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I. Public Statements and Media Reports
On March 6, 2020, it was reported that the New Zealand Parliament was prepared to implement a precinct pandemic plan if necessary and that it had stocked up on face masks and hand sanitizer. The Speaker of the House of Representatives indicated that “[p]reparations for Parliament got underway ’early‘ when concerns about the virus first hit earlier this year.” The plan reportedly includes actions to restrict public access and assemblies and, “in the most extreme case,” the House “would sit less often, with shorter days and fewer MPs, who would be spread out around the Chamber.”
The Speaker noted that “[y]ou can have proxy votes for up to 25 per cent of the House at any one time . . . if the meetings of parliament should be much smaller and people don’t travel as much, you could actually run the parliament, for a short term, with 10 to 12 members.” Furthermore, he stated that, with the agreement of the Business Committee, an adjustment could be made to proxy voting arrangements. In addition, select committees could continue “because technology already allowed for them to be broadcast and video-linked for evidence and submissions,” and “[t]he rules could also be changed to allow for them to be held remotely, with MPs in different locations.” The Speaker said that the pandemic plan and its implementation would continue to evolve in consultation with the Director-General of Health, the Leader of the House, and the shadow Leader of the House (a member of the main opposition party responsible for parliamentary business matters).
The article stated that, during the past year, the Parliamentary Service (an agency that provides administrative and support services to the Parliament) had been working on business continuity planning for security scenarios and natural disasters, and that part of that “had been identifying groups of staff who are absolutely core to the essential running of parliament and identifying those who could work remotely.”
On March 16, 2020, public access restrictions to the Parliament buildings were announced. This included witnesses being required to give evidence to select committees by video conference or teleconference only.
On March 15, 2020, Radio New Zealand published an article on various approaches to running the country during a pandemic. This included discussion about how Parliament could operate, particularly with respect to approving appropriations. It notes that each party is only allowed to have 25% of their MPs absent from Parliament. Any others above this percentage cannot have their votes included in a party vote. The author stated that there are four ways around this rule:
- Parliament can change its own rules via a sessional order. A rule change could increase the number of MPs allowed to be absent and still have their votes count. Say move it to 80% and only 24 MPs would need to be present and could vote on behalf of all of their party brethren.
- Bills could pass with very few votes, (say 8 votes for and 7 votes against). This is within the rules. The House can pass laws with only two MPs in the chamber so long as they are a minister and a speaker. There’s no requirement for anyone else to be there. On paper, just two MPs are capable of providing the Government with money, or passing laws or a budget.
- Declare an emergency. If a National Emergency is declared the 75% present rule is ignored. The Government running out of money would be a literal national emergency.
- Have everyone agree. Counted votes don’t even have to occur if no MP disagrees with a proposal. Yes they do all agree sometimes.
II. Sessional Order in Response to the Current Pandemic
On March 19, 2020, all parties in Parliament supported a motion by the Leader of the House for the adoption of certain procedures “to facilitate the activities of the House and its committees during the current epidemic.” These include allowing the Business Committee to adjust or waive the limit on proxy votes that may be cast by a party during a party vote; allowing oral questions to be lodged electronically; allowing select committees, including the Business Committee, to conduct meetings and other forms of decision-making by electronic means; and giving the Assistant Speaker the power to perform all duties and exercise the authority of the Speaker during an adjournment of the House, if both the Speaker and the Deputy Speaker are absent from duty.
The Leader of the House stated that the motion
proposes putting in place a sessional order that will become part of the House’s rules until the next election. It’s important to note that only minor administrative measures proposed come into effect immediately. The more serious measures would be triggered only if the situation developed in a way that means a significant number of MPs are unable to travel to Wellington to be physically present at Parliament.
With respect to the ability of the Business Committee to make changes to the limit on proxy votes, the Leader of the House noted that “the Business Committee operates on near unanimity. So this is not a question of the Government or even a majority of Parliament adjusting these rules. Any adjustment would require near unanimity.” He also stated that
if numbers in the House became severely depleted for any reason, the Government would not continue with a full legislative program. The House would be left to focus upon scrutiny of the executive and passing any legislation that was necessary to deal with COVID-19 or any other urgent matter, and it’s likely that sitting hours could be reduced in order to effect that. The Business Committee already has the power to adjust the sitting programme if necessary.
In addition, it was reported that, during the recess scheduled for the following week, the Parliamentary Service and Office of the Clerk would prepare and test their systems for remote working of parliamentary support staff, with the intention to have at least 30% of the workforce working remotely at all times.
III. Developments Following the Motion
On March 23, 2020, the Prime Minister announced that the country would move to “Alert Level 4” on its four-level alert system established for the COVID-19 pandemic at 11:59 p.m. on Wednesday, March 25, 2020. At this level, people are instructed to stay home and all businesses and education facilities are closed, with the exception of essential services, and domestic travel is “severely limited.” Following this announcement, the Leader of the House, Chris Hipkins, reportedly stated that
Parliament’s business committee will meet tomorrow [March 24] via teleconference, with the speaker asked to recall parliament on Wednesday. Terms for that would be determined, but Hipkins did not expect MPs to travel to Wellington.
