14 September 2010

Canterbury Earthquake Response and Recovery Bill: some examples

Example 1:
The Minister is worried about disaster tourism.  An Order-in-Council is promulgated banning non-residents from entering the affected districts without permission from recovery commission. 

Example 2:
The Minister decides that the upcoming local election is a distraction to the recovery process.  The Local Electoral Act 2001 is suspended in Christchurch and surrounding districts, deferring local elections until June 2011, allowing Bob Parker to remain as Mayor until then.

Example 3:
The Minister decides that the residents of Christchurch deserves a break due to the stress they've been under.  An Order-in-Council is passed exempting them from paying income tax.  The income tax for non-Chch residents is increased in a corresponding fashion to ensure that the govt's books still balance.

Example 4:
The Minister decides more utility vehicles for the recovery process.  An Order-in-Council passed to appropriate any such vehicle in the North Island.  Farmers are outraged because of the effect on their livelihood and because they are sure that the Minister has misstated the need for utility vehicles.  Clause 6(3) prevents any challenge to recommendation to promulgate an Order-in-Council on the basis that the appropriation of such vehicles is not reasonably necessary for the recovery.  Clause 19 means no compensation is payable for the appropriation.  The Regs Review Committee eventually considers the matter, but 3 months after the vehicles are seized and after farmers have suffered significant loss.

Feel free to add other examples.


Graeme Edgeler said...

The minister decides that the newly-elected Mayor of Christchurch is being unco-operative on the recovery commission, the minister suspends the operation of the provisions of the Crimes Act dealing with murder and has him killed.

Dean Knight said...

Example 5:

From Nick Smith himself in the 3rd Reading.

The Minister is worried about the injuries that arose from falling chimneys. Through an Order-in-Council he amends the RMA to bring forward proposals to require conversion to clear air and the abolition of chimneys.

Dean Knight said...

The Minister considers there is a need for routine and normality for youth during the recovery effort. He is worried about the effect of the upcoming PPTA strike, and the distraction to parents if they have to supervise kids at home. An Order-in-Council is passed amending the Employment Relations Act preventing teachers within the affected areas from engaging in strike action for the next 18 months.

Henry Clayton said...

One of the purposes of the Act is to enable the relaxation or suspension of provisions in enactments that may divert resources away from the effort to efficiently respond to the damage caused by the Canterbury earthquake.
The Minister thinks that paying benefits to people who could be construction or road workers is diverting resources. The Social Security Act 1964 - expressly listed in the Act - is modified to cut benefits.
Or the New Zealand Super Fund is applied to the recovery by modifying the New Zealand Superannuation and Retirement Income Act 2001.

Graeme Edgeler said...

Of course, your example 1 and 6, and my example clearly involve suspension of sections of the New Zealand Bill of Rights Act and are thus excluded.

Henry Clayton said...

What would you do were you Governor-General? I would resign, forcing the Government to ask the Queen to assent the Bill or appoint a new Governor-General.

Dean Knight said...

@GE: Not sure Graeme. That may depend on a section 5 argument, assuming they escape the privative clauses. And I wonder if they might attract some s 4 protection anyways?

Idiot/Savant said...

Of course, your example 1 and 6, and my example clearly involve suspension of sections of the New Zealand Bill of Rights Act and are thus excluded.

Bzzt! He can't amend the BORA, but he can certainly pass Orders contrary to it - and there's nothing whatsoever the courts can do about it.

Graeme Edgeler said...

Using my example. Sections of the Crimes Act are removed with respect to murder. This means murder is no longer a crime. This does not mean, however, that the Government may murder:

1. it would need a power to murder;
2. its actions in choosing to murder or not to murder would still be governed by NZBORA, in particular, the guarantee of the right to life.

While the decision to suspend the crimes act would be unreviewable on its face, the actual decisions taken under the then extant rules would not be.

Tim said...

Surely there must be something about powers over boy racers in the bill somewhere....

I mean they've tried every other way to get rid of them.

Andrew Geddis said...

