The Regulations Review Committee thinks the Government is using the Canterbury Earthquake Response and Recovery Act appropriately. This is good news.

Following the Canterbury Earthquake, Parliament unanimously enacted a piece of legislation called the Canterbury Earthquake Response and Recovery Act 2010 (Or CERRA, for short). That legislation was pretty extraordinary both in the amount of power it handed over to Ministers of the Crown and the speed with which it became law, albeit in the context of a completely extraordinary situation.

Following the CERRA's enactment, a number (27, to be precise) of public law academics issued an "Open Letter" detailing our concerns with its content. The response to our initiative was, I think it is fair to say, mixed.

Gerry Brownlee accused us of "hand wringing" and invited us to present our abstruse concerns at a seminar to the people of Bexley (as if they hadn't suffered enough already, poor souls!) Clayton Cosgrove accused us of being "latte-drinkers" - why is a person's coffee preference assumed to signify elitism, and has Clayton not visited a McCafe recently? - obsessed with constitutional niceties whilst the people of Christchurch dug sewerage out of their gardens. In short, bloody pointy-headed academics ought to stay out of the way of real-world business getting done.

The media got a bit excited about the issue for a little while, mostly because of some overheated predictions that Gerry Brownlee would use the legislation to impose a state similar to martial law. My own contribution to that discourse was: "[The CERRA] appears to give Gerry Brownlee the power to quickly authorise the Police to shoot looters on sight, if he thinks it necessary to do so. What is more, his decision to make this change to the law would be set beyond review by the courts." While such dramatic claims may have worked to pique interest in what otherwise is a fairly dry and conceptual topic, in hindsight they weren't that helpful as they over-sold the problem. Once it became clear the CERRA wasn't going to be used for such dramatic ends, interest in it dried up pretty quickly.

However, some more moderate voices of concern echoed the general line of our letter. The New Zealand Law Society wrote to the Attorney-General setting out its belief that the CERRA was an overreaction to the events in Christchurch, while its President, Jonathan Temm, reiterated that message in an interview with Kathryn Ryan. The Legislation Advisory Committee likewise raised some concerns with the Minister about the CERRA's provisions. He has responded to these missives by saying that the CERRA will be "reviewed" in due course - although without specifying any particular timeframe or means of doing so.

So, in short, our letter made a smallish splash before sinking like a stone, while the ripples it generated have dissipated pretty quickly. C'est la vie and so it goes, I guess.

But this week sees another development in the CERRA saga that is worth noting. The Regulations Review Committee has issued its interim report on the various Orders in Council made under the CERRA (you can download it in pdf format here).

This Committee is the House's way of keeping an eye on how Ministers use their regulation making powers under primary legislation. It plays an especially important role with respect to the CERRA, because of the amount of power that the House gave Ministers to alter other pieces of legislation. What is more, the Committee is chaired by a Labour Party MP - Charles Chauvel - and has 3 Labour members, 3 National members, and a Maori Party member ... with the Green Party MP Kennedy Graham joining it for this item of business. So there is no real danger of this Committee giving Ministers an easy pass over how they have used their powers under the CERRA.

So what does the Committee have to say about how the CERRA has been used in practice? Well, it's pretty happy, really. There were a few Orders in Council that raised some initial concerns, but on closer inspection the Committee found that these were justifiable and subject to appropriate controls. Consequently, it concluded:

This interim report covers those Orders in Council made under the Canterbury Earthquake Response and Recovery Act that we decided to examine because of concern about some of their provisions. We sought information about those orders from the Government agencies responsible for the orders, and were satisfied with the responses we have received so far about each of the matters raised.

There are still a couple of outstanding matters the Committee wants a little more information on, about which it will make a final report in due course, but apart from that the Government gets a clean bill of health.

This is good news. Only a bitter and cynical person would wish to see their darkest predictions that absolute power will corrupt absolutely proven true. Much better for the country as a whole to see that Ministers and their officials have used their powers responsibly and to the ends for which they were intended.

But what does the Committee's report mean for those of us who protested the CERRA's enactment in the first place? Does it prove that we were too caught up on formal niceties and were worried about things that never would happen? In short, did we get it wrong?

Well, maybe. But also maybe not.

First of all, the CERRA largely was predicated on the assumption that those empowered by it would be reasonable and good people. And so it has proven to date. However, distributing power according to this assumption is risky, and when it happens we should acknowledge those risks.

James Madison summed up this point better than I can, some 222 years ago:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

So the fact that our Ministers wear halos and wings and the CERRA powers have not been abused is great news - but it still does not mean that giving them very broad powers with only limited oversight, especially judicial oversight, is a good idea.

Second, there is an element of "what if" about this whole issue. I have no doubt that from the CERRA's very inception Ministers and officials, as well as MPs, were aware of the danger that it might be misused. However, the fact is that our letter and associated media coverage highlighted that danger and focused a degree of public attention on it.

If we did nothing more than make Ministers and officials even more conscious of their responsibilities and extra cautious about how they used their powers, then that is to the good. It may have been hand wringing, it may have been nit picking, but that's our job ... to make sure that those with power remember that there are some eyes out there watching how it is used.

So - yes, my concerns that the CERRA would be misused were wrong. But I still don't regret airing them in the way I did.

Comments (13)

by Phil Lyth on December 01, 2010
Phil Lyth

Orders in Council continue to be made  -  A Road User Charge one last week dealing with overweight heavy trucks,  and a Rating Valuation one the week before.

