Apparently the Canterbury earthquake emergency legislation is completely consistent with our fundamental rights and freedoms. Or ... is it?

One of the (many) things that surprised me about the passage of the Canterbury Earthquake Response and Recovery Act 2010 (CERRA) through Parliament was the absence of a notice from the Attorney-General flagging an inconsistency with the New Zealand Bill of Rights Act 1990 (NZBORA).

The Attorney-General is required to provide such notices under the NZBORA, s.7 any time a bill is introduced into the House that contains provisions that (in the Attorney-General's opinion) limit guaranteed rights in a way that cannot be demonstrably justified in a free and democratic society. Of course, it is always a judgment call whether this duty is triggered in a given case, one on which reasonable people can and will sometimes disagree.

Nevertheless, the present Attorney-General, Chris Finlayson, has done a good job of evaluating bills and telling the House about potentially rights-infringing measures. He's done so 13 times in the past couple of years, including reports on some of his own Government's flagship pieces of legislation. All the evidence shows he takes this job of warning the House about rights problems seriously - even if he then often has to go ahead and vote for the bill anyway.

So I was curious as to why he didn't think it necessary to issue a s.7 warning with respect to the content of the (then) CERR Bill. Well, the answer appears to lie in advice given to the Attorney-General by officials from the Ministry of Justice, which helpfully has been made available here. This routine publication of this advice on NZBORA issues is "A Good Thing": there's a strong argument that the information doesn't have to be made public (as it is legally privileged), but equally there's a great deal of value in doing so.

In essence, the officials' advice was that while the CERRA's power to suspend, amend or extend enactments by Order-in-Council potentially could conflict with NZBORA rights depending upon how it got used, the dire circumstances Canterbury faced justified the power. Furthermore, the limits that the CERRA places on how Orders-in-Councils may be used mitigates any potential inconsistency. In particular, the fact that no Order-in-Council may authorise actions inconsistent with the NZBORA means that the CERRA powers are not themselves NZBORA inconsistent, and if they are misused in a NZBORA inconsistent way the courts can step in to invalidate them.

At least, I think this is what the official advice is saying, although it isn't spelt out  in quite such clear terms. That may be because the CERRA is a bit confusing in how it has been put together - especially the relationship between ss.6(6); 7(1); 7(5) & 7(6). But it would accord with the interpretation of those provisions advocated by VUW's resident expert on all matters NZBORA, Claudia Geiringer, in this comment thread ... and if she thinks it works that way then that is good enough for me.

OK then - the Attorney-General was told by his officials that the CERR Bill was consistent with the NZBORA. And while it always is the Attorney-General's call on whether or not to accept that advice, the reality is that he usually will. So there's no surprise that no s.7 notice was issued - right?

Well, maybe ... or maybe not. Because the advice to the Attorney-General contains a couple of discrepancies when placed against the bill actually presented to the House. And these discrepancies make me think that the Ministry of Justice officials didn't get a chance to advise the Attorney-General on the final version of the proposed legislation that MPs were asked to pass into law ... meaning that there is a real question mark as to whether the Attorney-General was properly able to carry out his statutory duty under the NZBORA.

What are these discrepancies? Well, for one thing, the officials' advice states that:

"an Order in Council must be presented to the House of Representatives as soon as practicable after it is made (cl 8), and may be subject to a motion of disallowance if agreed to by the House within 6 sitting days after the day on which the motion was made (cl 9)."

This speedy parliamentary oversight is one of the factors leading them to give the proposal the all-clear from a rights perspective. Except it's not what the
CERR Bill put before the House (and thus the final CERRA) said. It instead provides in s.8 that the Regulations (Disallowance) Act 1989 will apply to Orders in Council - a process that admittedly also allows MPs to override ministerial decisions, but following a much slower timetable than that originally proposed.

The other discrepancy is what the officials' advice doesn't say. Under the CERRA, s.6(3), "The recommendation of the relevant Minister [to make an Order in Council] may not be challenged, reviewed, quashed, or called into question in any court." Further, under s.19, anyone who acts under the authority of an Order in Council is protected from any legal liability for those actions; while s.20 says you have no right to any compensation for any loss you may suffer as a result of any actions taken under the CERRA.

These provisions pretty clearly impose a limit on the individual right to justice that is guaranteed under the NZBORA, s.27. And you'd expect the Ministry of Justice officials to identify that limit and explain why it is justifiable - if it is justifiable, that is. The fact that their advice doesn't discuss the matter at all therefore suggests to me that these provisions were not in the version of the legislation they saw.

