Twenty-seven academic experts in constitutional law have a warning about the legislative response to Canterbury's earthquake.

In my last post, I indicated that there is widespread concern amongst legal academics with an expertise in constitutional law about the precedent set by the Canterbury Earthquake Response and Recovery Act 2010. Today a press release has been issued, setting out the reasons for that concern. It contains an open letter, signed by members of all six law schools in New Zealand, as well as expatriate New Zealanders at overseas institutions.

We hope that by making our views public we will help contribute to a rethink of this matter, as well as cause future parliamentarians to pause before acting in a similar manner.


Deep concerns over Canterbury earthquake legislation outlined in scholars’ open letter

- Call for rethink on Act that lacks constitutional safeguards and sets dangerous precedent -

A group of 27 legal scholars from New Zealand and overseas has written an open letter outlining their deep concerns over the constitutional implications of the Canterbury Earthquake Response and Recovery Act 2010.

The full text follows below:

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An open letter to New Zealand’s people and their Parliament.

We write as a group of concerned citizens with academic expertise in the area of constitutional law and politics.

We share New Zealand’s deep concern about the physical damage to Canterbury and the personal trauma this has caused the region’s residents. All levels of government have an obligation to help the people of Canterbury rebuild their homes, businesses and lives as quickly as possible.

However, while we are united in wishing to help Canterbury recover, there is a risk that the desire to do “everything we can” in the short term will blind us to the long-term harms of our actions. In particular, abandoning established constitutional values and principles in order to remove any inconvenient legal roadblock is a dangerous and misguided step.

Yet this is what our Parliament has done, in just a single day, by unanimously passing the Canterbury Earthquake Response and Recovery Act 2010. It represents an extraordinarily broad transfer of lawmaking power away from Parliament and to the executive branch, with minimal constraints on how that power may be used. In particular:

  • Individual government ministers, through “Orders in Council”, may change virtually every part of NZ's statute book in order to achieve very broadly defined ends, thereby effectively handing to the executive branch Parliament's power to make law;
  • The legislation forbids 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;
  • Orders in Council are deemed to have full legislative force, such that they prevail over any inconsistent parliamentary enactment;
  • Persons acting under the authority of an Order in Council have protection from legal liability, with no right to compensation should their actions cause harm to another person.

These matters are not simply "academic" or "theoretical" in nature. Over and over again history demonstrates that unconstrained power is subject to misuse, and that even well-intentioned measures can result in unintended consequences if there are not clear, formal measures of oversight applied to them.

We do acknowledge that the powers granted by the Act have some restrictions on their use. They only can be used to achieve the objective of the legislation (although this is very broadly defined). Five key constitutional statutes are exempted from their ambit. Orders in Council inconsistent with the New Zealand Bill of Rights Act 1990 may not be made. Parliament can review and reject Orders in Council, albeit through a rather slow and protracted process.

Nevertheless, the vast amount of lawmaking power given to ministers renders these limits insufficient. In particular, there need to be tight restrictions on the enactments a minister may change through an Order in Council and clear and precise grounds that justify any such change. These grounds also need to be open to review by the judiciary, to ensure that they really are met in any particular case.

Any claim that such safeguards are unnecessary because the Act’s powers will be wisely and sparingly applied, and that informal "consultation" and "public pressure" will ensure that this happens, must be resisted. Only formal, legal means of accountability, ultimately enforceable through the courts, are constitutionally acceptable.

Furthermore, the Act now stands as a dangerous precedent for future "emergency" situations. This earthquake, devastating though it has been, will not be the last natural disaster to strike New Zealand. When the next event does occur, inevitably there will be calls for a similar legislative response, which will be very difficult to resist given this example.

Finally, we emphasise that we have no partisan agenda to pursue here. The fact is that all MPs of every party joined in this action. They did so with the best of intentions, driven by an understandable desire to display their solidarity with Canterbury’s people.

But we feel their action was a mistake, and they too quickly and readily abandoned basic constitutional principles in the name of expediency. We hope that with a period to reflect on their action and the consequences this might have that they now will revisit this issue in a more appropriate manner.

