Scoop Election 08: edited by Gordon Campbell

On the draconian Christchurch Earthquake legislation

September 15th, 2010

gerry brownlee, henry viii, holbein, christchurch earthquake recovery and reconstruction act

Come back Frank Bainimarama, all is forgiven. As of last night, New Zealand has surrendered the moral high ground from which to could denounce the dictator of Fiji, who – as such rulers tend to do – also sees his powers as being necessary for the greater good.

Via the Canterbury Earthquake Response and Recovery Act, all parties in Parliament have voted to put Canterbury – and the rest of the country – under the dictatorial rule of Gerry Brownlee, the Minister for Canterbury Earthquake Recovery, from now until 1 April 2012.

Brownlee’s ‘recommendations’ as section 6 (3) of the Act calls them, “may not be challenged, reviewed, quashed, or called into question in any court.” The only things Brownlee cannot over-ride at the flick of his hand are habeas corpus, the New Zealand Bill of Rights, our right to vote, and the 1688 Bill of Rights. The Human Rights Act has been left off that shortlist.

The main restraint (such at is) contained in the Bill is in section 6 (2) which requires the Minister to “take into account the purpose of this Act.” a proviso which would still allow almost anything to be rationalised. It is not as if one seriously expects Brownlee to don jackboots and run riot – but until 2012, he has been given the license to do anything, anywhere, in the name of rescuing Canterbury from the effects of the quake. Just how sweeping those powers are has been tabulated on No Right Turn’s site, as follows, Brownlee can:

* repeal Schedule 4 of the Crown Minerals Act;
* ban unions;
* strip anyone he likes of citizenship. Or, for that matter, grant it;
*make murder, rape, and bribery legal;
* overturn the results of the SuperCity election;
* declare the Treaty a “simple nullity” and sack the Waitangi Tribunal;
* legalise torture, or medical experimentation on pensioners;
* ban booze and legalise marijuana;
* declare himself immune from the OIA (which given his performance, I’m sure he’d love to);
* vest the foreshore and seabed now and forevermore in Paul Holmes;
* remove income tax on the rich;
* overturn the nuclear-free legislation;
* repeal the ETS, or exempt anyone he wants from it;
* legalise discrimination against gays or Catholics;
*grant permission for the Central Plains Water Project.

Obviously, such sweeping powers shouldn’t be conferred on anyone. Canterbury’s needs do not require such legislation to be passed, and without any prospect of review until 2012 – not when such an avowedly narrow purpose is being served.

How might those powers actually be exercised? Quite possibly, when and if a clash arises between developers on one hand, and those seeking to preserve Canterbury’s heritage buildings on the other. Given the likely costs involved, the question becomes – save it or bowl it? Well, when it comes down to issuing consents to knock down buildings or put up new ones – and the weighing of the relative costs, benefits and design options involved – those vast over-ride powers have now been given to the Minister, and to the recovery commission that includes (among other notables) the mayors of Christchurch, Selwyn and Waimakariri and one of the government’s appointed cronies to Environment Canterbury. The right of public input or legal challenge to the decisions being made by these august persons is non-existent.

This is deeply ironic given that, prior to the earthquake, one of the factors that put current mayor Bob Parker 20 points behind in the polls in the mayoral race, was over his Council’s past dealings with the developer David Henderson, Briefly, the furore involved the purchase – and the purchase price – of certain buildings around Christchurch, in a deal that Parker has since defended as being in line with an integrated development plan for the city. Many people in Christchurch saw it differently. Such decisions – easily capable now of being put under the tent of earthquake recovery – will in future be virtually immune to challenge.

The purpose clauses of the Act give some clue as to how this may play out..
They enable “the relaxation or suspension of provisions in enactments that may divert resources away from the effort to efficiently respond to the damage caused by the Canterbury earthquake, minimise further damage; or may not be reasonably capable of being complied with, or complied with fully, owing to the circumstances resulting from the Canterbury earthquake.”

Note those words: “efficiency” and “may not reasonably be complied with, or complied with fully.” They go to the heart of whether or not costs related say, to strengthening and saving a building (or demolishing it) are pursued – reasonably, and with regard to economic efficiency. To repeat: a ministerial decree will resolve the matter, without any ability for recourse to the courts.