Is s.6(3) really a privative clause that purports to exclude the courts from examining the lawfulness of an Order in Council? It tells courts that they can't look at the Minister's advice to issue one - but this advice isn't the same as the Order itself.

I read s.6(3) as excluding review of the Minister's decision making process (i.e. no review on natural justice/relevancy of considerations criteria). But review of the vires of the final Order - is it within the purposes of the Act - is not excluded (even if the courts paid attention to such a measure ... which they won't).

Oh - and Graeme ... why can't the Government give itself the power to murder via an Order in Council? Have a look at s.7(5).

Graeme Edgeler said...

Andrew - and you have a look at cl 7(6): the power to murder would be inconsistent with the right to life, which over-rides s 7(5).

Also, I read 6(3) the same way, but do note that that wasn't how it was being described by the Minister in the bits of the debates I caught on Parliament TV.

Graeme Edgeler said...

Adding to my second paragraph there: the very existence of cl 7(5) implies that Parliament intends that these orders in council may be able to be held as invalid for some reasons.

Dean Knight said...

@Andrew & Graeme: Probably the only way to attack the OiC would be to attack the Minister's recommendation to the GG.

Under s7(1) the OiC itself "has the force of law as if it were enacted as a provision of this Act", probably making s7(5) redundant. There might still be an Anisminic style argument that an OiC made for ulterior purposes is not "made" under s6.

And on the strength of the privative clause, I do note that the High Court last week (to my shock) actually upheld and honoured one...

And, as an aside, where was Attorney's s7 report?!?

Andrew Geddis said...


Surely a court would take just that approach here - saying "validly made OiC's have force of law, but if it is not a validly made OiC then it doesn't"? Can't see the courts completely abdicating oversight responsibility here ... I hope? Further, why would s.6(3) just refer to the Minister's advice, rather than blanket say "the courts cannot review OiC's made under this Act"?

"And, as an aside, where was Attorney's s7 report?!?"

Wouldn't be the first time that this gets tabled AFTER a Bill has been rushed through the House! See http://15lambtonquay.blogspot.com/2009/04/urgency-parliament-and-bill-of-rights.html

Steven Price said...

Isn't that power to "extend" any provision of an enactment coming rather close to permitting positive legislative acts as well as suspensions of statutes?

Matt McKillop said...

Re example 4: Extra bad seeing as the Civil Defence Emergency Management Act 2002 provides that, where requisitioning occurs while an emergency is in force, compensation is payable. Declaring a state of national emergency for the required period would appear as quite a fiction, but it would allow the same action as in your example while retaining compensation and leaving judicial review up to the courts.

Anonymous said...

Brownlee could decide to suspend s4 of the Local Government Act 2002, meaning that Maori would be barred from having a say in local decisions

Henry Clayton said...

Here is a list of Acts that can now be amended by Order in Council:

Abolition of the Death Penalty Act 1989
Anti-Personnel Mines Prohibition Act 1998
Anzac Day Act 1966
Chemical Weapons (Prohibition) Act 1996
Cluster Munitions Prohibition Act 2009
Crimes Act 1961
Crimes of Torture Act 1989
Crown Entities Act 2004
Decimal Currency Act 1964
Disability (United Nations Convention on the Rights of Persons with Disabilities) Act 2008
Domestic Violence Act 1995
Geneva Conventions Act 1958
Government Service Equal Pay Act 1960
Habeas Corpus Act 2001
Human Rights Act 1993
Imperial Laws Application Act 1988
Independent Police Conduct Authority Act 1988
International Crimes and International Criminal Court Act 2000
International War Crimes Tribunals Act 1995
Judicature Act 1908
New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987
Official Information Act 1982
Ombudsmen Act 1975
Policing Act 2008
Privacy Act 1993
Protected Disclosures Act 2000
Public Audit Act 2001
Public Records Act 2005
Regulations (Disallowance) Act 1989
State Sector Act 1988
State-Owned Enterprises Act 1986
Supreme Court Act 2003
Time Act 1974
Treaty of Waitangi Act 1975
United Nations Act 1946
United Nations Convention on the Law of the Sea Act 1996
Waitangi Day Act 1976

Claudia Geiringer said...

