The Minister for RMA reform has admitted he is not a fan of a wide-ranging clause in his new Resource Management law, which will allow the Government to change parts of the legislation
RMA reform: Chris Bishop admits he dislikes Henry VIII clause despite putting one in new law, and that he tweets too much
However, he defended this clause by noting that Labour had included a similar clause in one of its own laws passed to replace the RMA - the very ones Bishop was repealing.
“There’s a Henry VIII clause in the existing NBA [Natural and Built Environments Act] that Labour passed. It’s there as a catchall for any unforeseen consequences. The officials tell me it is necessary. It’s a very complicated piece of legislation and amends a whole range of different things,” Bishop said.
The bill is being passed under urgency this week. The clause was brought to public attention yesterday when Victoria University Law Professor Dean Knight began posting about it to X, the platform known as Twitter.
Bishop is not the first person whose lawmaking has fallen foul of Knight’s Twitter account, which is keenly followed by MPs and constitutional scholars. The entrenchment of part of Labour’s Three Waters reforms was also picked up by Knight, and posted to his account - an action that led to the offending clause being removed.
In Parliament last night, Bishop said he had seen the tweets.
“I am an inveterate tweeter - got to get off the old Twitter,” Bishop said.
Labour’s Grant Robertson interjected, saying, “you really do”, to which Bishop replied, “I know, yeah”.
Knight told the Herald that the clause in the new legislation allows the Government to “by secondary legislation repeal, revoke or amend different provisions with modifications or additions to address transitional matters.
“It is secondary legislation that allows them to do that to primary legislation, so that is why it is constitutionally eyebrow-raising, because it is the executive government changing the output of the democratically elected House of Representatives,” Knight said.
Knight said it was important such clauses were only used “where there is a justification”. The problem with this bill was that it was passed under urgency, leaving no time for interested observers to work out whether it was justified or not.
“The residual power to mop up unforeseen consequences and things like that - there is an argument that that might be not objectionable; the difficulty here is we don’t know because the Henry VIII clause and the bill itself did not go through a select committee process because it was passed under urgency.
“So you’ve got two constitutionally [and] democratically concerning processes or provisions that combine to elevate the eyebrow raising,” Knight said.
He said there was a third problem with the bill, which is that it was not a “clean” repeal bill, because it included new provisions in the replacement RMA.
Knight described it as a “legislative Pik ‘n Mix”.
“It’s an unusual bill, it’s not a clean repeal, it’s being done under urgency, without select committee scrutiny and public submissions, and the heart of it is this blank cheque that is given to the executive to modify and override those provisions - those three things combine to be concerning,” he said.
Thomas Coughlan is Deputy Political Editor and covers politics from Parliament. He has worked for the Herald since 2021 and has worked in the press gallery since 2018.