Chauvel Charles: Canterbury Earthquake Recovery Bill — Second Reading In Committee 
Chauvel Charles: Canterbury Earthquake Recovery Bill — Second Reading In Committee 
[Volume:671;Page:18172] 
CHARLES CHAUVEL (Labour) 
: 
 In reply to that last aside from the Minister I tell members that we have just had the extraordinary sight of the Minister in the chair the Minister for Canterbury Earthquake Recovery during the only time this legislation will have any effective scrutiny from the Committee—because his own amendments will not be ready for another 45 minutes partway through the debate or in fact toward the conclusion of the debate—reading through amendments that the Opposition has put forward to try to improve this legislation and then rejecting them all. Well the Minister needs to reflect on the adequacy of the process here. 
This legislation will allow the Minister to overturn any planning decision revoke or amend any resource consent force councils to allow any resource consent compulsorily acquire property without any public interest test demolish any house even if it is undamaged and dissolve elected bodies if they fail to do what he says. So this Opposition makes no apology for wanting to make sure that the legislation is properly scrutinised and I will not have it said by any member in this Parliament that it is unpatriotic or irresponsible to do so. Our job—the thing that the people pay us to do—is to work out whether the laws that this House is passing are properly made. It is not an inappropriate exercise of anyone’s time in this Parliament to make sure that that is done and this current process does not comply on any view with that test. 
I am the chair of the Regulations Review Committee. We are the committee that has had the job of scrutinising the Orders in Council that were made under the 2010 emergency legislation and I will acknowledge a point that Amy Adams made. It is true that the Orders in Council that have been made to date recommended by the officials and by the Minister in the chair have been moderate. That is an appropriate thing to put on the record. There has not been an attempt to date to overreach the powers that the Minister has had conferred on him by this Parliament. I will put that on record happily and freely. 
I will also put on record that the Minister did not have to agree to a select committee process. He could have just rammed all this through under urgency. Thank goodness he did not because I think that all members on that committee would agree that we have managed to make some improvements to the legislation. It is a good thing that we have had that process. I wish we were not now at the point of a logjam where we are 40 minutes away from even seeing the detail of further amendments that are to be proposed by the Government but I accept that we have had a summary of those amendments. That is what I will take the time to respond to in relation to a couple of detailed points. 
First of all I come to clause 70 and this concerns a matter that was pointed to by the Legislation Advisory Committee. The test for the making of the Orders in Council is not that the orders are necessary. It is not that we can suspend the law extend the law or do away with the provisions of the law because the orders are necessary for the purposes of dealing with the emergency; under this clause the orders can be expedient. Parliament is saying to the executive: “We are going to do away with our right to make laws. We are going to delegate that to you if you think it is a nice idea.” That is what—in layman’s terms—“expedient” means. 
That cannot be a wise thing to do. The Legislation Advisory Committee cautions against it and I add my voice to its caution. I would urge the Minister even though that is the test in the existing legislation and even though he has not abused it—and I have put that on record—to tell us why we have the “expedient” test there. Why do we not only do away with Parliament’s right to legislate exclusively and confer it on him but then say that he can use it whenever he thinks it is “expedient”? That is unwise; it is too broad. We will regret this precedent in the future. 
The second point relates to clause 73(2). This relates to a submission made by Professor Joseph. The Minister can make recommendations about what an Order in Council should say and the legislation states that no one can take a judicial review of that recommendation no matter how wrong it might be no matter whether it is based on incorrect considerations and no matter how unwise it might be. I will say two things about that and again they echo concerns from the Legislation Advisory Committee. 
First of all no one will bother to judicially review a recommendation. People will wait until the Order in Council is made and then judicially review that. So the power is unnecessary. It is also provocative—that is the second thing. The courts are jealous of their powers and they are jealous of those powers for good reason. The powers exist as a bulwark against tyranny and encroachment on people’s liberties by the executive by the legislature and by other parts of Government. Why should we provoke the courts by telling them they cannot even review a recommendation that the Minister makes? The provision is foolish; it should be deleted. 
Linked to this recommendation from the Legislation Advisory Committee is the matter that once a regulation is made there is an attempt to also put it beyond judicial review. This absolutely disturbs a fundamental principle that we have in our laws—that any activity by the executive is able to be looked at by the courts in order to consider whether that action is lawful. The courts cannot review statutes but they can review regulations and Orders in Council. There is a very very good reason for that. Orders in Council are made without parliamentary scrutiny—or without much parliamentary scrutiny—and certainly not with scrutiny beforehand. A fundamental check and balance in our system is that the courts should be able to look at the legality of executive action. 
