More thoughts on the Gerry Brownlee Enabling Act

Written By: - Date published: 1:22 pm, September 16th, 2010 - 30 comments
Categories: democracy under attack, law and "order", Parliament - Tags: , ,

The Right seems to have developed this concept that unrestricted power to authority is a good thing and we ought to just trust those we give powers to not to abuse them. I say developed because limiting State power was once a core value of the Right. Maybe it was only ever a certain kind of power they wee worried about – power over the rich. The Gerry Brownlee Enabling Act* isn’t the only example, look at the constant clamour for more powers for the Police and other State agencies.

We shouldn’t have to go through why unchecked power is a bad thing but judging by the righties in yesterday’s comments I guess we do. In democracies, we don’t give unlimited powers and trust that they won’t be abused. We set strict limits on the exercise of power to guarantee our freedoms and the rule of law on which our society and economy depends.

Will Gerry Brownlee run amok? Probably not. But, dear reader, I trust that you are the kind of person who would never go on a shooting spree. Even so do you think we should make it legal for you to do it? Should we put a gun in your hand and say ‘you can shoot people if you like but we trust you won’t’? Or is it f*cken stupid to give people dangerous powers they don’t need and cross our fingers that they won’t use them?

I haven’t seen a single argument that Brownlee needs the power to unilaterally alter or override the Building Act and the RMA, let alone the Crimes Act, the Cooks Islands Constitution Act, the Continental Shelf Act, the Companies Act, the Contracts Act, the Conservation Act, not to mention the hundreds of other laws Brownlee now has complete power over. Even David Farrar has found it impossible to directly support the huge powers that Brownlee has been given.

Farrar and other apologists have said ‘public opinion will keep Brownlee in line’. Yeah, because he’s always been so responsive to public opinion. It took the biggest march in generations just to force John Key to act to get Brownlee to back down over Schedule 4. Anyway, the abuses that we see will probably be small favours to National’s mates – not headline grabbing stuff that could get the public’s back up.

The deeper question is: in what circumstances do we give up the rule of law and Parliamentary sovereignty? Eddie wrote the other day that in World War 2 the democracies effectively became authoritarian states but that was total war and even then Winston Churchill didn’t have the right to alter any law as he chose with the flick of a pen. We didn’t become a dictatorship to deal with the Hawkes Bay Earthquake, which had flattened two cities, why would we need to do so to cope with relatively minor damage in Christchurch, which is still functioning on every level?

More than that, the idea that due process and the rule of law are hindrances that can to be thrown aside on the slightest of pretexts is very disturbing. Rule of law, the foundation of democracy, is what makes this country strong. It’s not something to toss out the window because it’s ‘in the way’.

I’ve got a technical issue too. The law says that when it refers to “Minister” as in “s12(3) The Minister must publish the terms of reference and any amended terms of reference in the Gazette.” means” the Minister for Canterbury Earthquake Recovery”. But there is no such minister. Gerry Brownlee doesn’t hold a ministerial warrant of that name, no-one does. There’s no such portfolio. Key made it clear when he named Brownlee as Minister for Canterbury Earthquake Recovery that this was not an official portfolio, just an informal designation, like a nickname. So, if there isn’t an official Minister for Canterbury Earthquake Recovery, who is the Act referring to?

Can’t even draft their Enabling Act correctly it seems.

I want a straight answer from the Right about why they support Brownlee being given the power the override or extend nearly every law in the land at the whim. And ‘the whole Parliament voted for it’ isn’t an answer. Not if you believe in freedom.

*(I changed my mind on the comparison to the 1933 Enabling Act. At least the SDP voted against the Enabling Act. Labour and the Greens were so scared of being called unpatriotic they failed to stand up when their country needed them)

PS. At least the Herald’s principles have overridden its National-love on this occasion – the editorial is damning.

30 comments on “More thoughts on the Gerry Brownlee Enabling Act”

  1. ianmac 1

    My friends and family are heavily into the building industry in Canterbury. For years they have been frustrated by finicky laws about construction and constant nit-picking by nosey Council Inspectors. Now they are toasting the new opportunities to make a mint. They know well the short cuts that they can take, and boy this is a chance of a lifetime! They had Gerry round to dinner last night and he will do what he can to help.
    Cheers from Mikey Rat and Henderson Bros Construction Company.

    • kevyn 1.1

      I presume ianmac’s entire comment is just as real as the Henderson Bros Construction Company and isn’t intended to slight the two builders registered with similar companies in other parts of the country.

  2. Red Rosa 2

    A thoughtful and considered editorial in the Herald, in total contrast to the scramble by MPs to support this legislation. Surely in retrospect some at least must be reading it and regretting their support. They should speak up.

    In fact of course, vital services are mostly restored in ChCh, and emergency shelters etc are winding down, as the next article on the Herald site points out. Far from fixed of course, but having come this far without GB as Czar, you have to wonder why the rush now?

