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September 27, 2010 | by  | in Features |
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In Gerry, we trust?

Salient writer Nigel Smith looks into the legal and constitutional implications of Parliament’s recent passing of the Canterbury Earthquake Response and Recovery Act.

A fortnight ago the Canterbury Earthquake Response and Recovery Act was passed and New Zealand became, in theory, a dictatorship. While it’s unlikely anyone will notice, the Act has had academics in uproar as some of the basic principles of New Zealand’s constitution have been left in tatters.

Only the legislature writes the law

New Zealand’s constitution is based on the concept of separation of powers—a constitutional principle found in varying degrees in all liberal democracies. There are three ‘branches’ of power that rule our country: the legislature, the executive, and the judiciary. At the most basic level, it works like this: the legislature writes the law, the executive carries it out and the judiciary interprets the law if something is brought into question. It’s a protection against the old adage of ‘judge, jury and executioner’. The separation of powers ensures that no one branch has too much power, or suffers a lack of scrutiny. In contrast, a dictator would control all law-making power—able to change and affect any law they wished—and also the application of the laws they enacted. This concentration of power is what the principle of separation of powers is trying to prevent.

So given that crash course in constitutional principles, one must consider how they would feel if the legislature, being the 122 MPs sitting in the House of Representatives, passed a law that said the executive (essentially being the National party in government) could pass, change or alter any law at will, without a vote in Parliament and with almost no judicial scrutiny. On 14 September, with surprising quietness, the New Zealand Parliament passed a law that did just that.

The Act

The piece of legislation in question is called the ‘Canterbury Earthquake Response and Recovery Act 2010’ and was made in response to the recent natural disaster in Canterbury. The legislation is designed to enable the government—the executive—to quickly alter legislation to facilitate repairs and reconstruction around Christchurch. All well and good, but the legislation goes well beyond enabling a few minor tweaks, as it theoretically empowers the executive to change pretty much any law they want, with few legal repercussions.

This isn’t any sort of exaggeration—take a look at the legislation. Section 6(1) says that the Governor General may make any provision considered reasonably necessary or expedient to facilitate the reconstruction of Canterbury on the recommendation of the Minister. Simply put, by convention, the Governor General does what Ministers tell him to do, so if a Minister asks for a change, then it happens. Next step, what legislation can be changed? The Act lists twenty or so other Acts but states “including (but not limited to)”. This means every single piece of legislation ever passed by the New Zealand Parliament could potentially be changed. There are notably five excluded pieces of legislation, such as the Electoral Act and Bill of Rights Act, but there is no general restriction. That leaves open for change legislation like the Crimes Act, the Conservation Act, or even the Prostitution Reform Act if the change can be worked within the very wide purpose of the Act.

The next important problem is that the section states: “The recommendation of the Minister may not be challenged, reviewed, quashed, or called into question in any court”. Recalling the basis of our constitution, this seems to go in the face of the understanding that the courts will remain as a check on the exercise of power by being able to review decisions made under an Act. The Canterbury Earthquake Act removes all judicial oversight of executive action. In summary, where the constitutional basis of New Zealand is a separation of powers between legislature, executive and judiciary, this Act empowers the executive to act without heeding either the legislature or the judiciary.

Academic response

Shortly after the Act passed into law, Senior Law Lecturer at Victoria University, Dean Knight, made news by describing the Act as a “constitutional outrage”.

“It’s lazy legislating,” he says. “There was a right way and a wrong way to provide for the post-emergency recovery and reconstruction phase and the Government, and Parliament, chose the wrong way.”

His concern is with an approach granting wide discretion to the Government to alter any law by Order in Council. He believes that there would be a simple alternative in passing narrower laws as needed which would still get the job done and would keep our constitution intact.

“These aren’t just constitutional niceties—they are the foundation of our system. The effect of the bill and the Order in Councils is to shut the people out of the decisions made about how their community is to be reconstructed. Democratic processes which would have allowed input into and scrutiny of plans and proposals have been suspended and replaced with executive decree and that’s not acceptable in a democracy.”

