Categories and strategy: The path of Parliament's members' bills

Some of the most socially significant law in Parliament's history originated as a member's bill. Without luck in the members' bill ballot, it is possible that gay law reform, marriage equality, end-of-life choice, or anti-smacking law reform would have waited years, deemed too controversial.

But not all members' bills are social blockbusters. Many have less lofty ambitions.

Members' bills often correct gaps in legislation or close loopholes - you might call them tidy-ups. They can also be political statements; to tautoko (support and affirm) party policy, or offer a counter-response to it.

Bills that could be seen as examples of this are Hana-Rawhiti Maipi-Clarke's Members of Parliament (Duty to Uphold Te Tiriti o Waitangi) Legislation Bill / Te Pire mō Te Here ki Te Tiriti o Waitangi, or Hamish Campbell's Gang Free Ports Bill.

Members' bills from governing-party back-benchers often have very narrow policy aims, but their very presence has a purpose, to reduce the odds of opposition bills being picked.

The House chatted to National's Andrew Bayly and Labour's Phil Twyford (who have a total of 26 years of Parliamentary experience between them), about the political strategy behind what bills go into the ballot.

The Basics

Parliament's agenda is dominated by government bills - legislation agreed by Cabinet and put forward by government ministers to enact government policy.

Non-ministers can also propose laws. Any backbench MP (non-minister) can develop an idea for a law change, write a draft bill, and submit it to Parliament's Table Office. Usually that takes the form of a member's bill. (Local bills and private bills are two other types of non-government bills.)

The difficult part? Being lucky enough to have your bill drawn from the ballot. Only eight bills are available to debate at a time, from about 90 sitting in the old biscuit tin used to draw the ballot.

Bayly and Twyford: Members' bill strategy

From Bayly's perspective, members' bills generally fall into one of three types.

"The first one," he says, "is backbenchers who see the opportunity to test some thinking, which they might want to put into legislation."

"Secondly, there are sort of additions to existing legislation that people want to seek clarification on, so they might be technical in nature or have some benefit when it comes to interpretation. For instance, [the current law is] not working well, it needs to be improved.

"The third [type] are slightly off [from] traditional government thinking, but they are nonetheless maybe the cause of the day, and those are the ones that can extend where we are in terms of debate into new areas, and they are the more adventurous ones."

Bayly's counterpart across the aisle, Phil Twyford, reckons members' bills are one of the few opportunities MPs get to break out of the confines of the partisan default they generally follow at Parliament.

"Our parliamentary system," Twyford suggests, "is so dominated by political parties that exercise discipline and whip their MPs to vote on a party line. Members' bills have a really important function in our system because they provide a little bit of an outlet. They allow individual MPs to have a go, and to try to get some new law made outside of the party discipline."

Twyford suggests that with the introduction of MMP came the hope that lawmaking would be a bit more bipartisan. The reality, he says, is that MPs are still very much locked in to their parties.

"I think that members' bills offer a little glimpse of how the world could be a little bit different and a bit more spontaneous, a bit more interesting."

Members' bills, while a valuable tool for any MP, perhaps mean that little bit more to opposition MPs, who have less influence in a legislature dominated by the governing parties. This also means, Bayly suggests, that they can "be a bit more adventurous".

Of course, being adventurous doesn't always equate to being successful. Members' bills still need to receive a majority of MP votes in the House, which for opposition MPs is rare but certainly not unachievable. Twyford's Labour colleague, Camilla Belich, recently won support for a member's bill that made employer theft of employee wages a crime. Twyford believes it is a bill "the government wouldn't have usually supported". He says that as an opposition MP, "that's kind of a special thing".

Belich's bill even split the governing coalition partners (New Zealand First voted with the Opposition in support; National and ACT voted against). Members' bills can be divisive, even within parties, especially if they relate to social or conscience issues.

Bayly says those bills have the potential to "cut that social strata right across the whole party, and in many cases, there are certain issues that people have a personal vote on, even within caucuses".

Traditionally these personal votes have been for bills relating to alcohol, drugs, religion, sex, abortion and so on, and they can originate from an MP anywhere on the political spectrum. Members' bills are free to deal with all the trickiest issues. They can't do everything though. Bills with ideas that would rely on a big investment of money can be vetoed by the government, even if they are passed in the House.

Governments can adopt a member's bill as their own, though it might be changed as part of the process.

"[In government] you are sort of tied down into a different type of bill", Bayly says. "For instance, we've just got a new bill around phone (social media) usage and things like that for under-16-year-olds, which has come through, and is actually going to be adopted as a government piece of legislation. It can be quite useful in terms of driving the social agenda, but also government agenda over time."

• Social media ban for young people to be investigated - Luxon
• National MP puts forward member's bill to ban under-16s from social media

If the government might adopt your bill anyway, why not go straight to the boss with your idea?

The answer, Bayly suggests, comes down to the fact that Parliament's legislative agenda is jam-packed.

"Traditionally, we pass between about 80 and 100 bills a year, and all ministers are trying to get bills up. A lot of these [members' bills] are outside this normal cycle of going through the update of the regulatory system, and therefore, [members' bills are] a way to interject and make a change much more quickly outside of that cycle."

So you've got your bright idea that you want to turn into a member's bill, what next?

"This place is very collective and very tribal," Twyford says. "Group discipline is everything and I'm sure it's the same for all the parties. If an individual's got a bright idea, you have to take it to caucus, usually to a caucus committee, and get your colleagues' agreement before you are given the license to go and put it in the biscuit tin."

Once your idea is sound, and your colleagues are okay with it, then you put pen to paper, and draft an actual piece of proposed legislation. This is the "nub of the work" in creating a member's bill, Bayly says.

"[It's important to] draft it in a way that is appropriate and actually gets to the issue, and as the Parliamentary Counsel Office (which does all the legal drafting here in New Zealand) will tell you, it's pretty hard to do that appropriately."

(The Parliamentary Counsel Office only drafts government bills, but MPs can get assistance from the Office of the Clerk for non-government bills.)

Once you're satisfied the bill has been drafted "appropriately", (as Bayly put it), you knock on wood, wear your lucky tie, keep a rabbit's foot, and play the waiting game to see if it is drawn from the tin and added to the Order Paper for debate.

Some MPs are lucky and get multiple bills picked from the ballot, other MPs pass long careers in Parliament without a single member's bill chosen.

If your bill gets drawn and survives a first reading, then Bayly says, "you've got to go into the select committee, and often the [departmental] officials look at your bill and think it's a bit of a nuisance for them and [they] may actually be [against it progressing, as well as there being possible opposition from], government ministers or members. So, you know, it's not an easy road, but it's great when it happens."

To listen to the full interview with Phil Twyford and Andrew Bayly, click the link near the top of the page.

*RNZ's The House, with insights into Parliament, legislation and issues, is made with funding from Parliament's Office of the Clerk.

Sign up for Ngā Pitopito Kōrero, a daily newsletter curated by our editors and delivered straight to your inbox every weekday.