Canterbury Earthquake Response and Recovery Bill

I rise to speak in the Committee stage firstly to tell members that the Minister in whose name the Canterbury Earthquake Response and Recovery Bill is will be in the chair straight after dinner. I know that members have questions of the Minister, Mr Brownlee, and he will be here to listen to those questions and to do his best to answer them.

I want to make one or two points to just set the tone of the debate. I have listened to the contributions from various members and I think that the first thing that needs to be set clearly and squarely on the table is that this bill is not about this Parliament or this Government trying to run the recovery in Christchurch. It is a bill to allow this Parliament and this Government to assist the people of Canterbury, but the recovery is to be driven by the people of Canterbury. That is its purpose and it is the very reason for some of the points made by members earlier about the bill being referred to the Regulations Review Committee, for example, and the opportunity for that committee, which is chaired by an Opposition member, to allow full scrutiny of any decisions made in regard to this bill.

I think the second point that needs to be made, and it is an important point, is that any member can come and put a notice of motion on the Table if there is a decision taken by the Government by Order in Council. The bill allows for a motion to be debated, and if the Government does not allow a debate, then the Order in Council lapses. The purpose of that is to allow full and open scrutiny, which not only Labour members but also Green Party members and others have asked for. They have suggested that that is a vital part of our democracy. Of course it is, and that is the intention of the bill and of the Government. Indeed, it is one of the reasons why we have done our best to consult as widely as we can. I know that there are some amendments on the Table. It is our intention to ensure that there is full scrutiny of any decision where a member deems it necessary. If some person in the public is worried about an issue and refers it to a member of Parliament, there is that mechanism to allow the issue to be fully debated and disclosed. Some issues have been raised that the bill does not allow, because they are not necessary in the way in which this bill has been established.

This bill allows the public of New Zealand to hear the reasons for the decisions that are taken, if that is considered necessary. The purpose of this bill is to allow for the recovery to be undertaken as speedily as possible, but in a seemly way. The bill is to allow the people of Canterbury, and particularly the leaders of the people in Canterbury, to ensure that every step is taken to recover as rapidly as possible. As we heard in the House today, they are keenly attuned to the needs of the people of Canterbury. They are aware that there is a state of shock, and that all sorts of emotions will flow as people start to realise the impact on their lives. There will be disappointment, there will be anger, and there will be sadness. All sorts of emotions will flow, and we will need to deal with them as best we are able. This bill will allow those concerns to be addressed.

A member asked earlier when the state of emergency will be over. All being well, if this bill passes by this House, it is very likely that the state of emergency will be lifted tomorrow at 12 o’clock. So we will have a seamless transfer from a state of emergency into a state of urgency. Of course, the needs of the people who need access to welfare and psychologists, etc—all that sort of thing—will still remain; those needs will not disappear. The 0800 779997 number will still be there, so that all of those needs will be catered for, to allow continuity. We do not want any disruption. We realise that the lives of the people of Canterbury have already been disrupted, so the whole objective and purpose of this legislation is to do our best to ensure that there is a smooth recovery for the people of Canterbury. We have to be concerned about their needs, their worries, and their issues. They have to be first. It is not about this Parliament. It is about this Parliament and the rest of New Zealand helping the people of Canterbury to get back on to their feet so that normality can be restored as rapidly as possible. I have not heard anybody in this House who does not have that as their intent.

I know there are some amendments on the Table; they are being studied at the moment. I cannot say that they will all be adopted, but we certainly are doing our best to genuinely look at whether they can be incorporated. Of course, we would prefer at the end of the third reading debate for everybody in this House to agree. That may not be possible and it would be unfortunate if that were so, but we want the people in Parliament and in New Zealand to understand that this Government is genuinely trying to ensure that we have a cross-party agreement on this bill, because we think that that is in the best interests of the people of New Zealand. It may be that some points will be put that may not be supported; nevertheless, the intention is to do our best to accept, to cooperate, and to ensure a smooth transition. I finish by saying that our objective is to do our best to return the Canterbury region to normality as soon as possible.

I want to raise a couple of questions. I thank the Minister in the chair, the Minister of Civil Defence, for noting that Minister Brownlee will be available after dinner, and I note that we will be rising in about 5 minutes’ time. I will raise a couple of questions between now and the dinner break, but I will not expect answers.

The Minister for Canterbury Earthquake Recovery was good enough to release Cabinet’s advice to us. In essence, we received one paper from the Ministry for the Environment. I raise that issue and I flag it; I accept that there is pressure of time in pulling all this together from the various departments. I note from the paper that a vast number of Government departments and agencies were consulted. The date on the document is 13 September. I see, though, very little, if anything at all, in here about the responses from those departments. I know that there must have been a wide range of views, and that a wide range of agencies may have had some stake in the paper, but that is not reflected in it, given that I was told by Minister Brownlee that it was basically “the” advice paper. The Department of the Prime Minister and Cabinet gave no written formal advice, and neither did the Department of Internal Affairs or any other agencies, so I would be interested to know what response was put forward by the agencies that were consulted.

The second issue we have is in respect of Part 2. Clause 6(4) states: “An Order in Council made under subsection (1) may grant an exemption from, or modify, or extend any provision of any enactment, including (but not limited to)—”, and I would be grateful if we could get some feedback on Acts like the Cadastral Survey Act—

💬 Hon John Carter: What clause was it?

Part 2, clause 6(4). I am not a surveyor or an expert in cadastral mapping, but I would be grateful to know why that Act is included. I would also like to know about the Social Security Act, given that that Act provides for quite a few waiver powers, I am advised. So I ask why that Act is specifically listed in this document. I will raise those issues with the Minister and colleagues after dinner. We will also have some other issues to raise.

