Norman Russel William: Canterbury Earthquake Response and Recovery Bill — Procedure First Reading Second Reading 
Norman Russel William: Canterbury Earthquake Response and Recovery Bill — Procedure First Reading Second Reading 
[Volume:666;Page:13926] 
Dr RUSSEL NORMAN (Co-Leader—Green) 
: 
 I rise to speak on behalf of the Green Party on the Canterbury Earthquake Response and Recovery Bill. This is extraordinary legislation in an extraordinary time but the Greens have some concerns about it. 
It is worth briefly recapping the powers that the bill gives the Government. Effectively it gives the Government the powers to suspend change extend or modify in any way every piece of legislation bar five. The Government can effectively change by Order in Council any legislation except for the five constitutional Acts: the Bill of Rights 1688 the Constitution Act the Electoral Act the Judicature Amendment Act and the New Zealand Bill of Rights Act. Aside from those five Acts every other statute can be changed by Order in Council. The bill would empower Ministers to go to the Governor-General seeking to amend quash change modify or extend any provision of any enactment simply by Order in Council. 
We have seldom seen legislation that gives such extensive powers and effectively hands over lawmaking to the executive part of Government. That is what this bill does. Even though in this bill a list is identified of 22 Acts that can be changed by Government by Order in Council the bill also goes on to say that it is not limited to those 22 Acts. In fact the executive can by Order in Council amend any Act except for the five constitutional Acts. It is extraordinary legislation. 
The Greens are very keen to get on with the recovery work but we want it to be done well. We have a number of suggestions as to how the Canterbury Earthquake Response and Recovery Bill can be amended to make it much more proportionate to the situation we are in and give Cantabrians more of an opportunity to be involved in it. The first amendment that I wish to identify which the Greens will be moving in the Committee stage is that the Canterbury Earthquake Recovery Commission which this bill establishes will comprise a majority of elected Cantabrians. This bill proposes a seven-person commission with four of those commissioners appointed by central government. It seems to me that Cantabrians should lead the recovery process and that there should be a majority of elected Cantabrians on the Canterbury Earthquake Recovery Commission. That seems a very basic requirement. The Greens will move an amendment to get a further two elected councillors on to the commission so that there is a majority of elected Cantabrians on the commission. 
I asked the Prime Minister a question in the House last week about exactly that issue: whether the people of Canterbury would lead the recovery. He said they would yet when we look at the make-up of the commission we find that four out of seven commissioners are to be appointed by central government. We will move an amendment to make sure Cantabrians themselves lead the process. 
The second amendment we will move will limit the lifespan of this legislation to 6 months. We think the extraordinary powers that this bill gives should be kept on a short leash. We think it should apply for 6 months only. The Government will be able to come back after 6 months and move a motion in the House to get a further 6-month extension. That seems reasonable. Given the extraordinary powers in this bill it seems only right that Parliament keep the executive on a short leash. We say there should be a sunset clause after 6 months when the Government can come back to this House and seek a further extension for another 6 months via a simple notice of motion. That way the executive will be kept on a pretty short leash in its use of these incredible powers. 
The third amendment we will move relates to the fact that it seems to us that the Government should be given the power to change through Order in Council only those Acts that are identified in the bill. Under the current bill the Government will have the power to amend any statute on the books. We think it should be limited solely to those Acts that are identified so people know which Acts the Government can change by fiat. Law by fiat is effectively what this bill provides for and the people of New Zealand have a right to know which bills will be amended by the executive. 
Furthermore we think the Local Government Official Information and Meetings Act should not be in that list. The people of Canterbury and New Zealand have a right to know what their local bodies get up to so the Government should not be able to amend the Local Government Official Information and Meetings Act through those Orders in Council. We think it is very important that there is transparency so that Act should not be on the list. 
The fourth amendment we will move is to make sure that the Canterbury Earthquake Recovery Commission is subject to Official Information Act requests. Currently it is unclear; there is no statement that the commission is subject to the Official Information Act or the Local Government Official Information and Meetings Act and we think it should be made clear that the commission is subject to Official Information Act proceedings. If there is no transparency on that process it will be hard for ordinary New Zealanders to know what is going on let alone Parliament or anyone else. 
The fifth amendment we will move relates to the publishing and tabling of Orders in Council. Effectively those Orders in Council will be legislating by fiat; the executive will have the power to legislate by fiat on any statute except for the five constitutional statutes. It seems critical to us that when Orders in Council are made they are published immediately. They should be put up on a Government website so that people know what the law of the land is. It is very hard to know the law of the land when there is no way to find it out. We think that as soon as an Order in Council is passed by the Government it should be published on a Government website within 24 hours so that people will know the law of the land. It is hard to follow the law if it is not published somewhere. We think that as Orders in Council are effectively legislating by fiat they should be immediately available to the people of New Zealand and Canterbury so that they can see what the law is. 
Furthermore we think those Orders in Council should be tabled on the next sitting day. Under the Regulations (Disallowance) Act they have to be tabled within 16 sitting days which is a very long period—it is a number of months in fact. It seems to us that Orders in Council should be tabled on the very next sitting day so that Parliament can see them. It seems a basic requirement that Orders in Council should be given to Parliament on its next sitting day. That should not be any trouble given that the Government must know what is in those Orders in Council. 
The sixth amendment the Greens will move relates to clause 6(3) which basically states that Government decision-making will not be able to be reviewed by any court. That is a pretty concerning provision. It is fundamental to our constitutional arrangement that the courts can review the Government’s decision-making processes. We understand that this is a time when we need to make decisions quickly and we accept that proviso. However completely throwing out the ability of the courts to have any kind of review of Government decision-making processes seems to us to be a step too far. It is part of the balance of power that the courts have the ability to look at what the Government has done. The bill currently states in clause 6(3): “The recommendation of the relevant Minister”—that is a recommendation to the Governor-General to have an Order in Council—“may not be challenged reviewed quashed or called into question in any court.” That is a pretty extraordinary provision. As an amendment we are suggesting we insert into that subclause after the words “called into question in court” the words “unless a High Court judge determines that fundamental principles of justice will be compromised by not allowing a case to be heard.” 
We think it is critical that there be some kind of judicial oversight of the executive. If we are to give the executive these extraordinary powers to effectively legislate by fiat there must be at least some process whereby the courts can review it if a High Court judge is of the view that fundamental principles of justice could be compromised by not allowing a case to be heard. There has to be some kind of mechanism to ensure that the courts have some ability to review the executive if it is acting in a way that is fundamentally against the principles of justice. 
The Green Party believes the Government has good intentions in pushing this legislation. We understand where it is coming from and what it is trying to do. However we think it is a step too far and that there are a number of ways this legislation could be improved so that it gets the support of the entire Parliament and we can all stand behind it protecting our constitution while rebuilding Christchurch and Canterbury.