If I'm right about this, and the officials didn't simply overlook a pretty glaring NZBORA issue, then how did this happen? Well, the timeline helps explains things a bit. The Ministry of Justice advice was given to the Attorney-General on September 12. Cabinet then considered the legislation on September 13. It went into the House and was enacted into law on September 14.

What likely happened, I think, is that the original legislative proposal the officials advised on got beefed up by Cabinet: oversight by the House was watered down; the attempt to exclude judicial review was inserted; exclusion of liability provisions were added. And those officials didn't then have the time or opportunity to consider and advise on the new provisions before the bill went into the House ... at which time the Attorney-General's duty to advise the House under s.7 had ended.

Now, I don't want to be seen as taking too big a swing at the Government over this matter. Green MP Kennedy Graham made it clear that the whole creation and introduction of the bill was "a pretty fluid situation": the felt need to act quickly meant that everyone involved was left scrambling a bit. Furthermore, even had the Attorney-General attached a s.7 notice to the final bill (by no means a certainty, even had he received advice on it), I suspect that it wouldn't have been enough to overcome MP's desire to show complete solidarity with the people of Canterbury.

Nevertheless, the fact that a bill was put before the House asking MPs to give ministers extremely wide lawmaking powers that are subject to limited legal oversight without allowing the Attorney-General time to carry out fully his statutory obligation to review its consistency with New Zealander's most fundamental rights is ... how to put this ... somewhat concerning. In point of fact, it causes my collies to wobble even more than they were before (to use a technical legal term).

I'll conclude by noting that I'm not the only legal academic who has some pretty grave concerns about this little episode in New Zealand's legislative history. And so, to steal a trick from Jon Stewart, let me announce here that I am announcing that next week I will have an announcement to make on that subject.

Stay tuned.

Comments (16)

by Daniel Jackson on September 25, 2010
Daniel Jackson

The Act is terrible and the advice from Crown Law unclear and strange, but I wonder whether there is actually a BORA breach. The privitive clause probably won't work, particularly when you take into account s 6, in which case it won't breach BORA. The lack of compensation would be problematic if BORA protected property rights, but I'm not sure that is breaches s 27. The first subsection of s 27 deals with natural justice and the second with judicial review, so they aren't applicable. I don't think the third section is applicable either; it relates to special procedural or jurisdictional privileges possessed by the Crown. The Act merely provides that it does not give rise to a right to compensation.

by Andrew Geddis on September 26, 2010
Andrew Geddis

Daniel,

You may well be right - the AG may actually not have felt he needed to issue a s.7 report even had he been fully advised on the final version of the bill. But he wasn't. So we'll never know - which is my primary (and process focused) point.

But I'm not entirely convinced re the privative clause issue (s.6(3)) - it does seem intended to prevent the courts from considering whether the Minister's actions in/processes leading to advising that an OIC be made breach any duty of natural justice, fail to consider relevant considerations or considers irrelevant consideration, is flatly unreasonable, etc. That intent seems inconsistent with the s.27(1)&(2) guarantee. So there as at least a prima facie limit imposed, which needs justification. Or are we really so sure that a court will look at s.6(3) and say "tough - we're going to review all this stuff anyway" - in which case there is no limit because s.6(3) is a completely dead letter?

But I take your point on the "no liability/no compensation" issue ... or does this attempt to deny plaintiffs a remedy raise questions about whether the right to judicial review is somehow limited (i.e. it doesn't in itself stop you asking for review, but it will stop you getting anything useful from that review). Not an area I know much about - does anyone else?

by Daniel Jackson on September 26, 2010
Daniel Jackson

Andrew,

I should make clear that I entirely agree regarding the process.

Section 6(3) does seem to be intended to preclude judicial review, but it is not very well-drafted. It only relates to the Minister's recommendation, not the Order in Council. But who would try to review the recommendation, rather than the actual decision, anyway? The section could be read to preclude a judicial review of the Order considering matters relating to the Minister's recommendation, but the courts are unlikely to be inclined to read it broadly - and, of course, s 6 of BORA comes into play.

by Andrew Geddis on September 26, 2010
Andrew Geddis

Daniel,

I quite agree that s.6(3) doesn't preclude the review of an OIC on vires grounds (which would include overall inconsistency of an order with the NZBORA). But it will stop the courts examining what the Minister did or didn't do before recommending the OIC get made - hence any failure to accord natural justice to those affected by the OIC, or a failure to consider relevant matters (including whether the OIC really was necessary) cannot be argued before the courts (if s.6(3) really works as it was intended to).