I accept the need for a swift approach to this crisis, and I absolutely accept the pressure that Government agencies were under just to pull things together. But it is of concern that the only advice paper that has been released, or “pulled together”, according to Minister Brownlee, as formal advice to the Government is one paper in the name of the Minister for the Environment on 13 September. I am sure that the Minister in the chair accepts that this legislation confers on the Government very, very wide discretionary powers. Even given the pressure of time, I am surprised that the Department of the Prime Minister and Cabinet, the Department of Internal Affairs, and the Department of Building and Housing, which will have a huge interest in this, have not had, given that it has been a number of days since the crisis, some formal written input into this legislation. I find it slightly odd that they would have provided only verbal advice. Again, I accept that the paper had to be pulled together very, very quickly. But it has been a number of days since we met the Minister on Friday or Saturday, and I would have thought that between then and now, those departments would have formalised their advice in order to, if anything, get on the record their advice to the Government, and to ensure that they had executed their duty appropriately.

As I say, there is a wide range of agencies. Even the Ministry of Foreign Affairs and Trade, the Ministry of Justice, and the Ministry of Pacific Island Affairs—damn near every Government department—I think have been consulted. Yet there is not any reference that I can find in the Cabinet paper as to what their views were, conflicting or otherwise. I do not note that in order to be obstructive, but either there was total unanimity on the part of every agency—having been a Cabinet Minister, I know that that would be a unique moment in our history, and I am sure that the Minister in the chair would agree—or there were different views and different flavours. That would then point us to possible risks.

Sitting suspended from 6 p.m. to 7.30 p.m.

I appreciate the Minister in the chair, the Minister for Canterbury Earthquake Recovery, being present to answer some questions. Before the break, I raised some issues in respect of, firstly, the Cabinet paper that he was good enough to provide to us. I do not raise these issues out of any criticism. I understand that this legislation was pulled together very quickly, but I note in the consultation section that a wide—almost an exhaustive—range of Government agencies were consulted. I would be grateful for some information, because the difficulty I have is in knowing how those agencies responded, if they did at all. I am assuming that the advice, if any, that was received from agencies like the Department of Building and Housing, which would have a huge interest in this legislation, the Department of Internal Affairs, the Ministry for the Environment, and the Department of the Prime Minister and Cabinet as a central agency, of course, may have provided initial advice orally in order to aid with the construction of the legislation, but I would have thought that—as it was signed off or conversations were had almost a week ago, and as this legislation had been signalled—those agencies would have come back and provided written advice, if only to place on record from themselves as agencies the fact that they had executed their duties appropriately in giving Ministers due advice. I am sure the Minister would accept that it would be unusual, although I accept these are unusual and swift circumstances, for agencies like the Department of the Prime Minister and Cabinet to provide no written advice. Certainly, agencies like the Department of Building and Housing provided no advice at all.

The second issue I raise is in respect of certain items in the legislative list for modification, extension, or exemption in clause 6(4) in Part 2, namely the Cadastral Survey Act and the Social Security Act. I am advised that there are wide-ranging and quite discretionary powers in respect of the Social Security Act. I am not a cadastral specialist, so I bow to the Minister’s and his officials’ expertise in respect of the Cadastral Survey Act. I can see the relevance for a number of other Acts, but it would be interesting to know why those Acts have been included.

I want to return to the point I have made. I understand, in respect of the Cabinet paper, which is only some six and a bit pages long, that that is the only advice we have received. I am grateful that the Minister provided that paper to us before the debate, but, as I say, I would have thought, as this legislation was signalled after the event a week or so ago, that even though the paper was signed off on 13 September, agencies would have been in a position by now to provide their views. They have been consulted. That is clear. Even the Ministry of Foreign Affairs and Trade, I note, has been consulted. I presume there is some relevance in terms of communicating the status of our well-being to other countries, especially in respect of trade and tourism, but I would have thought that those agencies would have responded to Ministers, and I would have thought that Ministers would have made it a requirement, as they went through to quality-control the legislation, even if just to check their thinking and that of their officials. Presumably, that would have also presented, unless there was total unanimity amongst every Government agency consulted—and I think members would agree that that would be a unique moment in our history—some varying views on the effectiveness of the legislation, which would have pointed out any risks, and we could continue to work with the Government to examine those risks, and perhaps resolve them in this debate. But I do come back to it. It is rather unusual that a document of six pages and two paragraphs appears to be the only written advice to Ministers in respect of this legislation. I say that not to be obstructive; I simply say it because, like the Minister, we want to see the best-possible legislation come out of this Chamber tonight so that he and his colleague John Carter and others can present the best-possible outcome for the people of Canterbury. But it does concern us that, as I say, a document of six and a bit pages under the name of one Minister is the only written advice, and other agencies have been consulted but have not provided any responses, at all. I would be grateful if the Minister could take a call and at least advise us whether any of the agencies consulted were opposed to, or had concerns about, any parts of the bill, especially the wide-ranging powers. Again, I say to the Minister that we accept that this is very wide-ranging and powerful legislation that, technically, could be abused.

I want to respond to the legitimate request that the member who has just resumed his seat, Clayton Cosgrove, made about knowing more about what the process was. What was released to members today is a Cabinet paper that was put together to get the sign-off for the bill being drafted into a final draft shape. The process has been such that there was, firstly, consultation with the three district authorities concerned—Selwyn, Waimakariri, and Christchurch—and representatives from the legal teams from those councils engaged with legal teams inside each of the affected ministries. So there was a relatively short, informal process. That process very rapidly threw up the fact that if we were to go down the track of having an exhaustive list of what would actually be required, we would be some weeks away from getting a bill that would allow things to continue and that would, in particular, allow for the transition from a state of emergency to one of getting on with the job.

