines to ministers or officials well before a bill sees the light of day. If the public submission process is eliminated, you can bet the government only got feedback from select insiders. Thus, urgency can create a "fast lane" for vested interests to enact their pet provisions without broader scrutiny. Industry lobbyists, well-resourced businesses, and other power players thrive in environments with less transparency. They can exert disproportionate influence precisely when fewer eyes are watching.

It would be naïve to think that New Zealand is not immune to the backroom influence we see in other countries, most overtly in the US. In many ways, New Zealand has a much more centralised and concentrated power structure than comparable democracies, which means that the use of urgency is even more conducive to insider influence.

In fact, the compressed timeframes of urgency magnify the influence of ministers and their close confidantes. With debate shortened and committees skipped, an opposition MP has little opportunity to invite an independent expert or a community representative to present contrary evidence. Instead, the government's explanatory speeches – often thin on detail in urgency – dominate the narrative, and any supporting voices have likely been pre-arranged. The scale tips toward those already in the room when the law was drafted. This dynamic undermines the public interest, because policies could be skewed to benefit narrow groups without the usual filters that catch such bias.

Consider, for instance, a scenario where an environmental regulation is loosened under urgency as part of an omnibus bill. Without public submissions, perhaps only the industry lobby's viewpoint was fully considered, and environmental groups had no formal chance to point out the risks.

Or take the pay equity case: by not consulting publicly, the Coalition Government essentially only heard the "we're spending too much on these claims" perspective (from Treasury or business lobbyists) and not the women workers whose pay equity claims will be derailed. This is how vested interests can quietly capture policy under the cover of urgency. Urgency in this way inevitably tilts the scales in favour of powerful interests and erodes the broader public good. When lawmaking becomes a rushed job, those with money, influence, or insider knowledge are poised to take advantage, while ordinary citizens are left in the dust.

In sum, urgency without safeguards equals opacity, and opacity is the friend of the already powerful. It's a recipe for weaker democratic control over policy and a greater risk of special-interest riders finding their way into law. That might not always happen, but the point is that the opportunity for it increases dramatically when normal scrutiny is removed. For the integrity of policy-making, it's crucial that significant legislative changes be exposed to sunlight – the sunlight of public debate and transparent consideration. Urgency overuse is a move in the opposite direction, into the shadows, where democratic guardrails are lowest.

Why they get away with it – the Public appetite and political zeitgeist

Given these stark downsides, one might wonder: How do governments get away with repeatedly abusing urgency? Where is the public outrage? The sad truth is that procedural issues like this often struggle to get public traction. There are a few reasons for that, tied to the current political zeitgeist and public attitudes.

First, as I said in the Q+A programme, "There's a great public desire to see things get done. The public's more interested in decisive action at the moment than they are with constitutional niceties". In recent years – especially post-pandemic – voters have been bombarded with promises of urgent action on everything from housing affordability to crime. Politicians across the spectrum talk about "delivery" and "moving at pace."

This has cultivated a mindset among many voters that speed is good, and that a government proving it can enact change fast is a sign of effectiveness. When a new government comes in with a 100-day plan of sweeping reforms, a significant portion of the public (especially that government's supporters) welcomes rapid action. They are eager to see election promises fulfilled pronto and may have little patience for the niceties of parliamentary process.

In the current climate, the public zeitgeist favours decisive delivery over deliberative process. This gives cover to governments to use urgency liberally – they can claim, "We're just doing what we said we'd do, and doing it fast because that's what people want." Indeed, the current administration has explicitly framed its urgency spree in precisely those terms: they argue they have a popular mandate to enact change immediately, and that New Zealanders don't want things held up by procedural delays. As PM Luxon said unapologetically about the use of urgency, "Where it makes sense, we will move with great speed."

Secondly, the complexity and abstract nature of parliamentary procedure makes it difficult to capture public attention. Let's face it, "urgency motions" and "standing orders" are not exactly headline-grabbing concepts for the average voter. It's much easier to focus on the substance of policy (pay equity, tax cuts, crime laws, education reforms, etc.) than the process by which those policies are enacted. Governments know this.

They calculate that while opposition MPs and a few constitutional experts will cry foul, the broader public, by and large, won't be tuned in to procedural abuses. Unless the abuse is egregious enough to cause a visible scandal, it remains a beltway issue. The vast majority of the public just hear that politicians are moving fast.

