Severe Weather Emergency Recovery Legislation Bill is rushed legislation that reeks of Stupidity

Cyclone Gabrielle: Outcry over ‘Henry VIII’ powers in cyclone bill

The Government is rushing powerful cyclone-related legislation through Parliament before the current sitting block ends next Thursday.

Emergency Management Minister Kieran McAnulty introduced the Severe Weather Emergency Recovery Legislation Bill this week.

Submitters were given one day to draft written submissions on the bill and oral submissions were heard on Thursday by the Governance and Administration Committee.

Lawyers and legal academics decried the process for the legislation, and warned that it was poor form for such a wide-ranging piece of legislation.

The bill allows the Government to bypass parts of other legislation as it progresses with the cyclone recovery. Those pieces of legislation are listed in the bill, but the Government has the ability to add to the list after the bill is passed without having to go back to Parliament – an extraordinary power. The bill only applies to areas affected by the cyclone, although it has been drafted in such a way that the area includes most of the North Island, excluding Taranaki and Wellington. Other regions can be added.

McAnulty said he acknowledged the “bill is being progressed through the House at great speed”.

Look, we all want shit rebuilt quick smart without the usual penny pinching foot dragging with endlessly pointless consultations, but when the people criticising this are the best constitutional legal minds in the country, pump the break peddle champ…

Victoria University Associate Professor Dean Knight submitted that there were issues both with the content of the bill and the process used to enact it.

In a written submission, Knight said the bill enabled ministers through “Henry VIII powers” to “modify, extend or override primary legislation by orders-in-council” in affected regions and districts.

“These are extraordinary powers in our constitutional context,” he said.

Knight said these powers were not uncommon in emergency legislation but they needed checks and balances that were “adequate to mitigate any potential for misuse of these exceptional powers”.

A Henry VIII power means the legislation delegates the power to ministers to make sweeping changes without resorting back to Parliament. The powers would more traditionally be dealt with by introducing a new round of legislation.

Constitutional expert and lawyer Graeme Edgeler described the process as “more than unfortunate” in a written submission.

Edgeler was also critical of the Henry VIII powers in the bill.

“I consider that the process is more than unfortunate. I am particularly concerned about the Henry VIII clause in the bill, which should be avoided wherever possible. In particular, I consider that the ability to add new laws to those which may be affected by orders should be removed,” Edgeler said.

Edgeler said the committee should recommend that “it has insufficient time to consider the bill and therefore recommends that it not be passed”.

“It should also recommend that work be done on permanent legislation to deal with issues such as this so that matters like this do not have to be dealt with in this way in the future,” he said.

He said the committee should nix the part of the bill that allowed the Government to add laws to the list of those that might be affected by the cyclone legislation.

Members of the Law Society’s Public and Administrative Law Committee, Nick Crang and Scott Fletcher, recommended that the bill be withdrawn.

Crang also took issue with the fact the bill allowed the Government to expand the scope of the legislation.

“The bill delegates power to the minister to abrogate a wide range of statutes that overrides Parliament’s lawmaking power. It gives power to the minister to expand that list and to make the changes retrospective.

“These are extraordinary changes.

“The Law Society questions whether this is necessary and whether parliamentary process under urgency couldn’t be used instead,” Crang said.

He said the bill should be withdrawn, or if not, altered and effectively pared back.

…that is an enormous amount of heavy weight legal opinion all waving redflags at allowing Ministers to have unchained powers with no recourse or review process.

That’s pretty fucking extreme, and while we certainly want pretty fucking extreme to rebuild from the Cyclone damage (in time to get hit by the next Cyclone), shouldn’t there be some review process in these decisions?

 

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