5 May 2020

Omnibus blunderbuss: hitting 45 laws in one shot

From The House , 6:55 pm on 5 May 2020

Parliament is sitting shorter hours with fewer MPs present but is still achieving and effecting a surprising amount. On Tuesday the COVID-19 Response (Further Management Measures) Amendment Bill and the Immigration (COVID-19 Response) Amendment Bill both survived first readings and now go to select committee.

The topic of the immigration bill is self evident, but the further management measures bill is the perfect example of something called an omnibus bill; a bill that amends more than one other piece of legislation. 

Omnibus bills are the sawn-off shotgun in Parliament’s legislative weapons rack, and like a blunderbuss are designed to impact as widely as possible. 

A Flintlock Blunderbuss in the collection of the Metropolitan Museum of Art

And 18th century Indian flinklock blunderbuss from the collection of the Metropolitan Museum in New York. Parliament's legislative flintlock is less ornately carved than this one from the Kingdom of Mysore. Photo: Creative Commons

How wide can a scattergun scatter? 

This omnibus bill is a pretty broad blunderbuss, and makes changes to all of the following areas of current legislation: take a (very) deep breath!

  • Arms Act 1983:
  • Biosecurity Act 1993:
  • Building Societies Act 1965:
  • Charitable Trusts Act 1957:
  • Commerce Act 1986:
  • Companies Act 1993:
  • Construction Contracts Act 2002:
  • Consumers’ Right to Know (Country of Origin of Food) Act 2018:
  • Contract and Commercial Law Act 2017:
  • Coroners Act 2006:
  • Corrections Act 2004:
  • Courts (Remote Participation) Act 2010:
  • Credit Contracts and Consumer Finance Act 2003:
  • Customs and Excise Act 2018:
  • Epidemic Preparedness Act 2006:
  • Financial Markets (Derivatives Margin and Benchmarking) Reform Amendment Act 2019:
  • Financial Service Legislation Amendment Act 2019:
  • Fire and Emergency New Zealand Act 2017:
  • Fisheries Act 1996:
  • Food Act 2014:
  • Freedom Camping Act 2011:
  • Friendly Societies and Credit Unions Act 1982:
  • Gambling Act 2003:
  • Incorporated Societies Act 1908:
  • Industrial and Provident Societies Act 1908:
  • Insolvency Act 2006:
  • Insolvency Practitioners Regulation Act 2019:
  • Insolvency Practitioners Regulation (Amendments) Act 2019:
  • Limited Partnerships Act 2008:
  • Local Electoral Act 2001:
  • Local Government Act 2002:
  • Local Government Official Information and Meetings Act 1987:
  • Local Government (Rating) Act 2002:
  • Mental Health (Compulsory Assessment and Treatment Act) 1992:
  • Māori Community Development Act 1962:
  • Māori Fisheries Act 2004:
  • Māori Trust Boards Act 1955:
  • National Animal Identification and Tracing Act 2012:
  • Parental Leave and Employment Protection Act 1987:
  • Partnership Law Act 2019:
  • Property Law Act 2007:
  • Resource Management Act 1991:
  • Te Ture Whenua Māori Act 1993:
  • Unit Titles Act 2010:
  • Waste Minimisation Act 2008.

That’s 45 different laws changed with a single shot from the omnibus blunderbuss. Which is of course the point of an omnibus bill. 

A pandemic (and a lockdown) have so many diverse impacts that many, many things are affected. So this one allows everything from electronic signatures to enabling swabs from dead bodies.

If a separate law was required to fix every area affected by Covid-19 Parliament would still be passing the laws needed well after the epidemic was over. Not exactly efficient. 

Caution, lawyers at work 

I can only imagine how many dozens of staff and lawyers in different government departments have been crawling over legislation to discover what needs to change in their own areas of responsibility. 

The Parliamentary Counsel Office (who write non-tax legislation) usually get months to work on bills, which in turn have been carefully developed across months, if not years by ministries and departments. The quick turn-around on these 133 pages of drafting must have generated enough steam to keep Parliament’s lights on.

And probably in many cases while also supervising children’s home lessons.

And all for a bill that dies in two years (May 31st 2022), when (fingers crossed) the epidemic is well behind us and these changes will no longer be required. 

Aren’t sawn-off shotguns outlawed?

Yes, and omnibus bills are also not encouraged. 

Standing Order 260/1 says "Except as otherwise permitted by the Standing Orders, a bill must relate to one subject area only." 

Bills are not allowed to include all-and-sundry provisions and the Speaker has the job of checking them and discharging or demanding amendments to legislation that reaches too widely. 

But some common omnibus bills are specifically excepted. Finance or tax legislation dodges the rule, as do confirmation bills, local bills, Maori purposes bills, land and reserves disposal bills. Also statutes amendment bills include nothing but amendments but all are non-controversial and any of them can be killed by a single MP) .

There are also four other ways to get around the rule:

  • An interrelated topic, unified by a single broad policy.
  • A bill that makes similar amendments to different bills (e.g. a rule that is referenced in numerous laws).
  • The Business Committee agrees to bend the rule.
  • Standing Orders are suspended to permit it (i.e. the House votes on notice to ignore the rule).

This week's Covid-19 Bill was agreed to by the powerful, cross-party Business Committee. You might presume (indeed, I did) that the epidemic response is enough of a unifying purpose to fit the single broad policy test, but the Clerk of the House says that it doesn't pass the test. So this Bill needed to be approved by the business Committee. 

The Government is working closely with the Opposition on the legislative response to Covid-19 and the Business Committee was also required to agree to debate immediately after introduction.

No pork please

Legislatures in some countries are fine with omnibus bills (I’m looking at you USA).  Why are they banned here? Three obvious reasons occur to me but there are likely others.

Firstly, if bills are allowed to include a jumble of topics it could make for awfully messy law (though in New Zealand the various amendments would get spread around into the various legislation they affected). 

Secondly, a bill that covers lots of areas restricts the time for debate over each of them. It also makes it much harder for the public to follow what Parliament is up to and make helpful submissions. 

Thirdly, it opens the door to toxic amendments; unrelated provisions that might include those added with political, personal or even malicious motives.

Such amendments might provide ‘pork’ (say, cash for a local MP’s constituency or their supporters); personal projects; or even a poisoned pill (something you'd never agree to normally that either kills the whole law or is grudgingly left in).

It’s worth noting that in New Zealand such toxic amendments could be killed at the committee stage.