Again two things need to be said here. First of all I ask why we are seeking to oust that jurisdiction. If we are confident that the Minister will use his powers wisely then why do we not let the courts have the option of agreeing or not? Secondly I ask why we are using the clumsy language we see in this bill. There is an attempt to oust the jurisdiction of the court but it is being done badly. It is ineffective. The worry I have here is that we have a line of cases already in this country enunciated mainly through statements from the late Lord Cooke of Thorndon a former President of our Court of Appeal and a former law lord that if this Parliament seeks to put in place revolutionary arrangements about our constitution then the courts will have to think carefully about enforcing those arrangements. If they agree for example that executive action should be put beyond the scrutiny of the courts or if they agree that Parliament should just delegate its lawmaking power to Ministers then the courts would have to think carefully in the words of Lord Cooke about whether they were acquiescing pro tanto to a revolution. I ask whether we really want to provoke the courts in this way particularly with badly drafted privative clauses. I say no because there is no need for it. It is provocative and the provision should come out of the legislation. 
The next point I will make relates to clause 29 and also to clause 30 which echo a concern from the New Zealand Law Society. It relates to information privacy principles and the way that information will be shared between agencies. The bill will basically require the chief executive of the Canterbury Earthquake Recovery Authority to consider applicable privacy principles but not to protect privacy interests. This again is going too far. The Privacy Commissioner has already relaxed the information privacy principles in the way that they apply to Canterbury during the emergency. That is the proper way to do it. The expert who is charged with administering the Privacy Act should be the expert who decides whether a relaxation is justified in a certain time and a certain place and that is what she has done. This matter came to the Regulations Review Committee; we said that yes that is a practical thing to do in the circumstances and we have supported it. There is no need also to let the chief executive of the Canterbury Earthquake Recovery Authority off the hook in terms of the privacy of individual citizens. I ask why that person and by extension the Minister should be able to ignore all our privacy laws in respect of the people of Canterbury and the current emergency without any regard for the expert opinion of the Privacy Commissioner herself. 
The next point I will make relates to clause 83. This clause would retrospectively validate any action taken in respect of the emergency. Again there is just no need for this sort of broad provision. At the moment under the state of emergency that exists there is wide validation of actions taken on an official basis under the Civil Defence Emergency Management Act so there is no need to duplicate—Mr Chairman I am aware that you gave the Minister in the chair the Minister for Canterbury Earthquake Recovery three calls. I have just one more point and I would ask your indulgence to make it. 
The CHAIRPERSON (Eric Roy) 
: The member makes it hard. The member has now had exactly the same number of calls that the Minister has had and we have not yet had Mr Locke who is seeking the call. But I will give the member the call in the spirit of generosity. 
CHARLES CHAUVEL 
: I applaud your wisdom as always Mr Chairperson. I want to make only two more points; one relates to finishing my earlier point. I say that there is no need for retrospective validation. The power exists already so I ask why there is this headlong rush to do things that will create bad precedent for the future. It is just inexplicable. The power is not necessary and it should not be given by this Parliament. 
The final point relates to appeal rights in respect of clauses 67 and 68. Clause 67 provides that there is to be no right of appeal on decisions of the Minister except as provided for by the legislation. Clause 68 then goes on to provide a very circumscribed way in which appeals are to go through the court system. They are to go to the High Court and then—snap snap snap—with time limits put in place by the statute they are to go to the Court of Appeal. 
Again I have two things to say about that. First of all in respect of a lot of these matters the Environment Court is the expert court that should be hearing these issues not the High Court. Ruth Dyson has put forward an amendment that would provide for that to occur. The Environment Court could sit with expert assistance from a valuer for example if it were deciding issues of compensation. Why should we not let the expert court do its job? It could probably do it more quickly than the High Court could. I know a little bit about the staffing of the High Court in Christchurch at the moment and the personnel in the court. Probably the Environment Court could do it quickly if that is what we are concerned about; the High Court is I think in a more difficult position. But then we have the right of appeal to the Court of Appeal anyway so there is no need for concern about the law not being applied in anything other than an orthodox way. 
The final point relates to the restriction that the bill would put on appeal rights. There is no need for this restriction. Again Parliament should not be interfering with the way that the rules of court are set out. If we want to tell people not to appeal vexatiously and prolong matters through litigation then we should simply rely on the powers of the courts that exist already to do that. We could bolster those powers through this legislation itself but there is no need to blot out appeal rights in a way that could actually negate many people’s rights to go on and have legal matters tested because there are complex legal matters in this bill. I will be very disappointed if clause 68 survives in its current form.