Shunning of due process repugnant, says law academic

A top New Zealand public law academic wants the Government to abolish legislation that sacked Environment Canterbury (ECan) councillors.

Canterbury University law professor Philip Joseph says the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act, which was passed under urgency last month, breaches several principles of law, is "constitutionally repugnant", contains "elements of subterfuge" and is a "constitutional affront".

The act should be repealed and the 14 sacked regional councillors reinstated, he said.

Joseph is the author of the leading text Constitutional and Administrative Law in New Zealand. He is an adviser to several government organisations, including parliamentary select committees, the Law Commission and government departments, and in 2004 was conferred with a Doctor of Laws degree for his work.

The ECan act was pushed through by Environment Minister Nick Smith and Local Government Minister Rodney Hide after a review of ECan by former National deputy prime minister Wyatt Creech.

It replaced elected councillors with seven Government-appointed commissioners, put off ECan council elections until at least 2013, gave commissioners extra powers over water, took away the right for Canterbury communities to appeal to the Environment Court and even allows the Government to temporarily suspend the Resource Management Act.

Joseph told The Press the act was "simply unacceptable".

"What I'm concerned about is the idea of proper process, and this was a departure," he said.

"This didn't go through any select committee consideration, no submissions and no consultation. Why should urgency be taken on a matter such as this?"

Smith said the comments were predictable.

"Lawyers and law professors view the world very much from the view of decisions being able to be repeatedly appealed, without looking at other consequences of not getting on and making decisions."

As a member of the New Zealand Law Society's rule of law committee, Joseph wrote a paper on the ECan act that is being published by the New Zealand Law Journal.

In his report, Joseph said the act failed the legal requirement that the law should be general and forward-looking, not retrospective.

"Such legislation may be vigorously defended politically but it does nothing to promote respect for the law."

Withholding people's rights to be heard on water conservation orders (WCO) denied all the equal protection of the law, was "constitutionally repugnant" and "either gratuitous or disingenuous".

The act was passed in haste, represented a "disproportionate response to the issues that prompted the Government intervention" and contained "subterfuge", Joseph said.

"Its title contains reference to `temporary commissioners', suggesting that the current arrangement is transitional and temporary. But it is not. The arrangement will remain in force for longer than the life of any one Parliament," he said.

"What should be done about the legislation? Repeal it and start again. Reinstate the elected councillors and, if needs must, establish a separate authority to oversee water allocation within the region. Reinstate the right of appeal to the Environment Court for regional decision-making and return to the status quo for WCOs.

"These would be the preferable outcomes, but ... the political decision has been made and will not revisited."

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