The problem is not helped by the fact that all political sides are guilty of abusing urgency. So when, for example, the opposition of the day calls its misuse "a constitutional disgrace" – as Chris Bishop correctly did a few years ago when Labour misused urgency – it doesn't really cut through, because that same opposition was abusing urgency when it was previously in office, and will do so again egregiously when it's next in office. So, oppositions will thunder about "abuse of democracy" (as they should) but their critique can be easily painted as partisan whining or obstructionism. The government of the day can retort, "We're just doing our job efficiently," and much of the public shrugs.

Restoring Integrity: Reforming urgency and re-engaging the public

In the Q+A programme I stated the need for a cross-party commitment to pull back on the overuse of urgency. We can't actually get rid of parliamentary urgency – because it has a legitimate place in Parliament for dealing with emergencies and necessary haste. But we now need some debate about how to find a much better balance on the use of urgency. So, here are some other suggestions I made in my interview, but didn't make the broadcast.

1) Require super-majority for extreme urgency

One bold reform would be to require a super-majority vote (say two-thirds of MPs) to approve urgency that skips the select committee stage. This idea takes inspiration from countries like Germany and Denmark, where a broader consensus is needed to truncate normal legislative timelines.

If implemented here, it would mean the government alone couldn't impose urgency for all stages of a bill unless at least some opposition members agreed it was necessary. That would dramatically curb partisan misuse.

Of course, a determined majority could still use urgency for extending hours or faster progression without skipping public input, but the most dangerous aspect (bypassing committee scrutiny) would be subject to cross-party veto. In reality, Labour and National can normally agree on vital issues requiring urgency.

2) Require retrospective scrutiny of legislation passed under urgency

Another idea, suggested by the Law Society, is to build in retrospective scrutiny. For example, if a bill is passed under urgency without select committee, then a select committee review must be held post-enactment (a "post-mortem" inquiry).

This would act as a deterrent – any government would know that any shortcuts will still face scrutiny later in public. Indeed, the Law Society proposed triggers for automatic review of urgent legislation, although disappointingly, the politicians on the Standing Orders Committee recently rejected that fix. It's worth revisiting such proposals in the next Standing Orders review.

3) Strengthen the "Extended Hours" alternative

If legislation is taking too much time, or there is too much of it to be progressed, one simple answer is to let MPs have more sitting days or longer days, but not to short-circuit public consultation.

In 2011, Parliament introduced "extended hours" as an alternative to urgency for simply extending sitting time without waiving other rules. The intent was to reduce the misuse of urgency purely to make Parliament sit longer (previously governments would move urgency even just to make progress on the Order Paper after-hours).

Strengthening the use of extended hours motions – which require some cross-party consent – could further reduce reliance on full urgency. For example, the Standing Orders could be adjusted so that if the only rationale for urgency is "to make progress on legislation" (no specific emergency), then extended hours must be used instead, preserving the select committee process. This is a technical tweak but could prevent a lot of bills from being fully rushed.

4) Cross-party commitment

The main reason that the urgency problem continues, and gets worse, is there is essentially a cross-party commitment to allow the ability of governments to misuse the mechanism. Yes, oppositions complain endlessly about their opponents abusing urgency, but they are careful not to commit to reforming this problem because it suits them and their allies to have this weapon themselves to use in the future.

Therefore, although it might seem idealistic, there must be pressure put on parties – especially the Opposition parties – to create a cross-party accord on the issue. The politicians are likely only to do this if forced by public pressure. For example, they might forge an agreement that no government will use urgency to pass bills that were not signalled in its election manifesto. Or perhaps Parliament's Standing Orders Committee could broker a "good conduct" code on legislative urgency.

The above is just a list of four potential solutions that come to mind – there are surely dozens of others worthy of discussion. The main point is that a continued campaign of handwringing complaints from academics and constitution reformers about the misuse of parliamentary procedure will not simply shame the politicians into better behaviour.

Nonetheless, there needs to be more focus on "why" the abuse of urgency matters. Too often, the issue comes across as abstract or pedantic, but what needs to be conveyed is that the urgency misuse is part of a bigger problem in which vested interests are able to thrive in a legislative process where there is little transparency, accountability and scrutiny. The result of this is outcomes like the pay equity rollbacks, as well as many other areas where the status quo of inequality, environmental degradation, and poor quality of life for many is allowed to stand.

Dr Bryce Edwards

Director of The Integrity Institute