Open letter on the CERRA

Written By: - Date published: 2:05 pm, September 28th, 2010 - 25 comments
Categories: democracy under attack, Parliament - Tags: ,

Reproduced from Pundit:

An open letter to New Zealand’s people and their Parliament.

We write as a group of concerned citizens with academic expertise in the area of constitutional law and politics.

We share New Zealand’s deep concern about the physical damage to Canterbury and the personal trauma this has caused the region’s residents. All levels of government have an obligation to help the people of Canterbury rebuild their homes, businesses and lives as quickly as possible.

However, while we are united in wishing to help Canterbury recover, there is a risk that the desire to do “everything we can” in the short term will blind us to the long-term harms of our actions. In particular, abandoning established constitutional values and principles in order to remove any inconvenient legal roadblock is a dangerous and misguided step.

Yet this is what our Parliament has done, in just a single day, by unanimously passing the Canterbury Earthquake Response and Recovery Act 2010. It represents an extraordinarily broad transfer of lawmaking power away from Parliament and to the executive branch, with minimal constraints on how that power may be used. In particular:

  • Individual government ministers, through “Orders in Council”, may change virtually every part of NZ’s statute book in order to achieve very broadly defined ends, thereby effectively handing to the executive branch Parliament’s power to make law;
  • The legislation forbids courts from examining the reasons a minister has for thinking an Order in Council is needed, as well as the process followed in reaching that decision;
  • Orders in Council are deemed to have full legislative force, such that they prevail over any inconsistent parliamentary enactment;
  • Persons acting under the authority of an Order in Council have protection from legal liability, with no right to compensation should their actions cause harm to another person.

These matters are not simply “academic” or “theoretical” in nature. Over and over again history demonstrates that unconstrained power is subject to misuse, and that even well-intentioned measures can result in unintended consequences if there are not clear, formal measures of oversight applied to them.

We do acknowledge that the powers granted by the Act have some restrictions on their use. They only can be used to achieve the objective of the legislation (although this is very broadly defined). Five key constitutional statutes are exempted from their ambit. Orders in Council inconsistent with the New Zealand Bill of Rights Act 1990 may not be made. Parliament can review and reject Orders in Council, albeit through a rather slow and protracted process.

Nevertheless, the vast amount of lawmaking power given to ministers renders these limits insufficient. In particular, there need to be tight restrictions on the enactments a minister may change through an Order in Council and clear and precise grounds that justify any such change. These grounds also need to be open to review by the judiciary, to ensure that they really are met in any particular case.

Any claim that such safeguards are unnecessary because the Act’s powers will be wisely and sparingly applied, and that informal “consultation” and “public pressure” will ensure that this happens, must be resisted. Only formal, legal means of accountability, ultimately enforceable through the courts, are constitutionally acceptable.

Furthermore, the Act now stands as a dangerous precedent for future “emergency” situations. This earthquake, devastating though it has been, will not be the last natural disaster to strike New Zealand. When the next event does occur, inevitably there will be calls for a similar legislative response, which will be very difficult to resist given this example.

Finally, we emphasise that we have no partisan agenda to pursue here. The fact is that all MPs of every party joined in this action. They did so with the best of intentions, driven by an understandable desire to display their solidarity with Canterbury’s people.

But we feel their action was a mistake, and they too quickly and readily abandoned basic constitutional principles in the name of expediency. We hope that with a period to reflect on their action and the consequences this might have that they now will revisit this issue in a more appropriate manner.

Signed:
Professor Stuart Anderson, Faculty of Law, University of Otago.
Mark Bennett, Faculty of Law, Victoria University of Wellington.
Malcom Birdling, Keble College, University of Oxford.
Joel Colon-Rios, Faculty of Law, Victoria University of Wellington.
Richard Cornes, School of Law, University of Essex.
Trevor Daya-Winterbottom, Faculty of Law, University of Waikato.
Professor John Dawson, Faculty of Law, University of Otago.
Richard Ekins, Faculty of Law, University of Auckland.
Associate Prof. Andrew Geddis, Faculty of Law, University of Otago.
Claudia Geiringer, Faculty of Law, Victoria University of Wellington.
Kris Gledhill, Faculty of Law, University of Auckland.
Professor Bruce Harris, Faculty of Law, University of Auckland.
Professor Mark Henaghan, Faculty of Law, University of Otago.
Dr John Hopkins, Law School, University of Canterbury.
John Ip, Faculty of Law, University of Auckland.
Carwyn Jones, Faculty of Law, Victoria University of Wellington.
Dean Knight, Faculty of Law, Victoria University of Wellington.
Prof. Elizabeth McLeay, Faculty of Law, Victoria University of Wellington.
Steven Price, Faculty of Law, Victoria University of Wellington.
Vernon Rive, Law School, Auckland University of Technology.
Mary-Rose Russell, Law School, Auckland University of Technology.
Katherine Sanders, Faculty of Law, University of Auckland.
Dr Rayner Thwaites, Faculty of Law, Victoria University of Wellington.
Professor Jeremy Waldron, New York University School of Law.
Ceri Warnock, Faculty of Law, University of Otago.
Nicola Wheen, Faculty of Law, Univerity of Otago.
Hanna Wilberg, Faculty of Law, University of Auckland.