Point being - there are a range of reasons why a court might find a particular OIC was improperly made aside from its purpose or substantive content. But s.6(3) is intended to stop the court looking at those issues. Hence the limit on the NZBORA s.27 rights - which needs to be justified.

by Daniel Jackson on September 26, 2010
Daniel Jackson

My point is that the framing of it in terms of the Minister's recommendation gives the courts room to continue reviewing the Orders on all the normal grounds - notwithstanding the intention behind the provision. Frankly this privitive clause is not as strong as the one in Anisminic, so I'm highly sceptical that it will work. If it doesn't work there won't be violation.

by Andrew Geddis on September 26, 2010
Andrew Geddis

I guess we'll never know ... unless and until a Minister does something we all hope he never does.

Nevetheless, can we agree that it still would need to be noted as a potential NZBORA limit, and have some discussion as to (i) whether it is a limit on s.27 and (ii) if so, whether it is justified under s.5? And the fact there was no such discussion is revealing of a breakdown in process?

by Daniel Jackson on September 26, 2010
Daniel Jackson

I certainly agee with that.

The advice from Crown Law says: "While clause 6 does not directly raise an issue of inconsistency with the Bill of Rights Act, the way the clause is framed impacts on the proportionality of the Orders in Council once they are in place." Does this mean that Crown Law thought that Orders in Council didn't have to comply with BORA? How else would the Henry VIII clause be a limitation on rights in BORA?

by Simon on September 27, 2010
Simon

Andrew,

A comment ot two from a layperson's viewpoint.

The advice is ...umm...very brief, isn't it? And the first sentence of paragraph 5:

'We consider that the creation of this power is necessary given the devastation that has been caused by the Canterbury earthquake and the continuing aftershocks, and that this mechanism is the best and most efficient way to assist with the recovery response.'

Umm, how is that a substantive legal interpretation? This seems to be a begged question with no supporting analysis.

Slightly off topic, I heard some opinion from the Wellington lunch bars that CERRA was the baby of the Nick Smith's MfE EPA team and that MED were invisible in the process. The word is that the MfE EPA team had a draft report ready the Tuesday after the Saturday, so they got the job. However, they were a bit shocked that they had a strict five-working day time line imposed on them.

Finally, should there have been a Regulatory Impact Statement for the CERRA?

by Graeme Edgeler on September 27, 2010
Graeme Edgeler

And so, to steal a trick from Jon Stewart, let me announce here that I am announcing that next week I will have an announcement to make on that subject.

You're forming a political party. Or resigning from the LAC out of protest for its silence. Laying professional ethics complaints against every member of the NZLS Rule of Law Committee for not standing up for the Rule of Law. Or intend to form the vanguard of the Revolution.

The suspense!

by Matt McKillop on September 27, 2010
Matt McKillop

Andrew -- what of the inconsistency with s 27? I know the BORA was enacted after the CREEDNZ case, but isn't it still obvious that the legislative intention here is for urgency, overriding any right to consultation?

by Claire Browning on September 28, 2010
Claire Browning

You're forming a political party. Or resigning from the LAC out of protest for its silence ...

That's if Sir Geoffrey Palmer [who chairs the LAC, reads Pundit, occasionally, and returns to town in a few days] doesn't fire him first ...

by Matt McKillop on September 28, 2010
Matt McKillop

Sorry Andrew, if I could clarify: my comment was with regard to your comments on the requirement of natural justice, not the other inconsistencies with s 27 NZBORA.

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, .

 

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 friend 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 Simon on October 05, 2010
Simon

Andrew,

MED have confirmed to me that there was no Regulatory Impact Statement. Here is their letter

https://docs.google.com/fileview?id=0B8LhMBA3NXL4MTdhYTk1ZjAtZGVlYy00ZTk...

Which seems to conflict with MED's policy which says in para 11; "A RIS is required for all policy proposals submitted to Cabinet with legislative implications (leading to government bills and statutory regulations)."

CERRA does not seem to fit within the exemptions in para 12. The MED RIS policy is at:

http://www.med.govt.nz/templates/MultipageDocumentPage____608.aspx#P27_4052

 

 

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