14 September 2010

Canterbury Earthquake Response and Recovery Bill: Constitutionally Outrageous

It may not be politic to say this, but the Canterbury Earthquake Response and Recovery Bill is a constitutional outrage. A quick read show that it grants extreme Executive power – unbridled and effectively unchecked – in a way that has the potential to undermine our very democratic foundations.

The Bill contains a massive Henry VIII's clause, allowing the Minister to re-write any legislation that is "reasonably necessary or expedient for the purpose of the Act". The power to direct the Governor-General to issue an Order-in-Council to "grant an exemption from, or modify, or extend any provision of any enactment" (including 22 specifically listed enactments - but thankfully not the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, or the New Zealand Bill of Rights Act 1990). That's incredible power!

There are no substantive restrictions on the power to grant an Order-in-Council, only the procedural requirement to take in account the Act's purpose and consultation with an appointed recovery commission (cl 6(2)).

And there is a privative clause which prevents the courts from reviewing the legality of any recommendation made to issue an Order-in-Council (cl 6(3)). So even if the Order-in-Council is not done for the purpose of the Act, it can't be challenged in the court. Or the legislation says it can't – I suspect the courts would see it as part of their constitutional job to review the Orders anyway to make sure they are issued for proper purposes. The only "check" is the standard ex-post-facto process set out in the Regulations (Disallowance) Act 1989 (cl 8) – hardly an adequate check on such an extreme power.

Not only can Orders-in-Council re-write legislation, they can also substitute "a discretionary power for the provision" (cl 6(5)(b)(ii)), ie, more ad hoc power for Ministers and officials.

No-one quibbles with the fact that there might be some legislative provisions that need to be relaxed or amended to allow for the speedy and orderly recovery and rebuilding in Canterbury. But this Bill is extreme. It confers powers that are more extreme than found in the Civil Defence legislation applicable to the original emergency itself.

There are other ways for the response to be managed and the rebuilding expedited in a way that is more consistent with basic democratic principles and the Rule of Law.  (As an aside, I expect the NZLS Rule of Law committee to be concerned about this.)

Our experience in the past (with such matters as terrorism response legislation) has demonstrated that we must respect our important constitutional and democratic principles when addressing matters of urgency and emergency. Any government and legislative response must be proportionate to the mischief. This is not.


Jono said...


Agree that the Bill is constitutionally outrageous.

A couple of additional points I have noticed on a quick reading:

(a) The Bill appears to envisage the its own provisions (which three exceptions) can be modified by order in council (cl 6(6)(d)). Theoretically this allows for cl 8 relating to the applicability of the Regulations (Disallowance) Act 1989 to be re-written.

(b) Clause 20 provides that the Act does not create a right to compensation.

Overall I think what is most disappointing is that the thinking behind the Bill appears to be that due process and the rule of law are least important in a time of emergency.

I also note that in the committee of the whole stage there is no clause by clause reading. Leave was granted for one general debate.


Phil Lyth said...

Dean, I am advised that just before the dinner break (6pm), John Carter said the Government 'was considering' various proposed amendments and some might be adopted. Here's hoping.

Jono, you obviously think about entrenchment carefully.

Anonymous said...

Your post might not have been 'politic', but it certainly was 'critic and conscience', and for that you are to be congratulated.

Sam said...

The Governor General could always use his reserve powers to refuse to make an order-in-council surely?

The courts could pick up where Lord Cooke left off: "[s]ome common law rights presumably lie so deep, not even Parliament could override them" - Taylor v New Zealand Poultry Board

Anonymous said...

Yes, it appears contray to the rule of law, but to democracy?

However, repugnant the Canterbury Earthquake Response and Recovery Act 2010 is, it still represents the intention of Parliament.

Members of Parliament are the peoples so-called democractically elected representatives.

The great irony is that this legislation, even though repugnant, entirely legitimate.


Anonymous said...

Correction:attempt No 2

Yes, it appears contrary to the rule of law, but to democracy?

However, repugnant the Canterbury Earthquake Response and Recovery Act 2010 is, it still represents the intention of Parliament.

Members of Parliament are the peoples (so-called) democractically elected representatives.

The great irony is that this legislation, even though repugnant, is entirely legitimate.

Parliament New Zealand's supreme lae-making authority has chosen to enact this law.

Anonymous said...

No 3 attempt, give up

"Parliament New Zealand's supreme law-making authority has chosen to enact this law."

Anonymous said...

‘As with most democratic governments, but even more so in New Zealand, the Executive wields extraordinary power, including the power to take away fundamental rights and freedoms, which are protected only by goodwill and trust, and not by the courts. This enormous and almost unchecked power of government, alone andthrough Parliament, has been likened by a former Prime Minister to that of the Stuart Kings before the Glorious Revolution of 1668. It was characterized by other commentators as an almost perfect example of a strict majoritarian model, an “elective dictatorship”, and an “overpowerful parliament dominated by what is a resultand overpowerful executive”. This is clearly a very “thin” and vulnerable democracy’.

(G.W.G. Leane H.R.Q. 26 (2004) 152, at p.167 :cf. J.S. Mill, On Liberty, 1859 at pp. 62 & 63; James Madison et al, The Federalist Papers (1788); Alexis de Tocqueville Democracy in America (1835).

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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