Currently, the only limiting factor on the Act is that it must be used for the purposes of the Act, which is generically to aid in the recovery of Christchurch. However, as Knight and a number of other academics point out, a number of steps could be taken, without judicial oversight, in the interests of Canterbury:

  1. The Minister decides that life is too difficult for Christchurch citizens so decides to remove any tax requirements on citizens in Christchurch, but to balance things out decides to increase the tax rate for all non-Cantabrians.
  2. The Minister could decide that, as there is a huge demand for resources to rebuild Christchurch, a law is to be passed which allows open mining in National Parks to harvest more resources.
  3. The Minister decides that Bob Parker, Mayor of Christchurch, is slowing down progress in repairing the city, so suspends the Crimes Act and has him murdered.
  4. The Minister is outraged by the actions of looters after the earthquake so declares a retrospective amendment (he can do that under section 7(4)) to establish the punishment of the death penalty for all those who looted—despite that fact that they didn’t know that would be the punishment when they committed the crime.

While perhaps these are a slight exaggeration, and any such suggestion would probably face serious political repercussions, what is crucial is that legal limitations on such use of power no longer exist.

Trust in Government during times of emergency

In reality, all these concerns are probably little more than interesting, as while the power is there, the intention of the Act was not to significantly alter our constitution. Gerry Brownlee, Minister for Energy and Resources, explained at the introduction of the Bill: “The Building, Local Government and Resource Management Acts are not designed for the special circumstances Canterbury faces. We don’t want recovery work being slowed or stopped by filling out paperwork.” The goal is admirable. It cannot be ignored during academic discussion that in the meantime there is very real damage to the lives and city of Christchurch.

The legislation as it stands has a sunset clause, meaning that from April 2011 it will cease to exist. The nature of the Act also means that any decision made by Order in Council ought to be reviewable by the Regulations Review Committee. However, the significant effect of this Act makes it unclear whether review by the Committee or by the courts could take place, and there are strong opinions on either side of the issue.

In a recent lecture, the Minister of Justice, Simon Power, was quick to point out that academics can do little to complain about legislation that had the unanimous support of the House of Representatives, and, by democratic mandate, the full support of New Zealand. The vote in Parliament doesn’t tell the full story and there were clear indications that a number of parties would have rather not supported the legislation. Speaking on behalf of the Green Party during debate in the House, Kennedy Graham made his party’s view clear, expressing discomfort that “the Canterbury Earthquake Response and Recovery Act will be [with the five exceptions] the supreme law in the land”.

Charles Chauvel stated on behalf of the Labour party on the issue:

“We voted for it—as did the Greens and all parties in Parliament—not because we thought it was good law, but because we decided that the people of Canterbury needed to know that Parliament was unanimously supporting them to rebuild their lives. Also, frankly, we’d rather not spend the next 18 months being portrayed by National and the media as having obstructed the post-earthquake recovery.”

It is reasonable to say that it would have been political suicide for any party to vote against this legislation, which is perhaps more telling than unanimous support for the powers given by the bill.

Cause for concern?

“No one seriously expects that the powers will be grossly abused and the death penalty reintroduced, but there is potential for them to be misused in the name of the earthquake,” Knight says.

There are two concerns. The first is where normally there would be legal restraint on such actions, the situation would seem to be now, in the words of Kennedy Graham, “Government is essentially saying we must trust it not to do anything silly”. The second is where the Government uses the Act to consider things that are “clearly not urgent but can be justified in the name of recovery and reconstruction”.

The purpose of our constitution is to ensure that the country is never in a situation where it must ‘trust’ an individual not to act in a bad way, as history has taught us that this is never a risk worth taking.

The recent documentary, Draquila—L’Italia che trema, is the investigation of powers exercised by Italian Prime Minister Silvio Berlusconi after similar legislation was passed in the aftermath of a large earthquake in 2009. A highly controversial film in Italy, it tells of how meetings of more than three people were effectively banned under the terms of emergency response effort.

One would not expect the government to attempt to pass a similar rule, but without the usual process of legislative analysis of a decision, the chances of legitimate law-making decrease drastically.

This is also a concern where the government uses its new-found powers to pass laws which aren’t urgent and don’t undergo correct scrutiny. As Geddis succinctly puts it, once you give a man a hammer, suddenly everything starts to look like a nail. Before the Act even passed there were fears of this occurring. Nick Smith said during debate: “One issue I am considering as Minister for the Environment is that it might be sensible, given the number of fatalities that have occurred historically around earthquakes and chimneys, and given that I think this House shares a desire to improve the air quality of Canterbury, for us to pass some extra Orders in Council to ensure that wherever possible we eliminate the chimneys and move Christchurch, Ashburton, and other communities on to having a cleaner air quality.”

