The Canterbury Earthquake Response and Recovery Act

The New Zealand Law Society has said it recognises that there were unprecedented circumstances which led to Parliament passing the Canterbury Earthquake Response and Recovery Act 2010.

Law Society President Jonathan Temm today said the earthquake was an exceptional and devastating event which justified emergency legislation to facilitate the recovery of the Canterbury region.

Mr Temm said it was understandable that the resulting Act made exemptions, modifications or extensions to relevant legislation. It was also noted that the new powers were seen as having a finite duration, with the Act expiring on 1 April 2012.

“We acknowledge the pressures which have been placed on Parliament to provide appropriate machinery for assisting recovery in Canterbury,” Mr Temm said. “However, the Law Society believes it has both a legal and a moral duty to place on record its concern that there are some serious issues with the Act and how the Act impacts on the rule of law.”

“We are not going to criticise the legislation from the sidelines. While we strongly point to what we see as problems in the way the legislation is drafted, we have some suggestions on how Parliament can resolve these.”

Mr Temm said the Law Society believed that the powers delegated to Ministers by section 6 of the Act were potentially at odds with maintenance of the principles of the rule of law.

“An Order in Council may make exemptions from, modify or extend the provisions of any New Zealand statute, with only five exceptions. Lawyers and commentators have already pointed out that this could include the Crimes Act, legislation on taxation and revenue, and many other statutes which have no connection to recovery work in Canterbury.

“Of course, it can be said that the powers will never be used. However, our concern is that while everyone may act with the best intentions in the interests of Canterbury and New Zealand, there is still reliance on anyone using the powers conferred by the Act to define their own boundaries and restraints. Even actions which are taken in good faith by officials could go beyond what was envisaged by Parliament when it passed the legislation.”

Mr Temm said the Law Society also pointed to the provision in the Act which made it difficult or impossible for anyone to obtain a judicial ruling on whether the powers in the Act had been used appropriately.

“The Society suggests that a workable approach would be to specify which Acts might be the subject of Orders in Council. This would limit and define the powers without necessarily preventing their use for earthquake recovery in any way. Judicial review should also be available to determine whether power has been used appropriately or otherwise.”

Mr Temm said the Law Society has written to the Attorney-General with details of its concerns and with an offer to work with Parliamentary officials or others in dealing with the concerns which are now being voiced about the legislation.