Signed:
Professor Stuart Anderson, Faculty of Law, University of Otago.
Mark Bennett, Faculty of Law, Victoria University of Wellington.
Malcom Birdling, Keble College, University of Oxford.
Joel Colon-Rios, Faculty of Law, Victoria University of Wellington.
Richard Cornes, School of Law, University of Essex.
Trevor Daya-Winterbottom, Faculty of Law, University of Waikato.
Professor John Dawson, Faculty of Law, University of Otago.
Richard Ekins, Faculty of Law, University of Auckland.
Associate Prof. Andrew Geddis, Faculty of Law, University of Otago.
Claudia Geiringer, Faculty of Law, Victoria University of Wellington.
Kris Gledhill, Faculty of Law, University of Auckland.
Professor Bruce Harris, Faculty of Law, University of Auckland.
Professor Mark Henaghan, Faculty of Law, University of Otago.
Dr John Hopkins, Law School, University of Canterbury.
John Ip, Faculty of Law, University of Auckland.
Carwyn Jones, Faculty of Law, Victoria University of Wellington.
Dean Knight, Faculty of Law, Victoria University of Wellington.
Prof. Elizabeth McLeay, Faculty of Law, Victoria University of Wellington.
Steven Price, Faculty of Law, Victoria University of Wellington.
Vernon Rive, Law School, Auckland University of Technology.
Mary-Rose Russell, Law School, Auckland University of Technology.
Katherine Sanders, Faculty of Law, University of Auckland.
Dr Rayner Thwaites, Faculty of Law, Victoria University of Wellington.
Professor Jeremy Waldron, New York University School of Law.
Ceri Warnock, Faculty of Law, University of Otago.
Nicola Wheen, Faculty of Law, Univerity of Otago.
Hanna Wilberg, Faculty of Law, University of Auckland.

Comments (20)

by Pete Sime on September 28, 2010
Pete Sime

Well said. Speaking as an enrolled barrister and solicitor (I've never practiced, though) I share your concerns. I hope those in power gives this their full attention.

by Lew on September 28, 2010
Lew

NZPA wire story out about this now. At last. So that's what it takes to get actual media coverage of such a topic: 27 legal academics.

L

by Ian MacKay on September 28, 2010
Ian MacKay

Compelling. Concerning. MSM response?

("Call for rethink on Act that lacks constitutional safeguards and sets dangerous precedent.) Thought it was going to be another ACT.

by John Monro on September 28, 2010
John Monro

It was gratifying to read this open letter, but of course King Gerry isn't taking such nonsense lying down, he said tonight on the radio "if people really think we're going to abuse this process, then they're not even worth responding to". So this overpaid, overstuffed and overweened woodwork teacher dismisses the collective several hundred years worth of constitutional knowledge of leading experts and academics with a "not worth responding to", exactly and worryingly proving the very point they are making.

This failure of our parliamentary democratic processes to protect vital political and legal freedoms in this instance has been the subject of much heated debate in the blogs of the Green and Labour parties, with many long-faithful supporters and members widely, and wisely, berating their parliamentary representatives for their ethical negligence and their political cravenness. This open letter should give these parliamentarians pause for thought; for the Greens in particular (I am a Green party member) this was  a failure of principle which this letter should serve as a stark warning; never sell out your principles, even for the best of intentions or because of some fear of ridicule or unpopularity. Labour and the Greens lost a few hundred feet in a slippery descent down the slopes of the moral high ground - for Labour, it was disappointing but not surprising, for the Greens, it was both.

(PS. I have no prejudice against woodwork teachers. I do have a prejudice against arrogant and ignorant woodwork teachers)

by Dean Knight on September 28, 2010
Dean Knight

http://www.radionz.co.nz/news/canterbury-earthquake/57956/quake-recovery-law-'misguided'

"Justification not needed - Brownlee

The Minister of Earthquake Recovery, Gerry Brownlee, says that the Government doesn't need to justify the law, and that any suggestion it will be misused is not worth responding to.

Mr Brownlee says he knows the dislocation the people of Canterbury have suffered and says they expect the Government to do whatever it can to put their lives back together."

