CERRA vs. NZBORA - or, when acronyms attack ...

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.