Canterbury's earthquake is worse than an infestation of zombies ...

In order to rebuild Canterbury after the earthquake, Parliament has given the government legal powers far wider than it would have if ravening undead hoards were to spread through our land.

My recent post on the (now) Canterbury Earthquake Response and Recovery Act 2010 (CERRA) seemed to strike a chord with fellow blogosphere denizens - or perhaps Judge Harvey's decision that Cameron Slater was guilty of breaching name suppression laws has just frightened them into dealing with safer topics for a while.

Somewhat surprisingly, however, the issue has attracted barely a ripple of interest in the "MSM". A few newspaper stories reported the Greens' concerns with the legislation, before noting that they ultimately voted for it. The electronic media seem to have ignored it altogether. A notable exception to this apathy, however, is today's New Zealand Herald editorial (as compared with the Pressrather feeble effort). Kudos to those at the Herald's helm for realising that the effective appointment of an executive dictatorship, be it ever so benign in intent, is worthy of a raised eyebrow.

I guess the problem is that given the lock-step support for the legislation in Parliament, there isn't a dissenting voice to create the necessary conflict to drive a story. High-falutin' concepts like "the rule of law" and "separation of powers" are all very well in the classroom, but the don't really come across on the TV screen or radio. What's needed is someone reputable to call Gerry Brownlee a wanna-be Caesar, so that he can accuse them of caring nothing for the victims in Christchurch ... and then it is all on. After all, that's what good journalism is all about - right?

But enough of the bitching. My reason for posting again so soon on this issue is to develop a comparison between what Parliament has just done and what it did the last time it considered what response is needed to an emergency situation. In my last post, I opined:

"In my view, we haven't seen anything this potentially draconian on New Zealand's statute books since the Public Safety Conservation Act finally was consigned to history in 1987."

Since writing that, it has been suggested to me that the CERRA actually was modeled on another relatively recent piece of legislation - the Epidemic Preparedness Act 2006 (EPA). This latter legislation was adopted with unanimous support at the height of the Bird Flu/Swine Flu/SARs panic, when the country was gearing up for the (purportedly) imminent arrival of some rampant virus that would shut the country down and kill a large number of us.

(For the sake of brevity and because I really liked the movie, I'm going to refer to this as the "28 Days Later" scenario - anyone who doesn't know what I'm talking about can watch this.)

To cope with such an eventuality, the EPA permits the declaration of an "epidemic notice". When such a notice is given, Ministers are empowered to change Acts of Parliament by Orders in Council (OIC). So far, so much like the CERRA. But that's where the similarities end.

For one thing, the Ministers' powers to change primary legislation under the EPA are far more heavily circumscribed than under the CERRA. The Minister of Health has broad authority to change any legislation that is administered by the Ministry of Health, provided that the Ministry's chief executive says in writing that the change is necessary to combat the epidemic. That makes sense, given the centrality of health legislation to the battle against disease.

But all other enactments can only be changed by an OIC to remove a "requirement or restriction", where the Ministry's chief executive says in writing that this "would be impossible or impracticable to comply (or comply fully) with". So, changes can only be made where there would otherwise be unavoidable non-compliance with the law, not to simply ease the State's response to the problem.

Compare this to the power given under the CERRA, where a Minister may make any change to (virtually) any enactment, without necessarily being told that the change is necessary, and only having to "take into account" the purpose of the legislation - which is very broadly defined as basically "fixing up Canterbury".

What is more, the EPA has two layers of oversight to it. Any OIC must be laid before Parliament as soon as practicable, and MPs can (if they wish) disallow the instrument by a majority vote. The CERRA has a broadly similar regime, albeit one that takes more time to complete, via the Regulations Review Committee. However, the EPA also leaves completely open the avenue of judicial review - anyone concerned that the powers it grants have been misused can apply to the High Court for a remedy. By contrast, the CERRA states that courts may not examine the reasoning or process of Ministers in advising that an OIC be made, while OIC's cannot be declared invalid if they are inconsistent with an enactment.

In the comment thread of my last post, as well as on other comment threads, there's been a bit of a debate as to just how broad this attempted ouster of the court's function is, as well as how effective it likely would be in practice. It's probably an indictment of the legislation that we can't agree on just what it means. But in any case, the very fact that the CERRA tries to exclude the courts from reviewing the executive's actions under this legislation is pretty dodgy.

And its not as if the issue hadn't been thought about before "the big one" struck. Back in 1991, the Law Commission put out a pretty comprehensive report on what powers government has to respond to emergencies and what principles should govern legislation in this area. It strongly advised (see Chapter 5) against trying to keep the courts out of the review business. Parliament didn't even consider trying to do so when debating the EPA.

My point is that the process leading to the EPA and the process leading to the CERRA make for a revealing contrast. With regard the former, Parliament worked cooperatively to find the appropriate balance between the need for swift and decisive action and accountability and oversight of that action. The powers thought necessary were carefully set out, and subjected both to pre-conditions before they could be exercised and review mechanisms after the fact.

With regard to the latter, powers were randomly stuffed into the legislation on the basis that "it might be needed down the track". In order to ensure the power can be used, efforts are made to keep the courts from sticking their noses into the matter. Broad promises that there won't be misuse are given in place of mandated processes and legal checks.

Now, I know the circumstances are different. One was a planning process for an upcoming (and thankfully yet to come) crisis. The other was a response to an immediate and devastating event - albeit one that hasn't actually directly killed anyone, nor has it turned Christchurch into Port au Prince.

But all the same, I do wonder whether we really needed to respond to Canterbury's plight by turning Gerry Brownlee into Cincinnatus. I mean, are Canterbury's problems worse than  a 28 Day Later outbreak? And if not, why does government need more power to deal with the former than the latter?

Oh - for those who think I'm being tongue in cheek about the risk of the rage virus emerging in New Zealand, I would remind you that there are researchers like this out there ...