For a time yesterday, the Greens MP Kennedy Graham sought to put some checks and balances in place, without jeopardizing Christchurch’s speedy recovery. These included :

* A six month sunset clause with the option to extend the Bill for another 6 month period (instead of April 2012).

* A requirement that Orders in Council are made public within 24 hours and tabled in the House on the next sitting day.

* Confining the ambit of the Bill’s override powers to a list of identified Acts only.

In the end, all that was won was a concession to make the decision process open to Official Information Act inquiries.

Eventually, every political party in Parliament agreed to vote for this flawed legislation, lest they seem opposed to Cantabrians and to the recovery process. For a region that has already lost its local democratic voice with the scrapping of the elected Environment Canterbury, this latest development puts them in a very vulnerable space, constitutionally speaking – for a couple of years to come.

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    1. 8 Responses to “On the draconian Christchurch Earthquake legislation”

    2. By Biz Smyth on Sep 16, 2010 | Reply

      Thanks for this Gordon. Being a Christchurch citizen and still in siege mentality, one takes ones eye off the larger picture and hardly notices that such acts have been passed! Down here it seems like some surreal sitcom is taking shape. John Key swans into town occasionally, followed by his minion Bob Parker. They are the golden boys who everyone wants to take home to meet their shell shocked Mother. Jim Anderton meanwhile, is the grumpy grand dad in the background that no-body listens to because he’s just jealous of their fame. That just leaves a gaping hole for the ‘staunch but sensible’ dictaator/ brother, Gerry, who tells us all to pull ourselves together and its just tough luck if we want to pursue some fanciful course of action, because the time has changed and he’s he’s in charge. (There goes his constituency work).

    3. By Anon on Sep 16, 2010 | Reply

      People are really misunderstanding this act.

      For starters, New Zealand has always been a democractic dictatorship in some aspects. You vote for the party you want in, then you sit back and enjoy the ride.

      John Locke had a lovely quote “the people only regard themselves as free” which is particularly true of New Zealand. As soon as the voting is over we have no real power.

      Secondly, the wide sweeping powers that everyone is complaining this act gives, particular rights to ‘legalise’ murder and other such things are completely unfounded. While on first reading of the act it may appear these rights are being granted, when tested, the act is probably only likely to apply to acts similar to the ones listed in section six. This, is a matter of legal statutory interpretation and it’s principals rather than the ‘plain wording’ of the act. So modifications to the Crimes Act, or the creation of entirely new acts is highly unlikely.

      Also, there are basic principals of legality, where a law, lets say to ‘kill all blue eyed children’, cannot ever be lawful in itself, because it is impossible for the population to follow. Medical Experimentation of pensioners would probably fall under this ambit.

      This is all just fear mongering…

    4. By Matt on Sep 16, 2010 | Reply

      Anon, there’s also been the check on getting such legislation passed. The infamous “Termination of Blue-Eyed Babies Bill” would never get voted through the House, and even if it did the Governor General has (at least in theory) power of veto. Now, however, Gerry actually *can* do all of the things listed at NRT without any further recourse to Parliament. The check on his power was the reading and voting on the Bill, and that hurdle was practically two-dimensional for all the impact it had.
      Even if the courts decide that they *do* have the power to review the outcomes (if not the processes) of his orders-in-council it’s still too late to recover from things like relaxing the very building codes that left so many Christchurch residents alive, or allowing massive development with no check on water (mis)use. Those things, once done, are very, very hard to undo.

      The worry is not the huge, evil things that *could* be done, it’s the “innocuous”, “harmless” things that almost certainly *will* be done, like tinkering with building codes to make it cheaper to build replacement houses (in the process rendering them incapable of withstanding more than a stiff southerly) or allowing developers to ignore accessibility requirements (goodbye, wheelchair ramps and wide doorways) because that would introduce extra cost into the construction of new commercial premises.
      Cantabrians have already been stripped of their protection from farmers who want to pollute waterways with impunity, and now the whole country’s been put in the thrall of a man who considers conservation status to be an impediment to plundering natural riches. Do you feel safer?

