Was I wrong about the CERRA?

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.