12 April 2011

CERA Mark II: My Submission

The new Canterbury Earthquake Recovery Bill passed its first reading late this afternoon and has been referred to the Select Committee for less than 48 hours for consideration:


I understand key stakeholders have been invited to address the Committee: tonight in Wellington and Christchurch tomorrow.  As one of the scholars who actively expressed concerns about CERRA Mark I and  one who has already publicly commented on the proposals for CERA Mark II, I have been dutifully awaiting an invitation to address the Committee - I fear I have not yet received one.  However, below is the submission I would have made to the Committee.

[UPDATE 13/4/2011: Unbeknown to me, I understand a helpful member of the public printed my blog post/submission below and at the conclusion of hearings late last night presented it to the Committee, who received it.  I have been advised, though, that the Committee is not generally accepting other unsolicited submissions on the Bill.]


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12 April 2011

Local Government and Environment Select Committee

Ngā mihi

Canterbury Earthquake Recovery Bill 2011

I am grateful for the opportunity to make a submission on this Bill. The short time-frame for public submissions is preferable to the procedure adopted for the previous Act where it was passed through all readings in one day (although not ideal).  The limited time available to review the Bill means my submissions are general in nature and somewhat abridged.

My submission concentrates on the following concerns about the Bill:
general approach: bottom-up model preferable to proposed top-down model
purpose provision is too wide
unusual position of community forum
development and amendment of recovery strategy and plans
Executive and coercive powers effectively unconstrained
appeal rights too narrow
deliberative cost-benefit calculus should not be excluded
Orders-in-Council regime unnecessary and still not subject to adequate safeguards.

General approach: bottom-up model preferable to proposed top-down model
I acknowledge the gravity of the task facing Christchurch and other districts.  The recovery and rebuilding project is massive one, one that is probably beyond the capacity of present local authorities and other agencies.  I accept therefore that central government involvement is essential. However, I question the top-down, rather than bottom-up, model that has been adopted.  

All the important powers and responsibilities are located at Ministerial level.  The Minister has the ultimate responsibility for setting the vision for recovery and rebuilding, and has numerous coercive powers which may be used to trump decisions and actions of local authorities and other agencies.  While there is some reference to "collaboration", "coordination", and "cooperation" etc, the legislative scheme is drawn in command-and-control terms.  The legislative scheme does not build in the usual elements of local democracy and community participation that is traditionally seen and expected in legislation dealing with town planning and management of local resources.   

While the location of powers at a Ministerial level does not offend constitutional principle, it does raise questions about the legitimacy of the recovery and rebuilding plans and actions.  The predominant thinking nowadays is that town planning or resource management decisions ought to be made at the local level, in a way that allows the affected communities to have their say in their development.  It recognises that they will be best-placed to assess the propriety of the plans and generally enhances the legitimacy of the measures adopted.  It is also consistent with the principle of subsidiarity, which says that decisions ought to be made at the lowest possible level within the governmental framework.

The rebuilding of Christchurch is something that the locals will need to live with for a long-time.  The recovery and rebuilding plans are not merely about stabilisation following an emergency, but also the look-and-feel of their city and district for next 50 years.  It follows that the recovery and rebuilding plans and actions ought to be community-centred and mandate real and meaningful public participation.  The present legislation fails to provide for this.

My preferred option would be to augment the existing local government structures and processes.  While local government in the region obviously needs practical assistance to operationalise the rebuilding and recovery, they are still about to take the lead and responsibility for the vision for their city and region.  They are experienced in doing so, they are closer to their community, and they are better placed to capture the needs and aspirations of the local people.  And they are more able to be held to account by local people for the decisions and choices they make.  

In practical terms, a community-centred model would charge the local authorities themselves with developing the overarching recovery strategy – without the need for ministerial sign-off. CERA would still have a role in assisting the local authorities.  It could operate as a portal through which governmental assistance could be provided to support these efforts, through cooption of staff to assist the local authorities (importantly, to work under their auspices) and to coordinate central governmental assistance necessary to convert that vision into action.

