Chauvel Charles: Canterbury Earthquake Recovery Bill — In Committee Third Reading 
Chauvel Charles: Canterbury Earthquake Recovery Bill — In Committee Third Reading 
[Volume:671;Page:18234] 
CHARLES CHAUVEL (Labour) 
: 
 I will take a short call. Normally this call would be taken by my colleague Lianne Dalziel but she has asked me to say that she is unable to speak in the third reading debate as she is holding a community meeting in her electorate which is something she has been doing regularly I think since the first earthquake. The first thing then is that I convey her apologies for not being able to be in the House for the conclusion of this debate and I explain the reason for that absence. 
Other members of the Labour team have explained that on a collective basis we have decided to support the Canterbury emergency legislation. They have also made a commitment particularly those Canterbury members who will continue to work on the ground to try to make this model work. They have said that it is not the model that Labour would have chosen. We would have preferred to see evidence that the Government had taken into account best international practice in recovery. If that had been done there would have been much more emphasis on collaboration with the communities affected by the earthquake and there probably would not have been a model held so closely to the Crown by the Minister for Canterbury Earthquake Recovery. There probably would have been the continuation of some sort of Crown entity structure that allowed less direction and more community cooperation than we will see under the model we have. But it is what it is; rather than oppose it given that it is the only option from the Government on offer as it were Labour members have decided that it will be supported. As I have said the decision is that we will simply try to make what we see as a less than ideal model work on the ground. 
I said in my earlier contribution that I thought there were a number of areas where the Canterbury Earthquake Recovery Bill goes too far. It is unconstitutional in at least four or five respects and I will repeat for the House why that is so. First we have legislation that can be suspended by regulation and at a low test for that suspension. The Minister just has to think that it is expedient in order for that suspension to occur. Wars have been fought over less but here we go conferring that power merrily on the executive in 2011. 
Then there is the attempt to say to the High Court that it cannot review the exercise of the Minister’s decisions to make regulations that suspend statutes. The way in which that is done is inelegant and it is probably ineffective as experts have pointed out. Most members of the House probably do not take a huge or close interest in the way in which there is an interplay between the competing sources of power in our constitution but it is something that I do take an interest in. I am aware as I am sure other lawyers in the House are aware that there is actually fragility in the balance of power in our constitution. The judges and the courts are watching closely now that the final right of appeal sits across the road and now that this Parliament is apparently seized of a desire to surrender certain of its powers to the executive to see whether that exercise of power by this House is appropriate. Kennedy Graham said in his earlier contribution that there is no written constitution in this country. The danger that we face if we provoke the judiciary with provisions such as the one I have just spoken about is that we may run the risk that the courts will start to discover unwritten rights that they will none the less enforce against this place because they will regard us as having changed the constitution in unacceptable ways. My concern about this legislation today is that we are doing this now and that that is the risk we are running. 
If it were a necessary risk to run and if it were obvious that the Minister needed those powers—if the powers had for example been required under the September 2010 Canterbury legislation and been used time and time again for good purpose—then maybe it would be possible to be relaxed about it but that is not the case. These sorts of powers have not been required although they have existed under that earlier legislation. They have not had to be used so I ask why we risk causing a constitutional crisis by seeking to enact the sorts of powers that we are told and that I accept are very unlikely ever to be required. It is folly it is irresponsible and it may have I fear much wider consequences than most people in this House have thought about. The risks we have incurred today to the way in which it is accepted that our constitution ought to be balanced unfortunately cannot be overstated. 
There are other problems with the bill. There is no need to water down privacy rights in the way that is contemplated under clauses 29 and 30. We already have a perfectly acceptable solution to information-sharing issues which was put in place by the Privacy Commissioner the independent expert charged with responsibility for these matters. We are retrospectively validating the activity of officials when they already have validation under the Civil Defence and Emergency Management Act. That is again unnecessary and provocative and it is an overreach of our powers to do it twice. The question has to be asked about why it is being done. 
Finally the rights of citizens to have their interests declared to be of a certain nature by the courts are disturbed by clause 68. Restrictions are to be placed by this Parliament on the way in which appeals are to be carried out but I say that there is no need to interfere with the processes of the court in this way. A simple legislative direction that the court is to have regard to its inherent powers to control vexatious or unduly prolonged litigation would have been sufficient; instead the drafters have insisted on an outdated model by which to proceed. Again it is provocative and it may be constitutionally dangerous. It is no answer that these powers already exist in the 2010 law and that they have not been abused. It is wrong for Nicky Wagner Rahui Katene and others to assert that there are sufficient checks and balances—there are not. These are bad precedents; they are unconstitutional. Our arrangements are more fragile than many understand and this is as I say folly. It would have been much better just to enact the Legislation Advisory Committee’s model for emergency legislation and to have left it at that. 
There have been criticisms of the process and I believe that many of those criticisms are entirely justified. But I have also seen some very good behaviour from certain parliamentarians and I record my thanks for that behaviour because some people have actually risen above their baser instincts and behaved nobly in this process. I have seen parliamentarians taking their scrutiny job seriously and I respect those people for the way in which they have discharged their responsibilities. But a really unfortunate tone has also crept into this debate. There has been sniping there have been accusations of bad faith and there have been petty exchanges across the House that the subject of this legislation really should have rendered inappropriate. Many people say that there is nothing worse than a bad loser; I think there is and that is a bad winner. I hope that that is not a portent of things to come in the way in which this legislation will be administered because if it is then it will be a very bad thing for Canterbury and for this country.