Although it is the case that the written advice in these circumstances is thin, the fact is that there was considerable discussion and considerable input from all those agencies. It was a considered opinion of the agencies, in the end, that we should go down the track of saying we should get a bill that would try to describe as much as possible some of the Acts that we think may need to be altered, but that we should not make that exhaustive, and that we should put in a process that means we can rapidly respond as needs arise over the coming months. That is, essentially, the process we went through.

Although the member is quite right to say it is desirable that everyone is comfortable about where we are going with this, the reality is that we are doing something that has never been done before. We are doing this because we are dealing with an event that has never happened before. We are dealing with it speedily as a Parliament because we know tonight that there are people out there who have no idea what the future holds for them. Much of the certainty they will require in the next short while will be dependent on us having the capacity to make decisions quickly so we can give them the comfort they need about the property they own, their damaged houses, or the infrastructure near them that might need to be repaired—we could go on and on listing such things.

I think the comfort members should take in this bill is that it does have a very strong purpose clause. The purpose is well defined, and no Minister will be in any way looking at this bill and thinking of it as an opportunity to abuse some of the powers in it. There will be lots of constraints around that particular activity, not the least of which is our commitment to keep all parties in this House informed about how things are going and about the nature of the discussions around the reconstruction.

I also suggest that the solution suggested to us by the Labour Party yesterday—that of using the shortened disallowance provisions currently in the pandemic legislation—is perhaps not the right way to go and that a system that could see an Order in Council brought back into the House for debate was a much better way to go. I suggest that if we ever got to that point, we would have to be in the same sort of situation we are in at the moment, where there is widespread acceptance that it was the right course of action, or we would be in some trouble. So I do not think the concern that is being expressed about the widespread powers is reasonable.

It certainly would be interesting to see the people who are advancing that view go down to the suburbs that are all broken up across the districts and to the shelters that are operating and explain to people that they need a little more time and a much bigger process before they can come along and offer help. I know that the member who asked the question is not suggesting that. In fact, I know he is more acutely aware than many of the suffering that many Cantabrians are going through at the present time. I merely make that point in anticipation of some other contributions that may come later this evening.

The question was raised as to why the Cadastral Survey Act is in the legislation. There has been an enormous amount of land movement during the earthquake. There is a possibility that a peg for a property has moved quite some distance from where the actual boundary lines should be struck. There should be no question that there will need to be some redrawing of boundaries, some realignment, and there may well need to be a faster process in place to give effect to those boundaries being determined.

Many MPs have been contacted over the last few days by people expressing concern about the way in which property transactions since the earthquake have virtually stopped in the Canterbury region, and the reason for that is these sorts of things. Once we get past the aftershocks and once we get into a zone where insurers and lenders are comfortable about normal business, there will be a need to check to make sure that pegs have not moved and that boundaries have not artificially shifted. That is why the Cadastral Survey Act is in the legislation.

Although this bill has, as Mr Norman pointed out earlier, some very broad catch-all provisions, there is a genuine attempt under clause 6(4) to list the sorts of Acts that may—and I stress may—need to have an Order in Council applied to them in order for some small aspect of those Acts to be set aside, suspended, or changed as a result of efforts to remediate the worst effects of this earthquake.

Thank you, Mr Chairman, and thank you to the Minister for Canterbury Earthquake Recovery for the explanation in answer to the questions that were originally posed. Picking up on a couple of comments that the Minister in the chair, the Minister for Canterbury Earthquake Recovery, made, he assured the Committee that no Minister was seeking to abuse the powers being conferred by the Canterbury Earthquake Response and Recovery Bill. I think it is important to stress that the major concern about potential abuse is not necessarily a concern about the executive. It is, for example, about the powers that might be used, or otherwise not used, by councils and others under the legislation because of the exemptions being granted. Members will be keen to see the Regulations Review Committee exercise its scrutiny if this bill passes in its present form.

The other point that the Minister made was about the need for property transactions to resume and for the parties to those transactions to have confidence. One of the major issues that has been reported today is that there is real difficulty for parties to commercial contracts gaining insurance cover because of the attitude of reinsurers as settlements come up or as contracts come up for renewal. One of the things that I think would be helpful for the Committee to hear is whether the Minister thought about trying to deal with that situation in this legislation and, if not, whether there is a plan at all to try to address that major concern for people who are affected by this terrible disaster.

In terms of the detailed questions on the legislation that I would be grateful for the Minister’s comments on, the first one relates to clause 6(3). This provision would enact that the recommendation of the relevant Minister in recommending to the Governor-General that an Order in Council be made “may not be challenged, reviewed, quashed, or called into question in any court.” I ask why it was thought necessary to try to enact a clause of that nature at that stage of the process, where there is only a recommendatory power and where the courts have long expressed real concern about whether these sorts of provisions in legislation are enforceable. I wonder why it was thought necessary or desirable to have that sort of provision in this legislation, and it would be useful to hear from the Minister about that.

With respect to Kennedy Graham, I am not sure that the amendment he has put forward in respect of this clause would improve the situation much. As I said we would in my second reading speech on this bill, we have looked at his proposed amendments over the dinner break, and I will now express a view on them. The relevant amendment would amend that clause to allow a judge to exercise a discretion, effectively, about whether fundamental principles of justice would be compromised by not allowing a case to be heard. I am not sure whether that would remedy the situation.

It would be good to hear the Minister’s explanation of why clause 6(3) is there. I am not sure it is capable of useful amendment. It probably should either stay or go.