As I anticipate such reconfiguration is unlikely to be supported by the government, my comments that follow focus of matters of detail within the regime that could be improved, to provide better mechanisms for the people and communities to have input into the decisions that affect them and to better protect against the misuse of the vast power conferred on Ministers.  

Purpose provision is too wide
The present purpose provision is too wide.  This is of particular concern because the purpose  infiltrates most of the other executive and coercive powers elsewhere in the Bill and sets the parameters on the exercise of such powers.  The purpose clause and supporting provision does not operate to constrain governmental action in any meaningful way because they are framed so widely (eg, cl 3: "respond to, and recover from"; "to facilitate ... rebuilding and recovery of affected communities"; "restore social, economic, cultural and environmental wellbeing"; cl 10 "in accordance with the purposes" and "reasonably considers it necessary").  It is a blank cheque for any types of action the government decides is desirable.  This is an anathema to rule of law.  Almost all governmental action could be justified in the name of restoring community wellbeing.

Further, the wide purpose clause effectively negates any checks-and-balances that might be provided through judicial review.  In this context, the sole task for the courts would be to review whether the proposed executive action falls within the scope of the powers conferred by the legislation; the courts are otherwise unlikely to second-guess the judgements made by the executive in judicial review proceedings.  However, as the broadly framed purpose provision controls the scope of those limits, the courts' supervision will effectively be nugatory – only the most extreme examples of abuse will step outside the scope of the powers conferred by legislation. 

My preferred approach which be to include a narrower purpose provision or to separately state (narrower) pre-conditions for the exercise of the executive and coercive powers.  The statutory pre-conditions might build in the principle of proportionality, might better express the residual or reserve nature of the power, or might otherwise express the need for the powers to be exercise in a tailored or constrained fashion.

Unusual position of community forum
The new, Ministerial-appointed community forum is unusual.  While I am in principle supportive of community engagement, this forum risks undermining the standing forum for the expression of community views: local authorities.  Local authorities have a representative mandate and are ultimately accountable to their communities, in ways that the Ministerial-appointed community forum is not.  If such a forum is still seen to be desirable, the forum ought to at least be selected by the local authorities, not the Minister.  

Development and amendment recovery strategy and recovery plans 
The Bill provides for notice-and-comment in relation to the development of the recovery strategy and the recovery plan for the CBD (but not other plans).  That is desirable and could be expanded.  As noted above, public participation in the development of the strategy and plans is critical to their legitimacy.

In addition, the ministerial discretion about the process for the development of other recovery plans in cl 20 should have particular regard to the desirable of the involvement of the community in the development of such plans, as well as the other factors. This could be added as a mandatory relevant consideration in subclause (2).

Further, ministerial powers to approve or change recovery plans should be constrained (cls 21 and 22). Ministerial interference with plans developed through public participation processes should not be unfettered and should be reserved for situation when the plans are directly inconsistent with the recovery strategy.  

Public consultation should be mandated for amendments to the recovery strategy (cl 14) in the same way it is for its original development.

Executive and coercive powers effectively unconstrained
As mentioned earlier, many of the far-reaching executive and coercive powers are effectively unconstrained.  Such aggregation of such powers, without real constraints or safeguards, is a concern.  While I suspect some of these powers are intended to operate as residual or reserve powers, the legislative regime does not express them in such a limited fashion.

Some example include:
power to suspend of plans and resource consents in cl 27;
approval of specified local government contracts in cl 28;
demolition and construction of works in cl 38;
power to direct in cl 48;
power to require performance in cl 49;
power to call-in functions in cl 50.

As a general principle, such powers should only be exercised where actions is mandated by the recovery strategy  (ie, only "where reasonably necessary to give effect to the recovery strategy").  This would ensure there is some community-based mandate for their operation – especially where they involve the suspension of policies adopted through democratic processes or the suspension of vested rights.

Secondly, the legislation should specify that those powers intended to be residual should only be exercised where the agency has failed to give effect to the strategy or is proposing to act contrary to the strategy.

Finally, for all such powers, it would be desirable to include a legislative requirement that such powers be exercised in a proportionate manner.  This would provide some balance on their exercise, and ensure they are only exercised in appropriate circumstances.  