[Ed: Part 1]

Hello fellow constitutional egg-heads. Can I say that while I am as “collywobbled” as the rest of you (thanks, AG, for this new addition to the constitutional law lexicon) I don’t think there is any real doubt on reading the legislation that the court retains the right to review the vires of any OIC both in relation to its consistency with the underlying purposes of the Act and in relation to its consistency with the exempt matters in s 6(6). And that of course includes the NZ Bill of Rights.

First, the power to make an OIC is limited to provision “reasonable necessary or expedient for the purpose of this Act” (s 6(1)). So, contrary, Dean, to your original post, that is a substantive rather than a mere procedural restriction. The inclusion of “expedient” is, of course, concerning – as is the width of the Act’s purposes – but that is another matter.

Claudia Geiringer said...

[Ed: Part 2]

Secondly, the recommendations of the relevant Minister to the G-G are themselves deemed to be beyond challenge. Indeed they cannot be “called into question” in any court (s 6(3)). The contrast between that language and the more modest protection given to an OIC itself is marked. According to s 7(1), “while it remains in force, every OIC made under section 6 has the force of law as if it were enacted as a provision of this Act”. That protects an OIC that has been validly made but it would be a stretch to suggest that it protects an OIC that is ultra vires.

According to s 7(5), no OIC may be held invalid because of repugnancy to the provision of another Act. That is a strong indication that consideration of the vires of an OIC is not otherwise beyond the Court. Further, s 7(5) is subject to s 6(6) – the list of exempt matters. It follows that the courts retain jurisdiction to consider the vires of an OIC flowing from inconsistency with one of the exempt matters.

In terms of those exempt matters, s 6(6)(c) provides that an Order in Council may not make or authorise an exemption from or a modification of a requirement or restriction imposed by certain key pieces of constitutional legislation, including the Judicature Amendment Act 1972 (setting out the procedure for judicial review) and the NZ Bill of Rights. The inclusion of the first surely provides a further indication that some degree of judicial oversight is retained.
The argument, as I understand it, that an OIC cannot be reviewed for inconsistency with the NZ Bill of Rights is that the OIC is deemed to be a piece of primary legislation by virtue of s 7(1), and that accordingly, s 4 of the NZ Bill of Rights protects it from interference. On this view, the reference to the NZ Bill of Rights in s 6(6)(c) has the modest effect of protecting the NZ Bill of Rights from direct amendment or perhaps from “implied repeal” but does not protect preclude an “inconsistency” with the NZ Bill of Rights in an OIC. I confess that the distinction between an enforceable “inconsistency” and “implied repeal” is one that eludes me. But in any event, if I am correct – as I think I must be – that s 7(1) only gives force of law to valid OICs, this logic cannot be sustained. On Drew principles, the vires of the OIC can be reviewed for consistency with the NZ Bill of Rights because the authorising power is itself clearly capable of being read to achieve Bill of Rights consistency. If there is any doubt about this, s 6 of the NZ Bill of Rights resolves that doubt.

Finally, the Courts clearly retain a judicial review jurisdiction over the exercise of powers pursuant to an OIC – subject only to the limited restrictions contained in s 7(5).

The interesting question, in terms of judicial supervision, will be how much deference the Courts show to the executive on the question whether a particular OIC is necessary or expedient for the purpose of the Act.

Dean Knight said...

Well, the broadly framed purpose probably makes any jurisdictional challenges moot anyways...

Amongst other things "to ... (a) facilitate the response to the Canterbury earthquake".

Claudia Geiringer said...

Depends surely on what the court does with "reasonably necessary or expedient." There's some ammunition there if the courts want to use it to exert a degree of control. Though, I admit, also ammunition for a deferential approach if a court was so minded.

If I'm right about the Bill of Rights, though, that will also place some meaningful constraints on some of the hypotheticals that have been raised. Eg, association would be relevant to the suspension of strike action; movement to controls on disaster tourism; and so on.

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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