In terms of the rest of the legislation, my colleague Clayton Cosgrove asked some questions about the appearance of certain provisions in the list that appears in clause 6(4). One of the questions I had was about the apparently random nature of the list. The Social Security Act 1964 is mentioned in clause 6(4)(s), but no other legislation empowering the payment of any sort of benefit is mentioned. There is no mention, for example, of the student loan legislation or the liable parent contribution legislation. I ask whether it was thought that that social security legislation, in and of itself, was sufficient to be mentioned there, or whether other provisions of that nature should be dealt with.

The rest of what I will say relates to the amendments that we saw for the first time before the dinner break. The Labour Party would not be minded to support the provisions that would bring the application of the bill back to until 15 March 2011 only. The Government has already confined the application of the legislation to 1 April 2012. We think that is a useful way to confine the legislation. We do not think coming back to the House in 6 months on this matter would be a good use of the House’s time.

In respect of the amendment to require a certain number of members of the commission to be appointed by the Christchurch City Council, we understand that it is already the subject of an undertaking from the Minister of Civil Defence, John Carter, that a number of the members of the commission will be directly representative of the relevant local councils. If the Minister in the chair could clarify whether that is an undertaking on behalf of the Government, it would be useful.

As I understand it, the amendment that requires Orders in Council to be publicly available and presented to the House of Representatives is one that simply re-enacts the existing law. But if the Minister has a different view, it would be useful to hear whether that is the case. With regard to the provision requiring Orders in Council to be made publicly available and presented to the House of Representatives within 24 hours of being made, a summary of the Minister’s understanding of the current law relating to Orders in Council and their publication would be useful, so that we can determine a position on that.

Finally, the amendment that would apply the Local Government Official Information and Meetings Act to the Canterbury Earthquake Recovery Commission seems to be a sensible way to proceed. The Minister has not provided for the commission to be subject to the provisions of the Local Government Official Information and Meetings Act, and it would be useful to hear why the Minister does not think that Act should apply to the proceedings of the commission. Certainly, it is the Opposition’s view that it should.

Once a year I have the very good fortune to attend a memorial function in Hawke’s Bay for the 1931 Hawke’s Bay earthquake, which occurred some 79 years ago. People attending that function who range in age between 79 and 102, if I recall correctly, recount stories of the 1931 earthquake that are remarkably similar to some of the stories we are hearing today about the Canterbury earthquake. The Hawke’s Bay earthquake hit at 10.47 a.m. on Tuesday, 3 February 1931. It killed 256 people and absolutely devastated the Hawke’s Bay region. It measured 7.8 on the Richter scale, and I guess in modern times it was probably the strongest earthquake we have experienced. There were 525 aftershocks following the Hawke’s Bay earthquake, as have occurred in the Canterbury region.

The interesting thing about the Hawke’s Bay earthquake was that all the buildings in the central areas of Napier and Hastings were levelled. In fact, the Dominion newspaper of the day said that as a town, Napier had been totally wiped off the map. The death toll included 161 people in Napier, 93 in Hastings, and two in Wairoa. Of course, thousands more were injured—400 were seriously injured and ended up in hospital. The fascinating thing about that particular quake was that some 40 square kilometres of the seabed became dry land. Now when we fly into Napier airport, over the areas of Pirimai and Mārewa, we can see all the land that came up as a result of the earthquake. The Hawke’s Bay earthquake was followed by a fire in Napier. Although the earthquake damaged many, many buildings in the township, it was the ensuing fire that caught a lot more buildings. The entire townscape was pretty much devastated.

The point I want to make about this legislation tonight, in comparison with what we saw in Napier in 1931, is that the recovery effort is in a totally different space. The response to the recovery of services and people being able to get on with their lives is happening far more quickly. I think we will see people getting on with their lives far more quickly, and that is absolutely excellent. The rebuilding in the province of Hawke’s Bay took not just years but decades, but we will see Canterbury getting back on its feet extremely quickly. I am proud to be standing here tonight to support this enabling legislation to help Canterbury get back on its feet as quickly as possible. Thank you.

I begin by reiterating the assurance that I offered in the first reading and Russel Norman offered in the second reading of our intent to approach this very constructively with the Government and with other colleagues and parties. We appreciated the very constructive comments of Minister John Carter before dinner. He assured us that the Government was genuinely trying to ensure cross-party support. We appreciate that, and we give a reciprocal assurance that we are doing what we can to arrive at that place as well.

It will not be lost on members that we have our concerns with the bill. We do not dispute the need for legislative enactment to facilitate a fast recovery. There is common ground there. I happen to live and have a residence in Christchurch. We had mild damage; it was nothing compared with that experienced by the Minister, Brendon Burns, or others. I extend our personal sympathy on that basis. But we did have damage, and we have had the trauma of the experience of the earthquakes themselves and of walking around town talking to people. I feel it in the same way. I pledge the Green Party’s commitment to facilitating a fast and effective recovery scheme. Where the point of discussion is at the moment is that the Green Party deeply believes that there should not be any derogation from the usual constitutional principles of the relationship between the executive and the legislature—and, for that matter, the judiciary—simply because we are moving out of an emergency and into a reconstruction period.

It is for that reason the Greens are putting forward six typescript amendments in my name to try to ensure that the minimum constitutional requirements of the New Zealand constitution as we understand it to be are not brought into jeopardy in the rebuilding after an earthquake in one city. It is no disrespect to Christchurch, or to fellow citizens in my own city, to say that our collective interest, in which I share, in the reconstruction of our city must not come at the expense of the constitutional integrity of this country. There must not be the slightest threat of that happening. I do not think that that is being sensational at all. When we look at the extreme nature of the powers that may be ceded to the executive branch of our Government tonight, I think this is a statement that is well considered and should be taken seriously.

