Quake law gives unfettered powers

The Public Issues Committee of the Auckland District Law Society considers that the Canterbury Earthquake Response and Recovery Act 2010 is one of the most extreme legislative acts ever seen in New Zealand. It has issued the following article on the legislation.

The Canterbury earthquake was a destructive event unmatched in recent New Zealand history. Christchurch, and the greater Canterbury region, will take several years to fully recover from the devastation wrought by the earthquake.

However, in the wider context of natural disasters worldwide, and even within New Zealand, the impact was not substantial.

Both the Napier earthquake of 1931 and the Wairarapa earthquakes of 1942 caused more destruction, and had a much greater local impact. Modern building methods, transport, communications and logistical resources are much better than they were in the 1930s and 1940s. Logically, therefore, the impact of the 2010 earthquake will be much less than either earlier quake.

Special legislation was passed by Parliament after the 1931 earthquake, providing specific measures to address particular problems caused by the Napier earthquake.

In response to the earthquake, and earlier labour strikes, Parliament also passed the Public Safety Conservation Act in 1932, granting governments more general regulation-making powers which could be used in future emergencies.

The Wairarapa earthquakes of June and August 1942 themselves led to the establishment of what was then the Earthquake and War Damage Commission, in 1944.

The Public Safety Conservation Act 1932 was inspired by the emergency laws passed during World War I.

The 1932 act did not grant general legislation-making powers to the government, but only the power to issue emergency regulations.

The Public Safety Conservation Act as amended required that regulations passed under the act had to be referred to Parliament for subsequent review and endorsement. It also required Parliament to meet within 28 days of the act being invoked.

The legislation was limited in its scope to emergency situations, and regulations were of limited duration, to be passed solely for the purpose of "the conservation of public safety and order and for securing the essentials of life to the community".

Parliament has responded to the 2010 Canterbury earthquake, a much less destructive earthquake with less local impact, with a much wider and more general emergency legislative measure.

The Canterbury Earthquake Response and Recovery Act 2010 grants the present Government much wider and more general powers than the Public Safety Conservation Act 1932.

It permits any legislation to be amended or repealed by the Crown. Section 6 provides that "An order in council may make exceptions from, modify or extend the provisions of any New Zealand statutes".

This is not limited to public safety or securing the essentials of life.

Effectively the Government may repeal or amend any legislation, at will.

Furthermore, this would be done without any parliamentary monitoring and only a very limited right of review.

The Canterbury Earthquake Response and Recovery Act 2010 does not provide for automatic review by Parliament, and goes further to actually prohibit judicial review. This is despite the powers contained in the act extending well beyond making emergency regulations, to amending "any New Zealand statute".

Quite uniquely, the act limits judicial review, and potential attempts to question the appropriateness of any ministerial action under section 6. The powers granted to ministers under the section effectively amount to an unfettered right to legislate by decree.

The powers under the act permit the Crown to arbitrarily make exceptions from compliance with existing legislation.

Possible examples could include exempting law enforcement agencies from the Crimes Act 1961 or from the New Zealand Bill of Rights Act, or excluding all heritage buildings in a region (or nationally) from the protection of the Historic Places Act.

The power to modify acts of Parliament could be used to increase the rate of GST or income tax, without reference to Parliament.

The ability to extend the provisions of any New Zealand statute could be used to extend the application of the new Search and Surveillance Act to even more Government agencies.

Regulations under the Public Safety Conservation Act 1932 were intended to be passed only during periods of national or local emergency, and had to be referred to Parliament for subsequent approval. However, the Canterbury Earthquake Response and Recovery Act 2010 has no such limitations, and permits the amendment of all acts of Parliament (although not regulations) for any purpose. It has long been an established constitutional principle that the Crown could not legislate without Parliament.

Parliamentary sovereignty has been at the cornerstone of our constitutional arrangements since at least the 17th century.

In the words of A V Dicey, writing in 1885: "The principle of parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament."

The Canterbury Earthquake Response and Recovery Act 2010 runs contrary to this previously fundamental and sacrosanct principle, and is a virtually unprecedented abdication of power by the legislature in favour of the Crown.

Parliament has effectively authorised the Crown to amend any legislation, for any purpose.

These purposes need only remotely relate to the earthquake.

It is not clear how such a blanket legislative reform can be justified, or why it should have been seen by the Government as a necessary response to the 2010 earthquake.

Civil liberties groups and the parliamentary opposition severely criticised the Public Safety Conservation Act 1932. Readers may recall the controversy and lobbying which led to its eventual repeal in 1987.

Speaking in 1987, during the third reading of the bill to repeal the Public Safety Conservation Act, Geoffrey Palmer, the author of Unbridled Power, said that its repeal (together with the Economic Stabilisation Act 1948 and the National Development Act 1979) removed from the statute book: "Acts of the widest possible scope, under which it was possible to make regulations of the widest possible character to govern the country by executive fiat without reference to Parliament".

With the passage of the Canterbury Earthquake Response and Recovery Act 2010, such an act is once more on the statute books.

However, public opposition to the much more all-encompassing 2010 legislation has been strangely muted.

Response to this unprecedented legislation from the legal fraternity and academia has been widely critical. An open letter issued on September 28, from 27 constitutional law experts from all six New Zealand law faculties, described the act as a "dangerous and misguided step" that constituted "an extraordinarily broad transfer of lawmaking power away from parliament and to the executive branch, with minimal constraints on how that power can be used".

Jonathan Temm, president of the New Zealand Law Society, has pointed out that the "powers delegated to ministers by the act are potentially at odds with the principles of the rule of law".

There has, however, been little public debate on what must be regarded as one of the most extreme legislative acts ever seen in New Zealand.

New Zealand remains a democracy, but for Parliament to transfer such extensive powers to the Crown, and thereby abdicate its own responsibility on behalf of the people, is constitutionally very questionable.

At the time of writing, the Crown has already issued 14 orders-in-council amending or repealing legislation and regulations, in fields as diverse as resource management, civil defence, historic places and local government. Specific legislative changes may well have been required as a result of the Canterbury earthquake (although that is by no means certain), but these could have been implemented as and when needed, by specific legislation.

This would have been a much more appropriate response to the challenges of the earthquake.

* This article was issued by the Public Issues Committee of the Auckland District Law Society Inc, which advises its views are its own. The article does not necessarily represent the views of all lawyers, and the subject has not necessarily been considered by the Council of the Auckland District Law Society.

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