Appeal rights too narrow
I acknowledge it is difficult to balance the need, on the one hand, for expedited action and, on the other hand, the rights of affected citizens to appeal decisions.  It is important therefore to ensure citizens have meaningful mechanisms to have their say on matters which affect them, either before the fact through public participation or after the fact through objection and appeal rights (pressing emergencies aside).

However, the present list of preserved appeals appears too narrow.  For example, the Bill excludes appeals from the decision of the Minister to cancel existing resource consents or existing right uses under cl 27(2). This is an operational decision directly affecting people, which will not have been subject to prior consultation.  Appeal rights should be preserved for such decisions.

Deliberative cost-benefit calculus should not be excluded
An Order-in-Council under the previous Recovery and Response Act and a clause in this Bill seek to remove the existing requirements on the part of local authorities to assess the cost and benefits of their actions and proposed planning documents (cl 4 of the Canterbury Earthquake (Local Government Act 2002) Order 2010, exempting compliance with s 77 of the Local Government Act 2002; cl 24(4) of this Bill, exempting compliance with s 32 of the Resource Management Act 1991).  It is a concern that these basic principles are being removed or exempted.  The cost-benefit calculus is the essence of proper administrative decision-making and should be encouraged – not dispensed with – in this phase of recovery and rebuilding.

Orders-in-Council regime unnecessary and still not subject to adequate safeguards
This Bill continues the previous regime for the issue of Orders-in-Council amending primary legislation, with some changes.  The previous concerns about this regime are well-known.  Such wide Henry VIII clauses are contrary to the democratic imperative.  Particular concern was expressed about the lack of, or weaknesses in, checks-and-balances on the exercise of such powers.

Regrettably, the new regime does not adequately respond to the concerns previously raised.   The Ministerial fiat to change laws is retained.  The only new feature is a new Review Panel to scrutinise the recommended Orders-in-Council within 3 working days.  However, the Minister need only have regard to their recommendations and can ultimately decline to follow them if he or she wishes.  In any event, steps prior to recommendation to the Governor-General continue to be protected by a privative clause which seeks to immunise such steps from review by the courts.

Once again, the Bill gives Orders-in-Council force of law, which tends to operate as a weak privative clause.  While it is unlikely this would immunise such orders from review by the courts, the nature of any review continues to be diluted by the widely-framed purpose clause.  

I remain concerned about the lack of the checks-and-balances, especially as the horizon for Orders-in-Council has been extended to 5 years.  While expediting recovery and rebuilding is important, it is doubtful whether there remains the same urgency for law changes that justifies the powers being exercised without reference to Parliament.  There is not the same emergency situation – the Bill is largely directed at rebuilding.  There is not the same degree of the unknown.  The experiences following the last earthquake mean there is better understanding of the laws that need to be relaxed or amended.   

My preferred approach would be, as a minimum, for any Orders-in-Council to be subject to the affirmative resolution procedure.  That would mean any Orders would not take effect until approved by a resolution of the House of Representatives (see for example the scheduling of drugs under the Misuse of Drugs Act).  This allows the fast-tracking of changes to legislation but ensure Ministers justify such changes to Parliament and obtain the consent of Parliament to these changes.  It would be prudent also for the Regulations Review Committee to scrutinise those Orders briefly prior to being approved.   The privative clauses ought to be removed.  And the (expanded) purpose provision – which casts a large immunising cloak over the Orders – should be more tailored and constrained.

One other subsidiary concern about the Orders. The protected legislation in cl 70(6)(c) does not the Local Electoral Act.  As this legislation provides for the election of democratic local government in Canterbury and Christchurch, this should be protected from amendment by Orders-in-Council.  (As noted above, I would also protect from amendment the deliberative principles governing local authority decision-making in ss 76 to 81 of the Local Government Act 2002.)

Regards

Dean Knight
Senior Lecturer, Faculty of Law
Associate, New Zealand Centre for Public Law




2 comments:

Robin Johnson's Economics Web Page said...

Well said, Dean.

Tony Milne said...

Excellent submission. Thanks Dean.
Tony

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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