We rest the submission of our typescript amendments on the basis that the powers as they are established in the current version of the draft bill are excessive to the purpose. The extent to which we can narrow our differences is the extent to which we get collective agreement around the House. We will work constructively in the next hour or two on that basis. I do not accept the argumentation that the Regulations Review Committee has in place everything that is required to assure New Zealanders that the execution of the executive’s powers under the bill would be sufficiently safeguarded. We do not think that that is the case. To the extent it is, that is fine, but to the extent it is not, then the current draft of the bill needs to be hauled in a bit.

With the Chair’s permission, I will very quickly address each of the six typescript amendments that have been put forward in my name for the Green Party. They address six different points. The first is judicial review, the second is the limitation of the scope of the powers, the third is the sunset clause, the fourth is accountability to Parliament, the fifth is community participation, and the sixth is what I would call municipal transparency.

The first has been touched on. We would suggest that in clause 6(3), we add at the end of that paragraph the words “unless a High Court Judge determines that fundamental principles of justice will be compromised by not allowing a case to be heard.” I have just heard Charles Chauvel say that he does not think that is necessarily the perfect solution. Of course we are open to the suggestion of alternative wording. Members will understand that this was done hastily. We had considered the possibility of simply saying “without the consent of the Attorney-General.”

💬 Charles Chauvel: Why not delete it?

It is possible to delete it; in fact, that would have been our preferred position. I would support the deletion, but if it is not to be deleted then it needs to be qualified either by the consent of the Attorney-General or the role of the judiciary. Otherwise, the executive basically has untrammelled power under this bill. That is unacceptable. That is point one.

Point two is to do with the limitation on scope. We have touched on this—all of us. There are 22 Acts in clause 6(4). I listened to Minister Brownlee saying a moment ago that it was considered whether we could get an exhaustive list, and then it was established that we could not. It does not follow, I suggest, that we therefore open up the New Zealand statute book to potential overriding, given that there is a supremacy clause in the bill and that if an Order in Council is repugnant, contravenes, or is incompatible with any other provision of a statute except for the five constitutional Acts, it overrides them. It is a supremacy clause. We do not go from having a recognition that a list of 22 Acts is not exhaustive to having a supremacy clause over the whole of the statute book of New Zealand. That is slightly overstretching the case. I suggest that we are honour-bound to identify the Acts. If there are 22, then there are 22. If there are more, then they can be added in due course. This Parliament would not oppose additional Acts, as long as they are specific. But we should not accept a blanket executive power roaming across the statute book in the name of recovering the buildings of Christchurch. If we did—just to highlight the ridiculous breadth of the bill as it is currently drafted—as it is written, we could allow Ministers relevant to the Canterbury earthquake to have our head of State declare that rape, theft, and bribery are no longer crimes anywhere in New Zealand.

💬 Hon Gerry Brownlee: Oh, that’s ridiculous!

I know it is ridiculous. Of course it is ridiculous, and if it is ridiculous, then we should not allow it. We are not disagreeing on the reality, I say to the Minister in the chair, the Minister for Canterbury Earthquake Recovery; we are disagreeing on the constitutional nature of our obligations.

💬 Hon Dr Nick Smith: How does that meet the purpose clause?

I would not put it past Minister Smith to find a rationale.

Let us move on, because I think the Minister has just understood the point that we are getting at. With regard to the 6 months provision pertaining to clause 7(3), we suggest that there be an omission of “1 April 2012” and a substitution of “15 March 2011”. We suggest making that change in clauses 7(3), 15(1), and 17(b). We suggest that there is a further subclause, clause 17(2), which states that “… if it appears by 15 March 2011 that further reconstruction is required, the Minister, by lodging a parliamentary notice of motion, can extend the expiry provision for a further 6 months to 15 September 2011,”. I heard Charles Chauvel argue that there was no need to bring it forward to within such a short time frame. I suggest that 18 months is too long for a blanket power like that. A lot happens in 18 months. I respectfully suggest to the Minister that the Government consider making the period shorter and renewable, so that Parliament can revisit the renewable issue of the bill with good intent after 6 months or for whatever further period is required. It should be fewer than 18 months.

I understand that some support has been expressed for the insertion of the Local Government Official Information and Meetings Act 1987, and we appreciate that. We still adhere to the suggestion that more individuals from Christchurch and the Christchurch City Council should be nominated to ensure a greater local involvement in the reconstruction effort. That is an issue at the margin, but we think it is important that there is seen to be greater local community participation. As Russel Norman mentioned, the Prime Minister indicated in question time last week that he would ensure that that would be the case, so it is open to the Government to follow through with that prime ministerial undertaking.

I think it is important to note that the Canterbury Earthquake Response and Recovery Bill is the enabling legislation for the Government, as it has been quoted as saying, doing whatever it takes to get Christchurch back on its feet. This is that enabling legislation. We are passing it in as rapid a fashion as is possible in this Parliament, with round-the-House support for it. Given that there is not to be scrutiny other than this process, it is important that the Minister in the chair, the Minister for Canterbury Earthquake Recovery, who is in charge of the bill and who will be that Minister for the duration of the earthquake recovery in Christchurch, is here to answer some questions.

I would like to pose some questions, given that we as a Parliament are passing this legislation in an extraordinary way through all its stages. Now, in the Committee stage, this is our chance to ask some questions about it. I get a sense that this is a rather big rubber stamp for a rather bigger blank cheque. We know that that is important and necessary because this is the first time since 1931 that we have faced a calamity of this size and consequence. Nobody is more aware of that than I am, as the MP for probably the most affected electorate, Christchurch Central, but we need to test and check this legislation as it goes through. It provides enormous powers to the Government, the Canterbury Earthquake Recovery Commission, and the councils—Waimakariri, Selwyn, and Christchurch—as they go about the business of rebuilding their communities.

