I was pretty stunned to read that the Canterbury Earthquake Response and Recovery Act gives the Government the power to pass Orders in Council overriding or suspending all but five laws. That makes ministers, not Parliament, the sovereign power in this country. Pretty scary stuff, which I haven’t seen justified by the facts of the quake.
This constitutional stuff is not my specialty so, naturally, I went to No Right Turn to get more info on the ramifications of this Act (I’ll leave out the bit about the Enabling Act, I/S… bit too far):
Earlier tonight, in a unanimous vote, Parliament made us a dictatorship. While Parliament still exists, it is meaningless. We are now under the rule of a single tyrant: Gerry Brownlee, the Minister for Canterbury Earthquake Recovery.
Oh, not in practice, of course. But in form. The Canterbury Earthquake Response and Recovery Bill, passed unanimously less than an hour ago, gives Brownlee the power to repeal or modify practically any law on our statute book, without even having to refer to Cabinet, let alone Parliament. With the flick of a pen, Brownlee could:
- 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.
Provided he doesn’t mess with a very short list of laws (basically the Constitution and Electoral Acts, and the BORA – but not the Human Rights Act), he can do anything he wants. While officially he has to “take into account” the purpose of the bill, “take into account” means sweet fuck-all – and thanks to a Fiji clause, the courts have no jurisdiction over the resulting Orders anyway. While he is theoretically subject to the oversight of the Regulations Review Committee, that is a slow process, and he could (if he felt like it) simply remove that clause. Result: absolute, dictatorial power, at least in theory, until 1 April 2012.
I do not for a moment think Brownlee will do any of those things.1 But the mere fact that he can is a constitutional outrage. As Lew put it, we are relying on Gerry Brownlee to not be evil. And that is not acceptable in a democracy. Democratic societies under the rule of law do not trust politicians not to be evil – we tie them up so they cannot be.
No-one questions the need for emergency legislation to empower the reconstruction. But this bill, with these effectively unlimited powers was not the way to do it. And what really stinks is that every party voted for it. Faced with the threat of National labelling them “unpatriotic” (or worse, “unCantabrian”), they obediently fell into line and voted for it in the name of “national unity”. Even the Greens were silenced where it mattered – at the vote. And that is how dictatorship happens.
1 I expect him to do other things instead – like weakening the building regulations which just saved thousands of lives, or exempting some large donors from the “hassle” of the RMA and so forth.
Has anyone actually shown that there are laws that need to be changed that can’t be changed quickly enough through Parliament, sitting under Urgency if needed?
At least the Greens put up some amendments to limit the law’s scope, although I don’t think they were agreed to. And Labour refused to back National’s original plan for the law to remain in effect until 2015, resulting in it expiring in 2012 instead. But the willingness of Parliament to sign away its own powers as the body of our elected representatives at the first cry of ‘crisis’ is very, very worrying.
So is taking away the Courts’ ability to adjudicate on whether Orders in Council are legal and justified. John Carter says it’s to prevent vexatious cases wasting time. If that’s the concern, make the law that Courts can’t hear vexatious cases. Don’t muzzle the judiciary entirely.
To the growing list of post-quake reforms we need add: a well-thought out Disaster Recovery Act that can be enabled by Parliament after a disaster, so that we don’t get this rush to legislate that results in overkill with massive unchecked power being awarded to ministers.