Sir Geoffrey Palmer writes that there is a democratic deficit in Canterbury.
New Zealand is one of the world's oldest democracies. But sometimes we do not behave in a democratic manner.
We have an odd constitution. It lacks the checks and balances found in many other countries to which we like to compare ourselves.
Essentially, New Zealand has a political constitution. It evolves and mutates in accordance with political developments.
The power of the New Zealand Parliament to make laws knows no limits. They can pass any law they like, whenever they like.
Until 1876 there was a legislature in Christchurch with power to make law - the Canterbury Provincial Council. After the Provinces were abolished, public power in New Zealand became highly centralised in Wellington. When the Upper House was abolished in 1950, the concentration increased.
Local government in New Zealand is one of the main casualties of this reality. Central governments keep local governments under strict legal limits - they seem to want to keep them as political dwarves.
The great exception to this has been the new super-city of Auckland, and the special powers that have been created by legislation for that. Auckland City is becoming a rival of the central government itself.
Canterbury, and particularly Christchurch, has suffered grievously from multiple earthquakes. The Canterbury Earthquake Recovery Act 2011 was passed by Parliament to ensure urgent action could be taken. The prime purpose of the act was "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".
The act takes great powers and centralises them in the Minister of Earthquake Recovery, his chief executive and the department, the Canterbury Earthquake Recovery Authority. Vast swathes of statute law, democratic protections and due-process requirements are swept away.
In October 2011 the minister took two decisions that were challenged in the courts. The first was to amend the 1998 Canterbury Regional Policy Statement by adding a new chapter to set in place an airport noise contour around Christchurch International Airport. The second was to insert a new chapter that provided for urban development of designated greenfield areas over the next 35 to 40 years.
Justice Chisholm in the High Court held the minister's decisions were unlawful. On somewhat different grounds, The Court of Appeal, in a unanimous judgment delivered yesterday by Justice White, dismissed the appeal.
It was held that the minister's decisions must be within the purposes of the act and the exercise of the power "necessary", rather than merely desirable or expedient. Necessity needed to be demonstrated "reasonably" on an objective basis.
Broad as the powers granted to the minister by the Canterbury Earthquake Recovery Act were, the minister exceeded them and got it wrong.
The case is a graphic demonstration of how rapid decisions made under extraordinary legislation can go wrong. The rule of law will have its revenge.
There can be little doubt that some of these extraordinary powers were necessary, but the question is how many and for how long? Emergency powers, like other government powers, are capable of being abused and remedies against that abuse are greatly diluted by the legislation.
The primary argument to justify the extremity of the powers taken can be found in the sunset provision in the act. The act expires on the close of the day that is five years after the date of its commencement, which was April 19, 2011. So democracy and the rule of law as enacted by Parliament in ordinary statutes will then resume in 2016, unless there is an amendment extending the life of the Recovery Act.
In another Canterbury example of extraordinary legislation, we have seen just such an extension. The Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 replaced the elected representatives of Environment Canterbury, the Regional Council, with unelected commissioners appointed by the Government. The council is entrusted with important environmental and transport responsibilities, with a crucial role over water.
The intervention was because the Government believed, and there was substantial evidence to support this view, that the Regional Council had performed poorly. The Government appeared to have a view about how the water should be allocated, to whom, and how that would contribute to economic growth. It wanted an irrigation-led boom for farmers.
Despite promises enshrined in legislation that an election for the Regional Council would be held in 2013, the Government has changed its mind. Against the advice of the commissioners themselves and other officials, a bill has been introduced by the Government to extend the exceptional powers of the appointed commissioners until an election that will be held in 2016.
All this leaves an unpleasant and toxic taste in the constitutional mouth. Either we believe in local democracy or we do not. Democratic government is frequently troublesome, but the remedies lie in the hands of the voters. Democracy should mean we govern ourselves.
Governments in New Zealand frequently think they know best, and hardly ever is their confidence justified. Absolute power in the end brings absolute disaster.
These developments remind me of the excesses of the now repealed National Development Act 1979, the legal leitmotif of the expensive and futile "Think Big" policies of that day. Do not worry about accountability, do not worry about public participation, just get on and do it because the government knows best.
Bad governance will always flow from legislation of that character. People do not like being dictated to.
Democracy hangs by a slender thread in many parts of the world. It is much more fragile than often believed. Once governments start removing elements of democratic control, there is a slope down which democracy can rapidly slide. Constitutional hijacking is not to be encouraged.
Local government needs a protected place in New Zealand's constitutional arrangements, so that it cannot be made the mere plaything of central government ministers.
A famous American, Robert Maynard Hutchins, said in 1954: "The death of democracy is not likely to be an assassination from ambush. It will be a slow extinction from apathy, indifference, and undernourishment."
That seems to be the place over which Canterbury hovers at present.
The Rt Hon Sir Geoffrey Palmer, QC, is a former prime minister of New Zealand. Among other appointments, he has been a chairman of the New Zealand Law Commission. He is a distinguished fellow of the New Zealand Institute of Public Law and a member of the Law Faculty at Victoria University of Wellington.
- © Fairfax NZ News
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