Crucial safeguards remain with act

CENTRE OF POWER: The Beehive.
CENTRE OF POWER: The Beehive.

HENRY HOLDERNESS responds to the 27 legal academics who have raised concerns about what they called the "dangerous and misguided" emergency legislation aimed at helping Canterbury recover from the earthquake.

On Wednesday last week, The Press published a letter signed by 27 legal academics from various universities in New Zealand, Britain and the United States. The purpose of the letter was to criticise Parliament for passing the Canterbury Earthquake Response and Recovery Act 2010.

The 27 academics oppose the act because, they say, it abandons "established constitutional values and principles in order to remove any inconvenient legal roadblock" to Canterbury's recovery from the earthquake.

They argue that the act concentrates too much law- making power in ministers of the Crown and that this is "dangerous and misguided."

They are opposed to the wholesale delegation of Parliament's law-making power to individual ministers, who now have the ability to suspend or modify other acts of Parliament without any "limits" or "restrictions".

In particular, the 27 academics lambast the act because it prevents "the courts from examining the reasons a minister has for thinking an order in council is needed, as well as the process followed in reaching that decision."

I agree that delegating the full ambit of Parliament's law- making power to individual ministers is undesirable. Even men and women with the rosiest of intentions can be corrupted if they come to possess unbridled power. Indeed it is distinctly arguable that Parliament itself should not have the illimitable law-making powers that it currently appears to wield in New Zealand.

Despite this, however, it is not completely accurate for the 27 academics to state that there are no checks and balances on the law-making power conferred by the earthquake act.

Let us take a closer look at it. Section 6(1) of the act provides that "the governor- general may from time to time, by Order in Council made on the recommendation of the relevant Minister, make any provision reasonably necessary for the purpose of this Act".

This is the process by which individual ministers, instead of Parliament as a whole, can change the law and this is what the 27 academics find so dangerous.

Significantly, however, it is the governor-general, not a minister or ministers of the Crown, who has the power to make orders in council suspending, modifying or extending other laws. This, I suggest, represents a "legal check" of the kind the 27 academics argue does not exist under the act.

Of course, anyone who has studied New Zealand's system of government will know that it is a constitutional convention that the governor-general never questions the advice he or she is given by Parliament, and that accordingly he or she gives royal assent to all bills passed by the House of Representatives and makes orders in council when advised to do so.

The governor-general used to enjoy a prerogative to reject ministerial advice to make an order in council, but this now no longer exists. Nevertheless, although it would be highly unusual and contrary to convention, it is still possible for the governor- general simply to refuse to make an order in council on advice tendered by a minister.

Constitutional conventions do not have the force of law and therefore the governor- general cannot be compelled to abide by them.

Our current governor- general is a former district court judge and I think he would be very reluctant to make an order in council whose effect was harsh, oppressive or in violation of basic human rights, even if it helped Canterbury recover from the earthquake. The governor-general is a potential limit on ministerial power under the act.

Another point of contention for the 27 academics is that, under section 6(3), "the recommendation of the relevant Minister may not be challenged, reviewed, quashed, or called into question in any court".

This provision appears to prevent the courts from interfering with the process by which ministers instruct the governor-general to make orders in council under the act. The academics object to this because it purports to remove a potential check on ministerial law-making power.

Section 6(3) is what lawyers would call an "ouster" clause. It ousts the jurisdiction of the courts to supervise the activities of the executive branch of government. The executive branch means government ministers acting outside Parliament, and bureaucrats empowered by law to make official decisions. When a minister advises the governor-general to make an order in council, the minister is acting as a member of the executive - ie, outside Parliament. Under our unwritten constitution, the High Court has an inherent jurisdiction to review the exercise of official powers by the executive to ensure those powers are used lawfully. This is commonly called judicial review. It is an important jurisdiction because it helps to maintain our basic constitutional ideal - the rule of law.

Every so often, however, Parliament passes a statute containing an ouster clause in an attempt to immunise a member (or members) of the executive from the threat of judicial scrutiny.

The High Court, as you might expect, takes a rather dim view of ouster clauses. They upset the delicate balance of power that exists between the executive and the judiciary, they attempt to put members of the executive above the law in relation to certain decisions, and they prevent the courts from deciding questions of law, which is their essential function as an arm of government.

This is why the academics object so strongly to section 6(3). In short, ouster clauses like section 6(3) are constitutionally repugnant.

Nevertheless, the High Court will usually obey ouster clauses and refuse (albeit reluctantly) to conduct judicial review when Parliament tells it not to. But I say "usually" with good reason. Where an ouster clause purports to prevent judicial review of a particularly far-reaching exercise of official power, the court is still able to avoid the effect of the ouster clause and give itself jurisdiction to intervene.

It would be more willing to do this if important human rights were at stake. The court would avoid the offending ouster clause by applying some "creative" interpretation to its wording.

In section 6(3), for example, the word "recommendation" is open to interpretation. The court could hold that "recommendation" can only mean advice which is tendered to the governor- general in proper recognition of human rights, so that if a minister advises the governor-general to make an order in council whose effect is to violate basic rights, then the minister's advice does not qualify as a "recommendation" at all, and can therefore be challenged, reviewed or quashed by the court.

That may sound far- fetched, but it is an approach which both the House of Lords (Britain's top court) and the New Zealand Court of Appeal have contemplated.

Moreover, the beauty of judicial review in New Zealand is that when someone applies for it, the court can issue interim orders requiring the executive to refrain from taking a proposed course of action until after a full hearing of the case is conducted. In many cases, obtaining an interim order will effectively win the day for the person applying for judicial review.

So while I have broad sympathy for the views of the 27 academics, I also think there are greater levels of protection against unlawful ministerial action under the earthquake legislation than their letter suggests.

Those in Canterbury who find themselves potentially under threat as a result of the act can still look to the High Court, and even possibly the governor-general, for a remedy.

* Henry Holderness is a solicitor at Duncan Cotterill Lawyers. The views expressed in this article are his own.

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