14 April 2011

CERA Mark II: Purposes - a starter for 10?

One of the most egregious features of the new CERA legislation is the wildly expansive purpose clause and the pretense - perpetuated by many - that the requirement to act consistently with the legislative purpose operates as a constraint or check-and-balance on executive action.  It does not - it constrains executive action as much as a sieve holds water.

The important purposes are set out below:
"(a) to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes:
(f) to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property:
(g) to restore the social, economic, cultural, and environmental well-being of greater Christchurch communities:
I have previously noted that these purposes would seem to capture almost any conceivable government action.

So, a "starter for 10" for Thursday afternoon, while the government continues to debate the Bill under urgency:

Q: What action, plausible or fanciful, would legitimately fall within the ambit of this purpose clause?

And, as a supplementary question, what, if any, action (other than the truly hyperbolic or fanciful) might not be capable of being justified under this purpose clause?

Some suggestions of legitimate government, some plausible and some fanciful, action to start you off:

- Suspending the obligation of Cantabrians to pay GST (economic wellbeing).
- Authorising the establishment of a nuclear power plant to supply power to Chch (economic and social wellbeing).
- Prohibiting open fires and chimneys and mandating clean air initiatives (environmental wellbeing).
- Abolishing the Christchurch City Council or amalgamating it with surrounding local authorities (all the wellbeings and coordination of recovery).
- Demolishing houses surrounding Lancaster Park and designating the area for the construction of hotels and bars (social, cultural and economic wellbeing).
- Establishing a high-tech business park in Hagely Park (economic wellbeing).

1 comment:

Robin Johnson's Economics Web Page said...

How about?
* mandating compulsory coal fires and chimneys and prohibiting clean air initiatives (social and economic wellbeing).
* compulsory evacuation to the countryside (social and economic wellbeing)
* reclassifying Cantabrians as full-rights people, candidates and depositees (social and economic wellbeing)

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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