    The earthquake was very capably handled in ChCh – the real panic has been in Wellington. And those who have pointed out the contrast to Darwin’s Cyclone Tracey, and the legislative response there, have a real point. No comparison.

    • Draco T Bastard 2.1

      The rush now was to get absolute power into NACTs hands before they’re voted out at the next election.

  3. tc 3

    looking forward to some montgomery burns styled leadership from nat’s jabba the hut…..he knows no other style.

  4. smhead 4

    Marty why do you say it’s the Right who have this love for authoritarian power when the Greens, Labour and Jim Anderton all voted for it?

    Are labour and the greens too right wing for you now?

  5. Gosman 5

    So where are your examples of people of the Right being over the moon with this?

  6. Red Rosa 6

    The ChCh Press has an all-purpose editorial for occasions like this, last seen for the ECan takeover. Connoisseurs of National Party prose will savour today’s version of ‘the government is right, again’

    • Puddleglum 6.1

      Just read it.

      This Holden guy is so ineptly partisan he makes me long for Paul Thompson’s return! (which I never thought I’d say)

  7. just saying 7

    Won’t this precedent come in handy in a couple of years, when the chickens from the ‘perfect storm’ of crises facing the world, are well and truly coming home to roost, and large numbers of people are poor and angry with little left to lose. Many of them refugees from the current middle class, no doubt.

    My guess is that Brownlee will make his best effort to keep his nose clean for this ‘dry run’ to get the public comfortable with these kinds of measures, so that when they are hauled out to quell dissent, chucking out democracy will be well and truly old hat.

    And the same measures will be used by which ever flavour of neoliberalism is in power.

    • Lanthanide 7.1

      Yes, that is what I truly worry about. Not so much that the powers are going to be abused at the moment, but because it sets a precedent with a very low bar for the same powers to be voted back in the future in the face of other calamities (peak oil anyone?) where they really will make (ab)use of their authority.

      • JayMal 7.1.1

        Absolutely right. Doubt King Gerry will stuff up this time, but would anyone on the planet feel safe if an Emperor Winston got the same power to deal with another crisis… anyone want to bet the liberty of their children or grandchildren that this wont be abused in the future?

        We need this law repealed ASAP and replaced with something much more sensible and considered. Plus we need a check in place to stop this crap happening again.

        BTW… is it just me or did anyone else notice the timing of the Garrett leak to cover this all up?

  8. prism 8

    A useful thing that Christchurch Czar Gerry could do for citizens there is to get extra reliable, experienced people checking properties for damage so enabling people to make applications for appropriate help.

    Also once assessment was made, he should have insurance companies on side to issue cover notes which though short-term would enable building owners to act as needed to further or finalise their needs or obligations and business requirements. This would be issued on the basis that the building, and charge for insurance, would be further assessed in the next three months.

    The government would help and facilitate this by offering some form of guarantee or loan to the insurance companies to enable them at this time when their finances are really stretched. Moral hazard could be prevented by only dealing with established companies with high rankings, which would bear the major part of any loss, so that they would still be prudent and careful.

  9. A Nonny Moose 9

    I’m a lefty. I agree that the government should be restricted in powers like this.

    But I’m getting tired of some of the rhetoric here.

    I suggest you talk to someone on the ground in Christchurch, who is working to aid the recovery.

    Like I did today. Who is a lefty. Who has been working with Gerry Brownlee. And is impressed by the work he is doing, and says he is not the “czar” you are making him out to be.

    I’m not someone who can talk eloquently about politics or rhetoric. But for the sake of Christchurch, how about getting down on the ground – where we are, having to live through this damn thing – and find out what’s really going on before spouting political ideology, yeah?

    If Brownlee fails the country, then hell yeah I’ll be pissed. But right now, he’s getting the job done, unlike Ivory Tower commentators.

    • prism 9.1

      You’re a lefty nonny moose, you say. Don’t you hold democracy as your ideal? When Labour conducted a right-wing revolution in 1984 that was a sort of earthquake to the right, didn’t you get scared? Or were you too young to know what was going on then and understand the ongoing effects till now? Just because something is done that might lead to some good, it doesn’t mean that thing was done correctly and rightly.

    • kevyn 9.2

      As someone who was involved in preparing Canterbury’s infrastructure for the enevitable Alpine Fault earthquake I really can’t see any justification for this extraordinary piece of legislation.
      What has clearly been lacking over the last 30 years (at least) is that politicians don’t “run” the country, they govern the country. Totally different concepts. It is particularly dangerous when the politicians “running” the country allow themselves to be “guided” by focus groups instead of the old practice of weighing up the advice being given by their officials and private sector technical experts and acting at least partly in the interests of future generations.
      Thanks to the preparedness of various private and public organisations that took the warnings from paleosiesmologists seriously there wasn’t the total disruption to essential services and supply lines that happened in Hawke’s Bay, Edgecumbe, Murchison etc and with good use of modern management systems most of the city and services were back to normal within either hours or days. The 10% or 20% of people and services and businesses that are not yet back to normal and wont be for many months just need approriate co-ordination amongst private and public angencies, something that ECan is perfectly capable of providing within existing legislation as long as the government loosens appropriate purse strings. A good example was the lifting of the normal Main Highways Board subsidy limits for local road funding in Buller and Hawkes Bay.