Reproduced from Pundit.

25 comments on “Open letter on the CERRA ”

  • Comments are now closed

  1. Blighty 1
    28 September 2010 at 2:21 pm

    good show.

    hopefully parties will draft the amendments needed to limit CERRA’s dictatorial powers.

  2. Lanthanide 2
    28 September 2010 at 2:34 pm

    My boyfriend pointed out that while he doesn’t have a problem with the law itself, because he doubts it’ll be abused, he does wonder how it ever came to be in the first place.

    The excuse for the sweeping and broad powers is that it was written ‘in a hurry’ to get it in place before the state of emergency was lifted in CHCH.

    He rightly asked why this legislation wasn’t written beforehand, with full support from everyone in parliament. Given that we’re living in a country that assumes that sometime in the next 100 years it is almost certain that the capital city is going to be hit by a 7+ magnitude earthquake, and the alpine fault is likely to go at 8+, why don’t they have this legislation already drafted and sitting ready to go in the event of the crisis? That way instead of having to cobble something shoddy together in a hurry, they can take out their legislation “prepared earlier”, make a few adjustments as necessary and pass it into law with a minimum of fuss and bother.

    We seem to be good at planning building codes and civil defence responses to disasters, so why is there a lack of similar planning at the highest legislative levels?

    • Draco T Bastard 2.1
      28 September 2010 at 10:36 pm

      That way instead of having to cobble something shoddy together in a hurry, they can take out their legislation “prepared earlier”, make a few adjustments as necessary and pass it into law with a minimum of fuss and bother.

      Done properly it would already be in law and ready to be activated just like the emergency legislation. The question about this law that needs to be asked is Did they need it at all? From what I can make out, no, they didn’t.

    • Bored 2.2
      29 September 2010 at 10:20 am

      Lanthe, your boyfriends question on why this law ever came to exist? Great question.

      Coming away from the circumstances which you and others say will be replicated, there are some underlying questions about our psyche as a people, our commitment to democracy and our need for assurance, certainty and protection.

      Maybe we are inclined toward authoritarian approaches to issues, maybe National have a strong paternalistic head of the family psyche. Maybe it shows we might happily shelve all of our concensual arrangements when trouble appears. Maybe it shows we are not averse to dictatorship if it “gets things done”. Mayhaps we are troubled children who have such need of haste that we willingly in the face of adversity jump from frying pan to fire.

      What I do know is that lasting results are concensual as opposed to imposed. They can take time and careful consideration. I see the new Act as a knee jerk reaction that displays a total lack of faith by all those in parliament for the capabilites of, and the foundation principles of the institution they represent.

      PS In the words of the cheesemaker in the advert “good things take time”.

  3. ianmac 3
    28 September 2010 at 2:37 pm

    I wonder if MSM will give this traction? There was an editorial in the Press I think, a week or so ago but there seems to have been little concern expressed otherwise.
    The concerted effort by these law academics must be compelling to politicians and public. On other matters it seems that opinions are diverse yet on this one they agree.

    • Jim Nald 3.1
      28 September 2010 at 2:46 pm

      Very highly regarded and distinguished names are in that list.

      • Bill 3.1.1
        28 September 2010 at 3:40 pm

        Very highly regarded and distinguished names get roundly ignored unless they are saying the ‘right’ things in the ‘right’ way to the ‘right’ people.

        • Jim Nald 3.1.1.1
          28 September 2010 at 3:46 pm

          Cool, that gives me an idea to email to thank them and share my comments with them to pass on to others.

  4. Herodotus 4
    28 September 2010 at 2:56 pm

    This maybe lost to the publuic at large as to the implications of CERRA. Everyone in Wellingon has gone quiet on this. It maynot be a big vote catcher, yet I wonder if primarily The Greens and to a lesser state Lab will incorporate some changes for next years elections promises. I have great hope re the greens as they have attempted to distance themselfs in someway from this, Re Lab they sleep with Nat you share the diseases from this together. Also there was little commentary from Lab as to the potential evils of this, so it would be somewhat hypercritical for Lab to state for changes.
    Great to see that the concerns of everyday Joe Blogs being confirmed by the academics. Just as well that Chch did not incur greater devastation as to what the CERRA could have looked like then.
    But I share ianmac concerns regarding the lack of traction re MSM, I doubt that it will even appear on either 6:00 news tonight.

  5. Pete Sime 5
    28 September 2010 at 3:08 pm

    I have been listening to a brilliant podcast called A History of the World in 100 Objects and one episode on Suleiman the Magnificent made a very good point:

    “Modern politicians often proudly announce their desire to sweep away red tape. The contemporary prejudice is that too much paper-work slows you down, clogs things up. But if you take a historical view, it’s bureaucracy that sees you through the rocky patches, and enables the state to survive. Bureaucracy is not evidence of inertia, it is life-saving continuity”.