 

by Simon on September 28, 2010
Simon

Kia kaha and good on you, Team Constitution!

by Justin on September 28, 2010
Justin

Welcome to the last absolute Diceyian Westminster Parliament in the World. All those that cling lovingly to parliamentary sovereignty should rejoice that they can now utilise the great weapon of the citizen and vote the usurpers out. Oh wait, nobody but the constitutional lawyers will give a rats by election time. As for exempting the BORA, we should be greatful for small mercies and that they didn't enact the blue eyed babies law at the same time:)

Brownlee's view that the aweome breadth of the power unproblematic if it is not 'abused' epitomises the almost universal adoration for untramelled parliamentary sovereignty over the citizens power to ask the courts to reject the powers as unreasonably broad.

Bring on full-throttled constitutional review. I would be more than happy for the Supreme Court to have the power to send this back to Parliament saying 'must try harder'.

As someone who has never been comfortable with an all powerful unicameral parliament, I for one don't feel any worse for the enactment of the CERRA than I already did.

 

by Mark Wilson on September 29, 2010
Mark Wilson

Mr Geddis said ... and the rest of Mark's comment falls foul of an OIC suspending his right to abuse people on their own blogsite. All in the best interests of helping Canterbury recover, you understand.

by Helen Lowe on September 29, 2010
Helen Lowe

I am not a constitutional expert, but this is the comment I made on Christchurch's Plains 96.9 FM, Women on Air, last Saturday and which I have reiterated to both my MP, Brendan Burns, the National MP most active in the Richmond area of Christchurch where I live, Nicky Wagner, with cc's to both John Keys and Phil Goff:

"There is no question that the September 4 earthquake has had a widespread effect upon the physical infrastructure of our Christchurch community. We can also be grateful that, largely because of the legislative protections in place, particularly in terms of structural standards and building codes, we avoided loss of life and major injury, and more widespread infrastructural collapse.

I note with concern therefore, that the government’s response to the need to restore Christchurch and its environs is to pass legislation granting itself sweeping powers to set aside a huge raft of legislative protections at will. Even more concerning, is that in addition to granting itself these sweeping powers, the government has removed any right for citizens to challenge earthquake recovery decisions legally, no matter how ill conceived they may turn out to be. In addition, the right to scrutinise the activities and decisions of the Earthquake Recovery Commission under the provisions of the Official Information Act, has also been set aside.

Rights of redress through the courts are a fundamental plank of our democracy. Removing that right, together with the public’s right to scrutinise the activities of a public body, particularly one charged with such sweeping powers to over-ride existing legislative protections is highly questionable.

I am even more concerned because this is not the first time this government has taken this step. When the Canterbury Regional Council was disbanded earlier in the year and commissioners set in place, the government also removed citizens’ right to appeal the decisions of the commissioners, on plans and Water Conservation Orders, to the Environment Court—a right that had until then been ours under the Resource Management Act and which still exists in other parts of the country—for now.

The lack of checks and balances on the power of government has long been a concern in New Zealand, which largely relies on a three-year election cycle to keep governments honest. The public’s right of scrutiny of government actions and activity, through the courts and through instruments such as the Official Information Act, are the only other significant democratic check that we have. I am chilled therefore, that we have a government that seems so willing to both enact sweeping powers through legislation and to remove rights of redress through the courts.

I believe we may be seeing the start of an incremental erosion of democracy in this country—unless we send a very clear message to the government, and in fact all political parties, now, making it clear that what they are doing is untenable and will not be accepted by the electorate."

 

 

 

by r0b on September 29, 2010
r0b

So Andrew, according to Brownlee you're all "hand-wringing academics":

http://norightturn.blogspot.com/2010/09/contempt-for-our-constitution.html

Sadly, that's exactly the sort of response I expected from this government.

 

by Bernard Darnton on September 29, 2010
Bernard Darnton

Forgive me if this is retarded but ... is it theoretically possible for King Gerry to use his new superpowers to suspend the part of the CERRA that prevents him from suspending the Electoral Act?

by Andrew Geddis on September 29, 2010
Andrew Geddis

Bernard,

I'd imagine any such attempted OIC would be deemed "ultra vires" ... hard to see how it relates to the purpose of the CERRA.

by Steve F on September 29, 2010
Steve F

Andrew,

 This website is a real breath of fresh air. I am particularly drawn to your columns as they focus on my pet interest of law, that, being in my late 50’s , I have returned to Uni to study, albeit very much part time...