  10. JayMal 10

    No doubting what you say Nonny Moose, and I actually agree that a good job is being done. However that doesnt mean the law is good, or justified. The problem is twofold:

    1. It is open to abuse, not today, maybe not tomorrow, but how about in a years time when an annoying problem comes up. The complete lack of accountability either through checks and balances or in terms of public awareness of decisions being made is terrible.

    2. It sets a dangerous precedent. History proves time and again that the first use of power is usually for an extreme event, but the threshold for its re-use is lower each time. We’re not just protesting for today, but trying to protect tomorrow. If we accept it now, it will be used again in the future, there is no reasonable way to deny it. Would you be happy if unlimited power to amend or make any law was granted to Winston Peters for .. well … for anything?? How about Don Brash or my good mate Hone?

    The law simply goes too far. Arguably a change to law was needed to help Christchurch, but this is a simple power grab under the guise of helping Christchurch. On no level can it be justified, there were simply too many other options to achieve the same end on the table.

    At best it is lazy, knee jerk, law making. At worst it is a conspiracy theory (I favour the former, others here the latter).

    Bottom line is that as terrible as Canterbury’s problems are can the government justify removing nearly every democratic protection put in place over the last 300 years in order to fix it? Can it justify removing the rights that two generations fought and died for in the two 20th century wars? Can it justify removing protections when we condemn other nations that do the same for other kinds of national ‘disaster’ or crisis (eg, Fiji, Zimbabwe)?

    I say again, there were and are still other options open to the government to achieve what is needed without enacting powers that far exceed those that were deemed necessary to protect the human species.

  11. Brownlee just exempted canterbury local authorities from using the special consultative procedure for asset transfers or changes in the mode of service delivery. Or, in English, Brownlee just gave Bob Parker the power to sell Christchurch’s buses without any need for consultation. Thanks a bundle, Labour and green MPs.

    • JayMal 12.1

      Thanks for the heads up IS. If I was Satyanand I would have resigned rather than sign that into law. That would have given this horrible situation the attention it deserves.

    • Bill 12.2

      I know you’re using the example of the buses merely as an illustrative example.

      But any such sale couldn’t go through because the Order you link to says that “Subclauses (1) and (2) apply only to the extent that a decision, act, or omission to act is, directly or indirectly, necessary or desirable to further 1 or more of the purposes of the Canterbury Earthquake Response and Recovery Act 2010 as set out in section 3 of that Act.”

      And I cannot see how selling the buses could be twisted to fit with the purposes of section 3.

      But I do wonder why the order is deemed to have come into effect on the 4th Sept?

      • JayMal 12.2.1

        Point taken, however the complete lack of any accountability in decision making means only a vague tenuous link would be needed. You could argue selling buses could be justified under 3(a)(b) or (e) as raising money to help with the rebuilding. Not a very good link I admit but without power to review the decision it would still be a legal decision.

        Actually the one that sends tremors up my spine is 3(e):
        “The purpose of this Act is to provide protection from liability for certain acts or omissions.”
        If read on its own gives a blank cheque book. Not even the long title of the Act suggests this clause should be limited to helping Canterbury, simply it is there to provide protection for undefined acts or ommissions.

        Not that it matters as it cant be judicially reviewed anyway so GB doesn’t have to justify his decision.

  12. Jeremy Harris 13

    I\’ve created a facebook page about this issue, all welcome:

  13. JayMal 14

    I wonder what measures could now be taken to protect Christchurch’s tourism trade? Perhaps we can learn something from Fiji now this is within Gerry’s powers…

    Fiji residents are now banned from getting reports of bad weather. “Drought reports and updates will only be issued by the National Disaster Management Office, reports the Fiji Times Online, following a directive to the Fiji Meteorology Service to stop issuing media statements on the current dry spell. Ministry of Works and Public Utilities head Colonel Timoci Natuva said the directive was intended to prevent any negative comments that would impact on the country’s economy, particularly the tourism industry.

  14. Dunno what to make of this but thought it was funny as.

    Here’s an email i sent our dear leader….

    Hey John

    Howzit going ? All good i hope.

    Just a quick note, as i read you were raised in the
    Christchurch suburb of Bryndwr, so i was wondering what the
    address was and how the house, if it still exists, fared in
    the recent earthquake.


    to which i got this reply from his private secretary…

    On behalf of the Prime Minister, Rt Hon John Key, I acknowledge your email following the recent earthquake disaster in Canterbury.

    As the issue you have raised falls within the portfolio responsibilities of the Minister for Canterbury Earthquake Recovery, I have forwarded your email on to the office of Hon Gerry Brownlee for his consideration.



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