    In other words, be careful what red tape you slash.

    • Draco T Bastard 5.1
      28 September 2010 at 10:40 pm

      Yeah, that’s what I’ve been thinking lately. Administration is a needed part of a complex society and getting rid of parts of it will cause calamity rather than the hoped for Good Times. This is observable in the Leaky Homes saga that we’re presently going through.

    • Bored 5.2
      29 September 2010 at 1:17 pm

      Great quote Pete, sums it all up. I have often thought beaurocracy was the check and balance of power against power, the difference between limited and unlimited power. Thats the danger of over riding due process.

  6. gobsmacked 6
    28 September 2010 at 4:37 pm

    Well done to the people who organised and signed this.

    OK, it may not make instant headlines – it’s not a “sexy” story – but it’s still important to speak out. Opposition to this act will grow over time.

  7. BLiP 7
    28 September 2010 at 4:40 pm

    But . . . but . . . but . . . what will the media think?

  8. Carol 8
    28 September 2010 at 6:16 pm

    In the last few hours there have been articles on this open letter on the websites for NBR, Stuff, NZ Herald, Radio NZ, and Newstalk ZB. But it’s not front, centre, or main headlines on any of these sites.

    However, its out there for journos to see, so it creates a platform for the Greens and/or Labour to pick up on… maybe to call for repeal/reworking some parts of the law and/or a proposed law to ensure no future law undermines democaracy in the way CERRA has done.

  9. Puddleglum 9
    28 September 2010 at 8:16 pm

    An excellent letter. It’s still hard to believe that there wasn’t a single MP who could see that, irrespective of any need to expedite recovery efforts, this was so far over the top to set a dangerous precedent.

    In retrospect, it seems clear that National and Act put it forward because they wanted the political capital from seeming to act swiftly and decisively. It’s also clear that Labour, and the Greens, Maori Party, etc., backed it out of fear of the political backlash of seeming to be an obstacle to recovery efforts. An extraordinarily disappointing result all round. In the US at least there was one Congresswoman who opposed the Patriot Act (or was it the war in Afghanistan? Or iraq? The memory hole begins its sucking sound …).

  10. Bunnykinz 10
    28 September 2010 at 10:25 pm

    When it was suggested by Green MP Kennedy Graham that we should have permanent legislation for future emergencies, The Honourable Gerry Brownlee spoke thus, “It’s not on the agenda at the moment… I think it would be a greater constitutional outrage to have a permanent provision in the law.” http://www.voxy.co.nz/politics/law-experts-criticise-quake-bill/5/65339

    Yep, we wouldn’t want to prepare for these types of emergencies would we?
    You can almost hear him thinking “it might be Labour in power next time.”

    • Lanthanide 10.1
      29 September 2010 at 11:21 am

      How can it possibly be a “greater constitutional outrage” to have something set up in advance that everyone has agreed to and has gone through select committee and public consultation and consultation with experts? How? Is he seriously suggesting that rushing a bill through in a few days with the powers he currently has is somehow less of a “constitutional outrage” than what I have outlined above? Plain dishonesty.

  11. Draco T Bastard 11
    28 September 2010 at 11:17 pm

    An Open Letter To The People of New Zealand
    Twenty-seven tyrants and generals speak out against the meddlesome legal profession

    We remain hopeful that the desire to do “everything we can” in the short term will blind the people of New Zealand to the long-term harms of the actions of their politicians. In particular, abandoning established constitutional values and principles in order to remove any inconvenient legal roadblock is just the sort of thing we like to see. It would have been more fitting had tanks and armoured vehicles been involved in the granting of these wide powers, but we understand that the vehicles used by the New Zealand army can’t be relied upon to stay roadworthy.

  12. ianmac 12
    29 September 2010 at 10:37 am

    The issue was aired on Nine to Noon first up. Thank goodness.
    It occurs to me that this Act is interchangable with that of Fiji.

    • prism 12.1
      29 September 2010 at 11:16 am

      The diminution of democracy.
      First chapter – Get into power with smiles and promises and find a problem that can be turned into an urgent requirement for action, which will be beneficial in the future so nobody can quite quantify the situation. Better still turn an emergency into a disaster and abrogate all laws for as long as possible. After all you know best, you have been elected into a minority with vast powers over the country.

      The people have decided you can be trusted and that you will be honest and capable and carry out required actions that will have favourable consequences for the population in a rational manner. Most of them will never grasp that the consequences will not necessarily favour them, suckers!

  13. tea 13
    29 September 2010 at 4:12 pm

    Where the fuck is the Democracy under Attack banners?

    It’s a bit late- the attack has successfully happened and this time it’s only ‘hand wringing academics’ (what a fuckn odious creep Brownlee is) not rich right wingers wanting to spend money complaining…

    This should be front page headlines…

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