Parliament would need to receive the epidemic notice that the prime minister will soon issue. They will seek a supply bill to allow funding to continue to flow, and a motion to suspend parliamentary business, including everything before select committees. An “accountability mechanism” would be established so that opposition and backbench MPs can continue to critique the government.
“At this point parliament will adjourn. No fixed date for parliament to meet again will be set at this point. We will ask the speaker to recall parliament when it’s appropriate to do that.”
On March 24, 2020, the Speaker confirmed that the Business Committee had agreed on the form of the “accountability mechanism” referred to above. A special select committee will be established that will have “unusual powers” akin to those of the Privileges Committee, which include “subpoena-like powers to summon people and receive documents.” The 11-person committee will be chaired by the leader of the main opposition party (or his nominee) and will have a total of five members from that party (who may rotate depending on the topic of discussion) as well as one from the other opposition party – meaning that the opposition will have a majority on the committee. The Speaker said he believed the committee will meet two or three times per week, “and its work will include hearing from officials and ministers leading the government response” to the pandemic. Meetings will be conducted remotely via videoconferencing, with the chair intending to be in a meeting room in the Parliament Buildings. However, the chair said he would encourage in-person attendance where possible. The proceedings will be publicly broadcast via online livestream.
The Speaker also said that the government will move to adjourn Parliament for five weeks until April 28, 2020.
IV. Legislation and Parliamentary Rules
The motion of March 19, 2020, resulted in the approval of a “sessional order.” Such orders supplement or suspend the Standing Orders of the House of Representatives for the current session of Parliament. For example, Standing Order 155 relates to the casting of a proxy vote and includes the 25% rule referred to above. It will now be read alongside the rule included in the motion allowing the Business Committee to adjust or waive the limits on proxy votes. Standing Orders 37 to 40 relate to attendance and absence of members, including the ability for members to obtain permission from the Speaker to be absent from the House and the requirement for a Minister to be present during all sitting hours of the House. Apart from these rules, and requirements in the Standing Orders for the presence of a minimum number of members for votes on certain matters, there is no explicit general quorum applicable to the House.
Parliamentary Practice in New Zealand states that,
[l]ike many legislatures around the world, the House regulates its own proceedings without intervention by any other authority. The exclusive right to control its own operation is one of the House’s privileges.
. . .
The authority for the existence of Parliament and the House of Representatives, the determination of who is to be a member of Parliament, and many other fundamental parliamentary rules are derived from statutes, principally the Constitution Act 1986 and the Electoral Act 1993. The Bill of Rights 1688 and the Parliamentary Privilege Act 2014 provide the statutory basis for the privileges enjoyed by the House.
With respect to the Standing Orders, it notes that these “are the primary rules of the House, providing for the conduct of its proceedings and for the exercise of its powers” and are “appropriately regarded as constitutional rules.” It also explains the role of the Business Committee in the context of adjusting how the House conducts business:
The Standing Orders furnish the default settings for the usual conduct of the business of the House, but also permit members to adjust these settings by agreement. Such accommodations allow members to focus on matters of immediate political concern, while enabling the appropriate progression of legislation and the holding of the Government to account. The central hub for such negotiations is the Business Committee, which has been accorded a growing array of powers to determine arrangements for sittings and the consideration of business. The House has authorised the Business Committee to make cross-party agreements that have effect despite Standing Orders to the contrary, as long as the arrangements are not discriminatory or oppressive to minority parties. This flexibility for the House to adapt to different political circumstances and demands is not restricted to the Business Committee; there is scope in all parliamentary activities to find pragmatic solutions. The balance of interests encapsulated in the Standing Orders provides the starting point for these negotiations.
Prepared by Kelly Buchanan
Foreign Law Specialist
 Press Release, New Zealand Parliament, Update on Public Access to New Zealand Parliament (Mar. 16, 2020), https://perma.cc/QY2X-FCDE. See also Collette Devlin, Coronavirus: Public Tours Cancelled as Parliament Implements Pandemic Plan, Stuff (Mar. 16, 2020), https://perma.cc/LQ68-87QF.
 Covid-19 NZ Live Updates, March 23: New Zealand Prepares for Nationwide Shutdown, Spinoff (Mar. 23, 2020), https://perma.cc/CJB6-RSLT. See also Collette Devlin, Coronavirus: Parliament to Shut Down with No Fixed Return Date, Stuff (Mar. 23, 2020), https://perma.cc/W87M-9R2F.
 Sessional Orders, New Zealand Parliament, https://perma.cc/K6D4-CDPS. See also Parliamentary Practice in New Zealand 16 (Mary Harris & David Wilson eds., 4th ed., 2017), https://perma.cc/JS57-D3RW.
 Parliamentary Practice in New Zealand, supra note 24, at 54-55.
 Id. at 9.
 Id. at 12.
 Id. at 13.
Last Updated: 12/30/2020