I will ask the Minister some questions in respect of the bill. For instance, we note that it provides for retrospective Orders in Council to be made in certain circumstances, most particularly where there is a need to protect actions that have been taken in the period between the uplifting of the state of emergency and the making of a relevant Order in Council. I invite the Minister to give us an explanation of some of the circumstances that might be envisaged where we might see retrospective Orders in Council. I acknowledge that we will see those before the Regulations Review Committee. That is wholly appropriate, but I would like to have an outline from him of the sorts of circumstances he envisages for retrospective Orders in Council.

We know, of course, that there will be a limitation with regard to the processes for public consultation. That is in the very nature of the bill and that is a given, but there seems to be no requirement for mayors to consult their councils, and certainly not in respect of spending priorities. I would like the Minister to outline to us in some detail the processes of consultation that will be in place for councils to advise their constituents about what they are proposing to do, in order to take matters through under Orders in Council to make rapid decisions. I think it is important that we know what sorts of processes are envisaged in terms of alerting the public to meetings, putting adverts in the paper, and alerting them to decisions that are looming.

We know that we are in a rapid time frame, but the public of Christchurch is very vociferous. It is very passionate about the heritage of our city, in particular. There are many people with good, beating hearts, who want to play a role in ensuring that the protection of heritage is a priority. It is important that they have some sense of a process where, even if it is limited and constrained by time and circumstance, they will know what the council is proposing to do, even if it is a matter of a time frame of a week or a month rather than the process that normally applies of a matter of many months of rights of appeal and a process involving courts, if one so wishes. We know we are going past that, but I think it is very important that the Minister takes a call and outlines exactly what is envisaged in respect of the process of consultation and advice to be given to constituents and councils in Christchurch, Waimakariri, and Selwyn.

I also ask a question about the changes in clause 6(4), where we have 22 separate Acts listed that the Order in Council can modify, extend, or provide an exemption from. Then it includes the words “(but not limited to)”, which potentially could be read as meaning that the Orders in Council could modify any legislation. That is a kind of breathtaking possibility, and I think that the House deserves some assurance from the Minister. If the Minister did not quite catch what I was saying, I am referring to clause 6(4), in respect of that clause meaning that potentially Orders in Council could modify any one of those 22 Acts.

I would like to deal with some of the questions that have been raised by speakers up to this point. I do not want to cut across anybody’s opportunity to ask questions, but I do not want to lose those questions either.

I go back to Mr Chauvel, who raised a number of questions. Firstly, he pointed to the Social Security Act and asked why that Act is specifically mentioned. I can give the answer very succinctly: new Social Security Act provisions come in on 27 September. The Minister for Social Development and Employment has suggested that some of those provisions may need to be suspended for the people in Canterbury. In many ways that immediately links us to the part in the bill that deals with ministerial decisions not being able to be challenged through the courts. Essentially, there is a provision made for people in Canterbury around Inland Revenue Department activities, around social welfare activities, and around a range of other things, including compliance with attendance at school and various other issues. People in other parts of New Zealand presumably could go to a judge and ask whether that is reasonable or fair. A judge may well be persuaded that it is not, and go through a process of setting that provision aside. We cannot really go through that, in this case. Although I accept that in other circumstances such a denial of the courts’ role in these issues would be inappropriate, I do not think it is here. It would become a problem only if there was a strong view that something sinister was afoot. In this case, there most certainly is not.

Charles Chauvel also raised the issue about whether more councillors should be on the Canterbury Earthquake Recovery Commission. It is worth noting that it has already been stated that the commission will be made up of the three mayors, plus one Environment Canterbury commissioner, plus three independent members. The idea of this is to get a very flat structure. One of the things that none of us who have been on the ground in Canterbury in the last 10 days can deny is that the districts did a brilliant job. They know what they need to reconstruct their areas. They know, also, that they need to corral what is business as usual—and this answers some of Brendon Burns’ questions, I think—and what is reconstruction work. In that regard, reconstruction work is something that those districts will have to engage with the Government on. Frankly, we know that the districts do not have the money to do the work. We know that they do not have a rating base that can even spread that work over a period of time. There has to be a conduit for the councils, which will each make the decisions that come through to Government. Across a district, there needs to be some equity and there has to be some understanding that if we do not repair one part of the district, the whole district will suffer. We need to see the commission as a very flat structure, not as some new bureaucracy that is coming in to tell districts how to do things.

I will also look at the way in which an Order in Council might be constructed. Firstly, it will be on something that districts identify as a problem. Districts will then report that through the commission, and the commission will engage with the Minister. We know all of this will be short-cut; we know that Ministers will talk directly to the districts. But the commission will keep an overview of all of this stuff. If there is a need to do something, the commission will then request the Minister to make the decision. The Minister will need to go to a Cabinet committee. We have already said that we will make it clear to other parties in this House if there is to be an Order in Council. People will know about it. That goes also to Dr Graham’s suggested amendment about the 24-hour notice regarding any Order in Council. At the moment, the Parliamentary Counsel Office is required to publish in the Gazette any Order in Council. The fact is that if we are changing a law we want to use an Order in Council, and we cannot use it if we do not tell people about it. There is no question that we are trying to hide from that process. There is a commitment to let people know before an Order in Council happens, and then of course it would naturally be publicised. Any suggestion that we need Dr Graham’s amendment in order to give the public certainty would achieve nothing more than what already happens. At the moment I am told that the Parliamentary Counsel Office manages to get an Order in Council out—the office probably has a longer process—in 72 hours. But in this circumstance, it will be known to members of this House before it is even taken through the process. I do not think there is any need to make that change.