Let me start by offering up a proposition.....the minimum entry requirement to a seat in the parliamentary chamber should include, Laws 121, 122 and 123.

 

I am staggered at the actions of our supreme law making body over the Canterbury disaster legislation that I learned of whilst on holiday overseas. This flies squarely in the face Baron de Montesquieu’s landmark constitutional tenet, namely the separation of powers.

 

All the more when one considers how exposed our fragile democracy is considering;

 

1)      The lack of a written constitutional document entrenching our civil and individual rights. Instead we rely on a cobbled together set of conventions and customary practices that lack real teeth, plus a few pieces of legislation that can be overturned in an evening by simple majority.

2)      The absence of an upper legislative chamber to provide further scrutiny on the law makers beneath them. This disappeared some 60 odd years ago when we cut our last legal apron strings to the motherland.

3)      A non binding Bill of Rights, that astonishingly (correct me if I am wrong) is not included in the handful of excluded Acts under CERRA.

 

And here we are, soon to enter a phase in politics that is going to debate and allow the populace to vote on whether to keep an electoral system that in my humble opinion has rescued this nation from slipping into a regime of arbitrary rule making..

 

I have always been mindful however of the undisclosed “forth power” in the equation, that is, an inquiring media and free press, however their uncanny quietness in the past weeks has me worried. Perhaps if they kick up too much of a fuss they’ll end up with an “Order in Council” gagging notice.

 

I assured all my overseas friends that if they ever visited New Zealand they could sleep soundly at night, secure in the knowledge that their liberties and rights will be preserved. I shall now warn them that a tot or two of brandy before bed will definitely help.

 

 

by Blair (for Mayor) Anderson on September 29, 2010
Blair (for Mayor) Anderson

There is only one 'republican' minded mayor running for office in Christchurch who seems to have any understanding of the ramifications of CERRA and breach of BORA/due processes that have preceded these decisions.

The fourth estate in maintaining the Jim/Bob show has  aided/abetted this injustice.

That CTV and NewsTalkZB as vectors for informing the local voter dynamic has been remiss in informing the electorate in a timely manner. With 90seconds each on friday morning (restricted to rebuilding) and 24 minutes on CTV on friday evening...

The PRESS has been woeful in maintaining the cancellation of public debate.

Yardley has ensured he has been the gatekeeper and single biggest determinant of who is in the race.

As a prospective Mayor I would, if elected take the best legal advice to re-enable judicial oversight/appeal and enhance FULL and unfettered disclosure of ALL pending decisions to BEST protect civic engagement and faith in good governance.

by stuart munro on September 30, 2010
stuart munro

One result of Brownlee's unseemly power grab is kind of promising though: he has taken upon himself more power than any NZ minister has previously enjoyed, more than Frank Bainimarama, right up there with Kim Jong Il, Stalin & Mussolini.

So he has no excuse whatsoever for failure of any kind. It's that thing about being careful what you wish for.

by Geoff Fischer on September 30, 2010
Geoff Fischer

The New Zealand constitution exposes the nation to a particular risk of  absolutist and autocratic government.   The "Crown" in New Zealand is the executive
power.  The Crown, in the person of the Queen, appoints the Prime Minister, the Cabinet, the Governor General and the judiciary.   The Crown controls the police
and military forces, and through the Ministers of the Crown, the state bureaucracy.   Because the legislature (Parliament) in effect elects the Prime Minister, who is
subsequently appointed by the Queen,  it may appear that Parliament, the legislature, is the dominant institution of government.  However Parliament is formally
subservient to the executive (the Crown) through the oath of allegiance, and it is also politically subservient because legislators can only be elevated to the executive
(ministerial rank) by the grace and favour of the Prime Minister.   Most legislators covet an executive role ( ministerial portfolio) and that ambition encourages an
attitude of deference towards the executive.

