4 October 2010

ChchEQ: Vast power - but for whom?

A small point which needs clarifying. 

Much has been made about the power that the Canterbury Earthquake Response and Recovery Act 2010 gives to Gerry Brownlee as Minister for Canterbury Earthquake Recovery to suspend, exempt or extend existing laws under the powerful Henry VIII clause. 

But a careful reading of the Act makes it clear that the power is in fact conferred on "any relevant minister"; that is, "the Minister who is, with the authority of the Prime Minister, for the time being responsible for the administration of the enactment [being amended]" (ss 4 and 6).  This could be any of the present Ministers, not just Gerry Brownlee.

So the Orders presently promulgated must have been recommended by the following Ministers:
  • Chris Finlayson (Canterbury Earthquake (Historic Places Act) Order 2010)
  • Nick Smith (Canterbury Earthquake (Resource Management Act) Order 2010)
  • Stephen Joyce (Canterbury Earthquake (Transport Legislation) Order 2010)
  • Rodney Hide (Canterbury Earthquake (Local Government Act 2002) Order 2010)
  • John Carter (Canterbury Earthquake (Civil Defence Emergency Management Act) Order 2010)
  • Maurice Williamson (Canterbury Earthquake (Building Act) Order 2010)

[And also:

  • Paula Bennett (Canterbury Earthquake (Social Security Act) Order 2010)
  • Rodney Hide (Canterbury Earthquake (Local Government Official Information and Meetings Act) Order 2010).]

Rather confusingly, the Act also refers to 3 responsible Ministers: the Minister for the Environment; the Minister of Finance; and the Minister for Canterbury Earthquake Recovery.  These are the ministers responsible for, amongst other things, the appointments and other administration of the Act.

One point I'm not entirely certain about is the collective process for promulgation of the Orders.  I have heard conflicting explanations of whether or not all the Orders are subject to Cabinet sign-off or not.  The usual process in the Cabinet Manual is that any such orders made in Council are signed off by Cabinet as a whole.  But I recall the Minister originally saying that proposed Orders would circumvent Cabinet itself and only be considered by the special Canterbury Earthquake Cabinet Committee.  I would be grateful if anyone could confirm the present position.

6 comments:

philip said...

Dean, you've missed:

* Canterbury Earthquake (Social Security Act) Order 2010 (SR 2010/331)
and the new one today:
* Canterbury Earthquake (Local Government Official Information and Meetings Act) Order 2010 (SR 2010/350)

philip said...

Reading a few Acts, and the current Legislation Bill, the form of words used is commonly "The Governor-General may, by Order in Council, . . ."

But sometimes, eg cl 15 of the Legislation Bill, the form of words is "The Governor-General may, by Order in Council, on the recommendation of the Attorney-General, . . "

I would be interested to know the effect of the difference

(I'm Phil Lyth)

Dean Knight said...

Philip

Thanks. And whoops. I had based it on the PCO list, which was not yet updated.

Now corrected.

Anonymous said...

well done for picking up this basic point of statutory interpretation two weeks after the fact. are you now going to recant on all your stuff about Gerry as a dictator?

Dean Knight said...

@Anon:

Actually, you might see that I have not so described Gerry in that way on this blog. The focus has been on the powers that are being exercised.

I know the colloquial name for the orders are "Gerry" orders and attribution of the powers to Brownlee as Eq Min has provided some focus for the debate about their propriety. The point I'm making, though, is their reach is much broader.

Robin Johnson's Economics Web Page said...

Dean,
FYI, MED have confirmed in writing that there was no regulatory impact statement for Canterbury Earthquake Response and Recovery Act 2010. Here is their letter.
https://docs.google.com/fileview?id=0B8LhMBA3NXL4MTdhYTk1ZjAtZGVlYy00ZTkzLTkyMDYtMzhlNTJhYjg0NTFk&hl=en_GB
I naively thought that regulatory impact statements were mandatory for all proposals submitted to Cabinet that lead to government bills and statutory regulations.
http://www.med.govt.nz/templates/MultipageDocumentPage____608.aspx#P27_4052

A case of "Do as I say, not as I do".

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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