On the draconian Christchurch Earthquake legislationSeptember 15th, 2010
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.