I will come to a couple of points made by Brendon Burns in a minute, but I will run through the rest of Dr Graham’s proposed amendments. I have dealt with the issue concerning the High Court, and I do not think that what one might say at first glance, that denying rights is terrible, is as relevant here as it might be in other circumstances. The second is to restrict the Order in Council process to just 21 of the Acts that are listed. That is an idea, but why would we do that if all the intention here is to enable things that relate to the purpose of this bill? The purpose clause states, in 10 lines, “Canterbury earthquake” five times. It is very, very specific about what can be done. There is no way we could do something through the provisions in this bill that affects other parts of New Zealand. I will make just one proviso. Dr Graham has also suggested that we might look at restricting it to the districts of Waimakariri, Selwyn, and Christchurch. The difficulty there is that the Kate Valley landfill is outside those districts. No matter which way we look at it, the Kate Valley landfill will be under significant stress as a result of this disaster. The road slip that blocked the northern highway, along the Kaikōura coast, was the result of this activity, and I do not think we should constrain ourselves when it is quite clear that something relates to the activities of the last 10 days.

In that regard, I think it is also worth noting that we are still experiencing a considerable number of aftershocks, and we do not quite know when that will end. What we do know is that we are getting on with making sure that things come back together as quickly as possible. In that regard, Dr Graham has suggested that we should come back to 15 March 2011 as the expiry date. I think it is fair enough that this amendment is put before us, because we have to be comfortable about however long this legislation runs for. The Government is saying we should give it 18 months. We all know what it is like. We have councils that are, at the moment, in a state of—I have to be careful how I express this; they have done a huge amount of work over a short period of time. Someone told me the other day that in Christchurch, City Care connected as many water connections in 3 days as it would normally do in a year. That is because it is focusing on that job. It does a lot of other things during a normal year. The output from organisations such as that has been extraordinary. We need to give them time to think about what will be business as usual, and what infrastructure, which is only patched up the moment, they need to go back and repair. Anyone who has seen any roadworks done these days will know that that work takes time.

If we look particularly at Kaiapoi, that area has very deep sewers—at least 3 metres below the road. People there know that their sewers by and large, under normal circumstances, are below the water line. They know that they have to dig down, they have to sheet-pile, they have to de-water, and they have to go block by block by block to get the work done. As they go along they could well discover other problems that they had not anticipated. I think we need to indicate to residents throughout the wider Canterbury region that infrastructurally it could be 18 months before it is certain that we can say that we are so far down the track that we do not need these extra provisions. During that time also, if there needs to be stronger legislation for one aspect of this work, or another, then clearly this House will want to consider it.

I dealt with the issue of the Christchurch City Council. We are not trying to set up another bureaucracy. We are trying to create something that is flat, recognises the knowledge that exists in the districts, expresses confidence in their ability to plan and achieve what we want in terms of recovery, and makes a commitment to work with them. Essentially that is what the commission is.

The other issue that comes to mind is that of the application of the Local Government Official Information and Meetings Act. At this time further consideration is being given to that question. The response may come in the form of a Supplementary Order Paper later this evening, but if it does not, I give an absolute commitment that, as the terms of reference are developed for the commission, we will want a degree of openness. But I stress that decisions made by the commission will be generated from the districts. When we think about the structure being put in place, we realise that the districts will be making their own determinations about what is business as usual and what is recovery. Through the auspices of the commission there might be consenting processes that relate to recovery, but those questions will be dealt with by the districts. We are not setting up a new agency. The normal processes that are already in place in those districts will apply. I suspect that a large number of early decisions made by the commission will be commercially sensitive, and I think we have to be very careful about the encumbrance we put upon those commissioners, who are essentially the local mayors and three others, in respect of that issue.

I will now talk about Mr Burns’ concerns about some retrospective Orders in Council. The clearest and easiest one to understand is to do with discharges. Let us take the case of the sewer at Kaiapoi, and the process of putting that sewer back together. If some of the infrastructure that we know must be weak in that system—so much is broken that more in the system must be pretty weak—collapses as a consequence of restoration work and there is a discharge, theoretically there should be a 21-day process to get a consent to enable that discharge.

💬 Hon David Parker: Oh, it would be an emergency. You’d use the emergency plans you’ve already got.

Well, that is why we are having this bill. The fact is that under the state of emergency that would be right, but the state of emergency gets lifted tomorrow. I am surprised that the Hon David Parker who is such a stickler for the letter of the law is now waving his head and saying we should not be so pedantic. We live in a pedantic world, for goodness’ sake, so we are making sure there is no difficulty with those problems. I think the commission is the right vehicle for councillors to engage with Government, and the commitment from the Government is that the engagement will be as inclusive of this Parliament as possible.

I take a call to make two points in response to the Minister in the chair, Gerry Brownlee, who has just resumed his seat. One relates to clause 6(3) of the Canterbury Earthquake Response and Recovery Bill. The Labour Party would prefer to see that clause omitted in its entirety. With respect, the Minister’s suggestion that somebody might go to court and suggest that the powers to be exercised in one part of a country should not be exercised in Canterbury, and therefore that clause 6(3) is necessary, really does not satisfy the question that was originally raised. It would be good if the Minister would reconsider the existence of clause 6(3).

The other point I make is in reference to the Minister’s undertaking that the Canterbury Earthquake Recovery Commission will be subject to appropriate standards of transparency. He said a Supplementary Order Paper on that issue might be coming to the Table or, failing that, it would be dealt with in the terms of reference of the commission. I point out to the Minister that there is an amendment already on the Table that would make the Local Government Official Information and Meetings Act apply to the commission. The amendment is in the name of Kennedy Graham, and it is to insert new clause 9A into the bill. The Labour Party intends to support that amendment. It is an appropriate one. The Minister has agreed with the tenor of it, and I urge him and his party to vote for it.

