Parliament has made a “mistake” by passing the Earthquake Response and Recovery Act 2010, transferring its lawmaking power to the hands of just three ministers.Twenty-seven legal scholars from New Zealand and around the world have come togethe
Parliament has made a “mistake” by passing the Earthquake Response and Recovery Act 2010, transferring its lawmaking power to the hands of just three ministers.
Twenty-seven legal scholars from New Zealand and around the world have come together to urge the government to amend the act, which they say, in its current form “lacks constitutional safeguards” and “sets dangerous precedents.”
The legislation was unanimously passed in just a single day following the disaster.
University of Otago, faculty of law, associate professor Andrew Geddis, who is also the group’s spokesman, told the National Business Review as it happened so quickly, it was unclear what powers exactly will be needed in overcoming the damage caused by the 7.1 magnitude earthquake.
“So rather than miss something the statute was drafted very very broadly to include virtually all potentially needed powers with the trust that they wouldn’t be misused.”
While the act has some “broadly defined” restrictions on the powers granted, it allows individual government ministers – Bill English, Nick Smith and Gerry Brownlee – through Orders in Council, change virtually every part of New Zealand’s statute book in order to achieve very broadly defined ends, said Mr Geddis.
Under the legislation courts are forbidden from examining the reasons a minister has for thinking an Order in Council is needed, as well as the process followed in reaching that decision; and persons acting under the authority of an Order in Council have protection from legal liability, with no right to compensation should their actions cause harm to another person.
“What they are trying to do is to say ‘we’re going to make it easy to do things quickly but … the consequences are not our problem’.”
Mr Geddis said abandoning established constitutional values and principles to remove any inconvenient legal roadblock was a dangerous and misguided step.
“The main concerns, that the group as a whole has, are that it gives a great deal of power to individual government ministers, who change pieces of New Zealand statute books very quickly to try to bring about a very broad purpose with very few formal legal control on how that power can be used.
“That’s not the way you should control public power.”
Mr Geddis said the act should have tight restrictions on the enactments a minister may change through an Order in Council and clear grounds that justify any such change, “rather than the minister is doing it because the minster thinks its needed”.
Also, these grounds need to be open to review by the judiciary, to ensure that they really are met in any particular case.
The one and only other legislation of this kind was put in place following the Napier earthquake in 1931. But while there was some power given to change a list of statute, it wasn’t as broadly applied, said Mr Geddis.
Similarly, the Epidemic Preparedness Act 2006, which is to deal with disease outbreaks that can kill thousands of people, allows “much less” power than the Earthquake Response and Recovery Act, he said.