    5. By The Albatross on Sep 17, 2010 | Reply

      Hmmmmm – me thinks the author of this article is spot on. One would hope it was a case of exageration but as history tells us, this will not be the case.
      People enter into the political arena for one reason and one reason only, that is that they think they know best for all. It matters not if they are socialist, communist, green, black yellow or slightly opaque.
      The very fact that Key, Brownlee and fellow cronies are unable to see the natural extension of this Act shows they are complicit in it’s abuse, which will happen, as it always does.
      I do laugh though – is this really the death of democracy or was it never alive?

    6. By Joe Blow on Sep 17, 2010 | Reply

      Biz Smyth and Matt said it all.

      @ Anon: You sound like you’ve been studying too hard for Laws 101 this semester. You should take a break!

      Gordon is just pointing out the possibilities for effect and to demonstrate how truly absurd this legislation is. The guts of the matter is that Brownlee has been given all powers necessary to do what he likes to Christchurch without any checks, balances or democratic input in a moment of Parliamentary weakness and he doesn’t give a fig about sustainability, historic heritage and let’s be frank, it doesn’t look like he’s got much in the way of aesthetic sense either!

      God help us!

    7. By Dylan on Oct 5, 2010 | Reply

      The Bill/Act is just the latest of course, in a list of tiny little giggly attacks on the power of the elctors. Forget the ECan issue – look at the supercity legislation. Look at the Search and Servailance Bill. Look at the Rugby World Cup legislation for heavens sake!

      In other countries the mere suggestion of this sort of rubbish brings them onto the streets. And yet the NZ public, in the manner of a brain dead slug, stumbles along with drool a-flowing. Distantly we all hear the mantra “time for a change …”

      I for one will laugh with joy when historic buildings fall to make room for safer, more ‘prifitable’ structures. I’ll laugh when suddenly it is found that, with the cost to the council too great to repair the water/sewer/roads(in spite of the fund we all pay for through our insurance for just this type of event) that a PPP (or worse) is the ‘best’ solution. Quite frankly a good slap around the head is what NZ needs to bring it into the real world.

    8. By David on Nov 21, 2010 | Reply

      Sometimes Draconian legislation is required to save peoples lives.
      Some info about rebuilding safe chimneys people need to be aware of. Insurance Company rebuilding chimneys after the last shake puts lives in danger.

      Chimneys falling down in earthquakes are old news but ironically it is the Insurance companies that fixed the chimneys last time that caused so much damage to our Classic and Heritage homes in the current quake. Instead of rebuilding heritage and classic home chimneys with lightweight replica chimneys after the Inangahua Earthquake of 1968, well meaning tradesmen re-installed heavyweight masonry tops to those that had toppled, presumably paid for by Insurance companies. These masonry tops were cemented together, where before they had used simple and weak lime mortar. Instead of rattling to individual bricks as they had in the past, staying outside the building envelope, these massive blocks tilted and fell as one giant battering ram straight through people’s homes. It is simply miraculous that people were not killed. In two story buildings they fell through roof, ceiling and then continued through the next floor and ceiling to imbed themselves up to a foot deep in the soil beneath the wooden floor of the bottom story. The original lime mortared chimneystack in most cases stayed where it was. Thus the insurance companies have unintentionally caused some of the worst damage seen to our classic and heritage homes here in Christchurch. Are they learning from their mistakes? No. Again, here in Christchurch, there are well meaning people, reinstating heavy masonry chimneys on old un-reinforced lime mortared together chimney stacks. Two at least on large two story Heritage houses in the central city. These will fall in the next earthquake and will kill if any one is in the wrong place, under them. These are illegal under the Building Act, even though currently, in non-heritage houses, they do not need a building permit for reinstatement. Not only are the bricks themselves unable to be reused as they are not engineered, fit for use, but also the structure makes people unsafe. Tradespeople risk prosecution. If chimneys need to be reinstated because they are part of the Heritage landscape, amenity value of the city, or a metal flue tube would diminish the classic look and thus heritage and capital value of the home, the chimneys should be reinstated using a lightweight heritage replica chimney of the same or similar external design. It will need to be engineered as an acceptable solution and conform to the modern relevant building code requirements, NZS3604 or similar. This will mean that chimneys can withstand the next Earthquake without costing their owners and their Insurance companies the huge payouts for damage and possibly death. Let us all learn from our mistakes.
      http://www.HeritageReplicaChimney.co.nz has a solution.

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