We should be fearful of attempts to pass legislation under the guise of this Act which bypass the law-making structures we have in place for a reason. We are not likely to see the power wielded against the will of New Zealand but the Act is a risk that all New Zealanders should be conscious and wary of.

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Comments (5)

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  1. Democracy is not a done deal in any country. “The Canterbury Earthquake Act removes all judicial oversight of executive action.”

    To maintain democracy, citizens must be alert and informed. Thank you to Salient for being alert. There is need to be vigilant even in the great country of New Zealand.

    Please also consider an unchecked power of the judiciary: judges in New Zealand are not required to give reasons for decisions. When this happens, the public is denied ability to scrutinze (if) how that acts of the legislature have been applied in a judgment.

    Yes, hearings are public. But scrutiny of judicial power is made more difficult as there is no general right of public/media access to filings. Consider how (without knowledge of the background in a case) the effect of a public hearing is diminished.

    Does “Right to a Fair Hearing” under Article 14 of the International Covenant on Civil and Political Rights require judges to give reasons for decisions? Did the Supreme Court allow this question to be determined when application was made in 2009?

    Be informed at http://www.DavidVersus.org.

  2. Non-legal Beagle says:

    Blah blah blah… so which of these academics has posited the “right way”? Oh yah, that’s right, none of them.

    NZ is not in a dictatorship for several reasons:
    1. At most, CANTERBURY would be in a dictatorship.
    2. As you note, certain crucial pieces of legislation (oh yeah the ones that regulate our rights, including our right to vote) have been left out.
    3. The government is still subject to election every 3 years.
    4. The PM still appoints and can remove Ministers and the PM needs the confidence of the house, ie the Minister is not above checks on his behaviour from his colleagues.
    5. The governor-general, BY CONVENTION, acts on the advice of Ministers. He could well refuse to assent to the “Kill all the babies in Christchurch Regulations 2010″.
    Which is all to say that, sure the legislation isn’t ideal, but there are still checks and balances, it’s far from a dictatorshup, and this is the sort of hyperbolic wank we expect from legal academics.

  3. Nigel Smith says:

    1. No. There is no geographical restriction on the legislation – one of the issues pointed out by Kennedy Graham for one.

    2. I’m pretty sure even you realise that New Zealand wouldn’t exist fine with just those 5 pieces of legislation. As I said, it doesn’t cover a large list of Acts of significant importance to the running of the country; I’m not sure why they might need to amend something like the Crimes Act or the Human Rights Act. Also, nothing is stopping them from passing a law inconsistent with our Bill of Rights Act. s4 of the BORA would make it give way in face of other legislation. But yes, elections are protected (national, not local).

    3. Of course. I accepted that there were political repercussions for any action taken, but its imperative to ensure that there are legal repercussions also, as I guess, a safety if political repercussions fail.

    4. The Ministers wouldn’t act without consent of Cabinet. The concern wouldn’t be individual ministers misusing the Act but the government as a whole.

    5. Sure, but that’s an entirely new kettle of fish – most people believe that refusal of assent is no longer an option open to the GG and if he tried he would lose office.

    In regards to your other comments, I would hardly call it hyperbolic – I thought I did a reasonable job of pointing the few parts of the article which could be called exaggeration.

    And in terms of alternatives, well actually yes all the academics have pointed out the alternatives. Quite simply, rather than give sweeping powers to make changes where needed, simply provide the change when each has been identified. The speed with which the Act travelled through the house goes to show that there would be no difficulty in passing smaller, more narrow, and therefore less constitutionally infringing, pieces of legislation.

  4. Annonymous says:

    Very well written article. My end of trimester exam is based on the responses towards Canterbury earthquake and this article helps a lot in many ways.

    Nigel you rock!!

  5. Malekah says:

    thank you so much. this is going to help me big time in my exam tomorrow morning.!

    Now.. just got to memorize it.haha

    you’re a life saver Nigel! =)

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