Gerry certainly has not stopped using CERRA, but on hte quiet. No statements on the Beehive site that I can find about the new Orders.

by Andrew Geddis on December 01, 2010
Andrew Geddis


You are right about the new measures. The two OIC's you mention are covered here. And in fairness, I don't think they are particularly problematic - the transport one simply makes sure no-one will be legally liable for operating an over-weight truck in accordance with earlier OIC exemptions, while the rating one lets the ChCh council take a bit longer doing its rating revaluations.

That said, it would be nice for the Government to keep advertising these things when they come out.

by ScottY on December 01, 2010

Andrew, your objections to CERRA were and remain entirely reasonable. There wouldn't have been many objectors who actually believed the government would use the new powers to ram through draconian or controversial new measures. The danger was in the precedent set by the law. Imagine what a government more unscrupulous than the current one might try to do with such powers.

It amused me that this was one of the reasons why many on the right opposed the legislation. Imagine what Labour might have done with such powers, they cried.

I'm not sure how much weight we should give to the opinion of the Regulations Review Committee. Labour supported the law change wholeheartedly and its people denigrated those who spoke against it. They would look like prize idiots if it turned out the law was being abused. Politicians being the creatures they are, it might be easier to just give the regulations a quick once-over-lightly review.

by Dean Knight on December 01, 2010
Dean Knight
Yes, but have you had a glance at the evidence from Depts provided to the committee? Much of it is pretty perfunctory. The Depts tend to repeat that "we thought it was a good idea" and "of course, judicial review is still available to ensure it is used for the proper purpose". I'd be interested in your take on the assurances. I still remain unconvinced... And I'm looking forward to the report on the other OICs.
by MikeM on December 01, 2010

HI Andrew.  Your link to the Regulations Review Committee report seems to be broken (page not found).  I think you meant to link here.

by Andrew Geddis on December 02, 2010
Andrew Geddis


I think that, even though Labour (indeed, all parties) voted for the CERRA, there would be political capital to be made from finding that those powers were being abused/misused/carelessly applied by the Government. Something along the lines of "we gave these powers in good faith for the good of Christchurch, but imagine how shocked - shocked! - we are to discover how terribly the Government is behaving!". So I'm pretty content that there are incentives for them not to sweep things under the carpet ... plus there is the fact that Charles Chauvel is a smart guy, and Kennedy Graham genuinely was conflicted about votind for the legislation in the first place (hence getting himself put on the Committee to oversee its use).

There may be more substance to Dean's point, that the Committee is pretty much stuck with accepting departmental assurances that all is OK. But to flip it back at him ... what particular OIC causes you to be concerned the powers are being used unappropriately?


Thanks - fixed in the text now.

by Dean Knight on December 02, 2010
Dean Knight
Andrew I've been too busy to get into a detailed analysis. But, for example, the demolition of the Manchester Courts worried me. The combined effect of the LG Act amendments and Building Act amendments (incl removal of requirement to seek confirmation of warrant) seemed to encourage rash demolition. The Council papers suggested limited information was available and that there was no real consideration of options that might have preserved the building. When the application for an interim order was made at the last minute, it was no surprise the Court declined it, as the statutory context and broad purpose made that basically inevitable.
by Justin Maloney on December 02, 2010
Justin Maloney

Nicely put Andrew. However, perhaps the point which hasn't been overtly made still remains a concern. That is CERRA set a dangerous precedent. Gerry may prove relatively trustworthy while under scrutiny, but, as you point out, not all politicians are going to be angels. If another CERRA was passed there could be less scrutiny and we all know people do tend to behave a little differently if they dont think they're being watched.

What we still need is special legislation on the books to deal with such events, something that overrides the precedent set by CERRA. I doubt such legislation will be high on the clogged agenda, but in the absence of it we can count on the fact that if a similar scaled event happened again the response would be the same.

by Ian MacKay on December 02, 2010
Ian MacKay

Thank goodness for you "eternal vigilance". As an ordinary citizen the willingness to speak up about the risk to democracy is left to the experts and all we little folk can do is applaud.

by william blake on December 02, 2010
william blake



The erosion of democracy through legislation being passed under urgency that was noted on the Law Societies web site and later aired on Catherin Ryan's morning radio show was in some ways enlarged and intensified by Chris Finlayson's amazingly arrogant response.

Ces't la vie..? que sera perhaps.



by Mark Wilson on December 05, 2010
Mark Wilson

"Was I wrong about the Cerra?"

Is the Pope a Catholic?


Mark, you know Pundit's rules. You've been told them often enough. Nobody else has a problem with the rules; on the other hand, quite a few people have a problem with you. 

'Tis but the work of a second to ban you again. This is your last warning. -- Ed.]

by al loomis on December 05, 2010
al loomis

the point of having democracy is that the administration can not award themselves dictatorial powers. nz has dodged the bullet thus far, but why not fix things so the national managers don't own a gun?

the swiss have a perfectly usable democratic constitution, why not ask them to borrow it?

by Mark Wilson on December 06, 2010
Mark Wilson

May I ask what on earth was wrong with that?

[Yes, you may. Ask away.

It's actually very simple: steer clear of the ad hominem and name-calling. Focus on the issues, and you'll find you have all the liberty in the world.

Ad hominem directed at (a) pundits, and (b) others on the thread who are actually adding value, is particularly risky for you now.

My edit above kept the gist of your comment. The several aspects of the rest added nothing.

This is our place, and despite your many objections you seem to like it, so my advice to you is, just follow our rules.]

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