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.