The law of necessity

To fix up the aftermath of Canterbury's earthquake, Parliament is going to give the Government almost complete control over our laws. That's maybe not such a good idea.

At the risk of voicing a commonplace sentiment, Canterbury's earthquake and its aftermath was A Bad Thing to have happen. Furthermore, the response to date of government both local and central has been admirable. The damage to both physical infrastructure and people's lives demands the best efforts of our leaders and bureaucratic agencies. In fact, if government can't work quickly and effectively to fix up this mess, then its basic legitimacy comes into question - just as it did in the USA following Hurricane Katrina.

Yet even so, the Canterbury Earthquake Response and Recovery Bill rushed through the House and into law in but a single day gives me a case of the screaming collywobbles.

There's not that much wrong with the motivation behind it. It is intended "to ensure that the Government has adequate statutory power to assist with the response to the Canterbury earthquake." Gerry Brownlee explains the need for the legislation thus:

"The building, local government and resource management acts are not designed for the special circumstances Canterbury faces. We don't want recovery work being slowed or stopped by filling out paper work."

Well, amen to that. I don't think that anyone outside of Terry Gilliam's Ministry of Information would believe filing a properly completed form should rank above having a family quickly move back into their home, or getting a shattered sewer main fixed. So if some provisions of a few Acts need speedy tweaking to achieve this end, then needs must.

But that isn't all the legislation proposes to do. Rather, as introduced, it 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.

I'm exaggerating things, of course. But only a bit. Here's what the Bill says.

Clause 3 sets out the purpose of the proposed legislation, which is pretty broad. Basically, it is intended to let the executive branch of government change statutes so as to expeditiously fix up the aftermath of the Canterbury earthquake.

Clause 6 then provides the executive that power. In effect, it is a doozy of a Henry XIIIth clause - it allows the Governor-General, on the advice of the relevant Minister, to make Orders in Council to alter the effect of almost any piece of legislation on New Zealand's statute books.

This is a pretty exceptional set of powers. Normally, only Parliament can undo or change a statute, in keeping with our constitution's basic precepts of parliamentary sovereignty. Parliament can, of course, decide to give over that lawmaking power to the executive (or any other institution) if it really, really wants to. Being a sovereign lawmaking institution means having the right to delegate your power to others. But Parliament really should do so only rarely and in very limited situations - after all, we elect MPs to act as our highest lawmakers, not to decide it would be more convenient just to let someone else do the job.

This legislation comes close to doing just this. It doesn't simply identfy a few discrete bits of a select number of statutes that the executive can tinker with if needed to expedite the rebuilding process. Instead, only a small handful of statutes would specifically be excluded from a general power to make speedy amendments where thought necessary by the Government. One of the Acts not initially excluded is the Crimes Act - hence my hypothetical above about the law being changed so that the Police are permitted to shoot looters.

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. Older readers might remember that enactment as being the basis for the 1951 Waterfront Emergency Regulations - not the finest hour for New Zealand's legal system.

What is more, clause 6(3) states; "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." This privative clause is meant to stop the judiciary second guessing a Minister's reasons for thinking a piece of legislation needs to be altered, as well as the decision-making process the Minister goes through before making any recommendation. Basically, it's meant to stop protracted court action from delaying what a Minister thinks needs quickly done by alleging that the Minister didn't act properly in coming to that conclusion.

This isn't a complete ousting of the Courts' review function, however. After all, Orders in Council are formally made by the Governor-General, so a court can always review whether the final instrument is lawful irrespective of the basis of the Minister's advice to make it. So, any Order in Council that is ultra vires the purpose of the proposed legislation would still be open to judicial invalidation.

But there's another ground that courts usually could use to find an Order in Council unlawful that has been foreclosed. According to clause 7(5), an Order can't be declared invalid just because it is inconsistent with a provision in a primary enactment. Normally, a competing primary enactment would take precedence over an Order in Council, on the grounds (going back to the Bill of Rights 1689) that the executive branch may not override the will of Parliament. What this provision would do is reverse that order of precedence, by making Orders in Council under this Bill a superior form of law to any other provision passed by Parliament (and not just the provision the Order is altering).

Consequently, there is some pretty significant constitutional redecorating going on in this Bill. But least I be accused of unbalanced scaremongering in this analysis, a few concessions.

(Actually, an initial admission - as noted above, I'm working off the original Bill introduced into the House. Some aspects of this may have been changed during the course of MP's debates and deliberations. But this report makes me suspect that it passed much as intially proposed. Update: I now see that the Bill emerged virtually untouched from the parliamentary debates.)

For one thing, the powers in the legislation are not intended to be permanent. It expires, along with any Order in Council made under it, on 1 April 2012. So we're taking about an 18 month operating window here.

For another, Parliament will retain oversight of any Orders in Council made under this Bill through the Regulations Review Committee and the Regulations (Disallowance) Act. That's not an insignificant matter - but it also isn't a sure-fire solution to any potential problems, either.

And finally, I don't believe for a moment that Gerry Brownlie intends giving the police power to shoot looters on sight. Nor do I think, even if he personally wanted to do so, he'd be able to get away with such a move as a political matter. The most significant check on the use of the powers in this legislation will be the allegation that they have been abused - no government wants to wear the mantle of taking advantage of the plight of earthquake victims for nefarious ends.

But all that said, it 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 Brownlie (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.

Which brings me to my final comment. In New Zealand, we talk a lot about the importance of "the Rule of Law". This admittedly hazy concept has at its core the idea that legal rules and processes should constrain official action and operate as an independent check on governmental decision making. That function may get in the way of "things getting done", but that's because the alternative - absolute freedom for government to act as it best sees fit - usually is somewhat worse in its consequences.

Rather worryingly, however, it seems that we have a tendency in this country
to abandon our lip service to the value of the Rule of Law pretty quickly when it starts to get a bit inconvenient. Mathew Palmer has some interesting thoughts on why this might be. I'll take the liberty of concluding with them:

"In my view the rule of law, supported by the principle of judicial independence, is and should be a cornerstone of New Zealand’s constitution. In terms of my formulation of the notion, it is a key constitutional instrument by which the coercive powers of the state can be contained. But I sound a word of warning to the legal establishment. I am not confident that New Zealanders currently understand the rule of law or, in a crunch, would necessarily stand by it as a fundamental constitutional norm. The other three constitutional norms I characterise as fundamental are each reinforced by a salient dimension of New
Zealand constitutional culture: representative democracy by egalitarianism; parliamentary sovereignty by authoritarianism; and an evolving unwritten constitution by pragmatism. The rule of law and judicial independence is not reinforced by a New Zealand cultural value. Neither is this surprising given its lack of academic and legal articulation. Without academic and judicial clarification of the meaning and importance of the concept of the rule of law and judicial independence, and some concrete event or debate that generates public appreciation and regard for it, I believe the rule of law is a vulnerable constitutional norm in New Zealand."