Sic semper tyrannis

Turns out King Gerry is not an absolute monarch. This is a good thing.

When Parliament passed emergency legislation that gave Ministers broad lawmaking powers in the wake of the first Canterbury earthquake back in September 2010, I said this

[I]t isn't the potential for gross draconian tyranny that may be the real problem. Rather, it is the possibility that the powers might be applied to fix "problems" that really aren't the fault of the earthquake at all. After all, there is a fine line between tweaking a law to rebuild infrastructure and getting rid of an inconvenient legislative barrier to (say) improving the productivity of Canterbury's dairy industry, or allowing a contentious roading work to progress.

Again, I'm not saying Gerry Brownlee (or any other Minister) conciously intends misusing these powers. But once you give a man a hammer, suddenly everything starts to look like a nail. And so it is with Ministers and the power to remake law swiftly and decisively.

Given the High Court's recent overturning of Gerry Brownlee's decision to use his quake-related emergency powers to intervene in Christchurch zoning issues, I'm tempted to say "I told you so". However, were I to do so, I could in turn be accused of misgloating (which is a word Google tells me has never been used before on the internet, so if anyone else wants to deploy it in future they must reference me in a footnote).

Here's why. The powers I (and others) were so worried about were contained in what is called a "Henry VIIIth" provision, which in essence permits a Minister to change the provisions of a statute without having to go through Parliamentary processes. Furthermore, a Minister's decision to make such law changes was (in part) shielded from review by the courts, meaning that the ability to challenge ministerial action was (in part) traduced.

Following the more devastating February 2011 quake, Parliament retained this ministerial power to amend primary statutes (while adding an additional oversight mechanism that I'll come back to) and also expanded the power of the Minister for Earthquake Recovery (i.e. Gerry Brownlee) to change not only primary statutes but also local planning decisions and policies. These latter powers are somewhat complex and scattered through the Canterbury Earthquake Recovery Act 2011 (the Act), so I'm not going to through them in detail here.

We could debate whether it was necessary to give the Minister as much power as he got, or whether he should possess it for as long as he will. However, the important point for the moment is that the use of these latter powers is not protected from review by the courts in the same way as is the former. Which brings us to the present case.

Again, its particular circumstances are complex. To put it in a nutshell, there was an ongoing battle over what rules should govern residential developments on land surrounding Christchurch airport. A Regional Policy Statement had attempted to settle the matter, but some aggrieved parties who would be prevented from developing their land under this Statement had challenged it in the Environment Court. So the matter remained in some limbo.

Then the February Earthquake hit, and all of a sudden there are a lot of folk in Christchurch looking for new land on which to build new houses. So, in order to free up land for rebuilding purposes, Gerry Brownlee was convinced by his officials (who in turn were convinced by the local councils) to step in and amend the Regional Policy Statement to fix the stalemate by saying where people can (and cannot) build houses in the airport's vacinity.

All well and good ... except that under the new rules, some of the aggrieved property owners who had been challenging the Statement in the Environment Court still couldn't build houses on their land. And, now that Brownlee had stepped in and imposed the new rules, their appeal to the Court over the previous set of proposed rules was effectively overridden ... because it becomes moot. 

Which sent them off to the High Court to have the Minister's decision to intervene judicially reviewed. That is to say, the landowners argued that the Minister had misused the powers granted to him under the Act to settle the zoning dispute, meaning that his decision was of no legal effect. And that is what the court has found ... Gerry Brownlee had taken powers given to him for one reason (to help Canterbury immediately recover from the earthquake) and applied them for another set of reasons (to resolve an ongoing dispute over how Christchurch will develop for the next 40-odd years). What is more, he'd used one set of powers under the Act (which didn't require any public input) when he should have used another (which would have permitted public input). And finally, he'd acted in a way that prevented people having their ongoing cases resolved in the Environment Court when Parliament had not explicitly permitted him to deprive people of their right to access to the courts.

So, pretty much a comprehensive rejection of the basis for Brownlee's actions. But before we leap in to mercilessly attack him, a few points to note.

First of all, the officials advising Brownlee recognised at the time of his intervention that it might be pushing the envelope of his statutory powers. However, they took the view that he may as well "suck it and see", in that the worst that could happen is a court would undo his decision (which would in turn simply put things back to the stalemate they were in). 

Second, the Court explicitly accepted that Brownlee thought he was doing the right thing by the region and the earthquake's victims. So it wasn't a case of a Minister doing something for personal or political advantage - rather, it was an overenthusiastic hammer owner mistaking a snail for a nail.

Which might provide some basis for a gloat or two on my part. Except that, as I say, the powers that Brownlee used to make his decision weren't the ones I was writing about back in 2010. In fact, those powers to amend primary legislation appear to have been used in a quite reponsible manner - at least, I haven't seen any evidence that they've been abused (or even stretched in a questionable direction).

(This also means that I/S's claim that this case "points to the need for greater oversight of Brownlee's dictatorial powers. His much-vaunted "oversight board" - which includes his old boss Jenny Shipley - didn't catch this, and it has cost the government a significant sum of money" is slightly off the mark. That "oversight board" (set up under the Act) wouldn't have looked at the use of these powers because it only examines proposals to amend primary legislation, which weren't at issue here.)

Finally, while Brownlee's mistaken decision on this matter has been caught by the courts, we might want to be careful about how far we take this as an effctive check. Running this judicial review case will have cost the applicants into the six-figures ... some of which (but not all) the taxpayer will now have to cover. I suspect there's not many who have been afected by Brownlee's various decisions under the Act that could afford to follow this route.