In jurisdictions where there is a clear distinction between the legislative and executive roles the legislature jealously protects its perogatives against the executive, and uses control of supply (the right to levy taxes) as a check upon the actions of the administration.   In New Zealand there is no such separation of powers and
interests.   The legislature is subservient to the executive because the executive can confer privileges upon, or withdraw privileges from, individual legislators.  As a
result the executive is able to manipulate the legislature, to the point that it has now acquired autocratic powers.   Parliament has abdicated its  legislative  powers in
favour of the executive through the Canterbury Earthquake Response and Recovery Act.   What is worse, in the same act by which  parliamentarians surrendered
their own legislative powers, they have also removed the power of the judiciary to review and control the actions of the executive.   With the legislature sidelined by
consent, and the judiciary sidelined by fiat, the realm of  New Zealand is now a formal autocracy.

This abrupt plunge into autocratic government was possible because New Zealand is a monarchy in which the Crown is the ultimate authority.   It could not have
happened in a nation with a democratic constitution.   It would be unthinkable in the United States for example.   The US Congress could not constitutionally
surrender its power to legislate, even if it wished to do so.  It could not strip away the rights of the judiciary.  Most importantly, it would have no reason to do any of
these things.   By contrast, New Zealand parliamentarians have the both the motive and the ability to institute absolute rule.   Absolutism comes naturally to an
institution that has been trained for generations to give allegiance to the hereditary monarch of a foreign power.

How does the office of Governor-General fit into all this?   Sadly, all too well. Governors-General drawn from the judiciary have higher standards of personal
integrity than the casually corrupt politicians who appoint them to the office.   But as judges, they are trained not to question the perrogative of the legislature.  When
Parliament, however reluctantly, surrenders to the demands of the executive, then a judicial Governor General will also surrender.   And this is exactly what Anand
Satyanand has done.   He has signed off the Earthquake Act, and he has signed every Order-In-Council subsequent to that Act.   His personal integrity is of no use
or relevance in this situation.   He is a pawn of the executive, rendered  incapable of resisting the autocracy by his own judicial ethics.

The lesson of the Canterbury earthquake is that no good can come of tinkering with the monarchy.   It is a fundamentally flawed system which must be totally
uprooted.   The legislature must be separated from the executive.   The judiciary must be separated from both the executive and the legislature.   The Queen and the
Governor-General must be thrown out in favour of  a Head of State whose duty is to act as protector of the constitution.
from www.republican.co.nz

by Mark Wilson on October 04, 2010
Mark Wilson

Hi Andrew

I see even the sunday Star Times mocked the 27 academics for their stupidity. 

by Andrew Geddis on October 04, 2010
Andrew Geddis

It certainly did. (I'd link to the editorial, but it doesn't seem to be on line.) Some context:

1: The editor and I have, shall we say, a somewhat fractious relationship, so is this just his chance for some payback? No, no ... I'm sure he's much more principled than that!

2: The editorial makes much of the fact three "overseas" persons/damned furreners signed the letter, snarkily asking whether these people even know where Christchurch is. Apparently research isn't considered a necessity to write for the SST, as a quick google search would reveal all three were born and educated in New Zealand before taking up academic posts outside the country. So credibility badly damaged there, I think.

3: The letter mocks us for our claim to be non-partisan, pointing out that all parties in Parliament voted for the legislation. This suggests to me that the author has no idea what "non-partisan" means.

In short, if the sum total of opposition to our letter is Clayton Cosgrove calling us latte drinking academics, the Sunday-Star Times exacting poorly reasoned utu, and you ... well then, I feel on the side of angels.

But thanks for being a bit more constructive in your comments than usual. Keep up the improvement.

by Phil Lyth on October 04, 2010
Phil Lyth

Today sees a new law change made using the Canterbury Enabling Act,  this one affecting LIMs  (Land Information Memorandums)

If I was in the area I would be very very suspicious of such a document.  And there is no explanation why the Order in Council delays the issue of LIMs instead of, you know, speeding everything up as we were promised CERRA would do.

 

by on March 07, 2012
Anonymous

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