I rise to take a very brief call on the Canterbury Earthquake Response and Recovery Bill, and to mihi to the people of Aoraki and Canterbury. The rest of us have lived through a time very different from theirs, and those of us who have not been shattered by an earthquake need to acknowledge what a tough time it has been. I was in Gisborne during the 6.8 earthquake a couple of years ago, and that felt really bad, but it was clearly nothing compared to what the people of Aoraki and Canterbury have been through, so we need to acknowledge them.

I also support the comments that Dr Graham and other members have made about this legislation. It is important to look at the long-term implications of the bill, and that is why we are calling for an amendment that would include a sunset clause for a review after 6 months. That is not to say that the legislation could not be extended after that period, but in extraordinary times such as we are in now, we need to be extraordinarily vigilant about the kind of planning and decision making that we facilitate. When I look at the Acts that have been mentioned, the provisions of which could be suspended under this legislation—such as the Resource Management Act and the Historic Places Act—I see certain red flags that we need to think about. We will be dealing with enormous amounts of infrastructural development and change, as well as waste and waste disposal, and that has implications in terms of resource management for many years.

The Minister mentioned the issue of sewage discharges, which is a problem I have spent much of my life glamorously working on! Under section 107 of the Resource Management Act, we currently have an exceptional circumstances provision that allows for the emergency discharge of sewage, so we may not need to suspend holus-bolus all provisions of such Acts. That exceptional circumstances discharge measure has been misused. It has been used to enable 40 years of pollution in the Bay of Plenty. I am not suggesting that is the intent of the Minister for Canterbury Earthquake Recovery in this bill; I know it is not. But when provisions such as that exceptional circumstances provision are already in existence under the Resource Management Act, we have to be careful about suspending existing legislation.

Equally, in the case of the Historic Places Act one can envisage a situation where an area that is an archaeological site, for example, could be in an area that has been damaged and could be destroyed without any kind of survey. We would lose forever the archaeological knowledge that the Historic Places Act was set up to protect. In our haste to rebuild we could lose the essence of some of the key aspects of our communities.

The Minister said quite rightly that the landfills will be under enormous stress. If so, will we dump the range of hazardous waste with the range of ordinary waste? That is the kind of thing that has happened in the past in landfills.

Huge issues of planning and decision making urge us to have caution as we debate this legislation. We have nothing to lose by supporting the Act, which we would like to do, and ensuring that within 6 months we stop, wait, and ask our communities whether the process is on track, whether we have made good decisions, and whether we are doing the right thing. Some of us are concerned about community voices. As Minister Turia mentioned in the first reading, we are concerned about representation of Māori on the commission. We have already had the debacle in the Auckland governance legislation on the representation of tangata whenua, and we do not want that to happen again. In the rebuilding of a vibrant city we need the voices of tangata whenua, we need to have community planning, and we need to have a review process. Before we start holus-bolus getting rid of the powers that have been developed under certain Acts, we need to think about the long-term environmental conditions we are creating. The last thing the people of Aoraki and Canterbury need is to have long-term problems built into our desire, with the best of intentions, to create emergency legislation that is not well thought through.

We hope that some of our amendments will be adopted. We think it is really important that we consider what could happen if they are not adopted, and consider the importance of planning carefully. This is not a time for any form of paternalism; it is a time for engagement with local communities, and that is what this Act needs to be about. Much of it is about that, but we have concerns about the sunset clause. We have nothing to lose by limiting the lifespan of this legislation to March 2011, when we could review the legislation and those issues. Tēnā koutou katoa.

I will make some comments about clause 6 of the Canterbury Earthquake Response and Recovery Bill, and in particular the impact it may have on building and construction. Let me say first that a very fine barber was interviewed on the TV3 news about the aftermath of the earthquake. He said the thing I think has been on everybody’s mind for the last 10 days—that is, how wonderful it was that no one died. Certainly, that is a thought I know I have had virtually every single day since the earthquake. A number of commentators have pointed out that 230,000 people died in Haiti after the earthquake there, which was of a similar magnitude. I think the fact no one died and the destruction caused by the quake was relatively localised really was a triumph for the building code. It was a triumph for regulation.

I know that members on that side of the House like to use words like “red tape”, “bureaucracy”, and “paperwork”, but what we are talking about is regulation. They are minimum standards that enforce a community consensus about what is acceptable. The building code is the representation of those minimum standards. We have learned a lot in the last couple of decades about the importance of building regulations. I think we should have a national celebration of successful regulation. I hope the members of the National Party will join us in putting on a tickertape parade for regulation, because do members know what? Regulation saved thousands of lives and billions of dollars in the Christchurch earthquake. That is relevant to this bill because this bill sets out to provide some pretty powerful exemptions in the recovery phase from certain important bits of law that we have in this country that regulate all manner of things, particularly building and construction.

It is very clear by now that Labour is supporting this bill. We recognise that in the recovery phase there is urgency to repair and rebuild. I am mindful of how amazingly disruptive the quake has been for everybody in Canterbury. I am particularly mindful of how disruptive it has been for low-income families and people without the resources that act as a cushion in these kinds of disasters. There are people who have had to move out of their homes and who do not have the reserves to be able to just find an alternative property. There are thousands of people currently in that situation, so there is a need for speed. It is not about just people’s homes; it is about businesses that people are dependant on for their jobs and their livelihoods. The case has been made and I think it is very clear.

I will ask a couple of questions of Minister Brownlee, particularly in relation to clause 6, the provision allowing Orders in Council. I am interested to know how he envisages that will play out. I imagine that in relation to, for example, the Building Act, clause 6 would allow an Order in Council that would exempt certain buildings in a certain zone over a certain time period from needing a building consent for repair and reconstruction. If that is the case, how does the Government propose that the protections and the quality outcomes, which the Building Act and the consenting regulations are there to protect, will be delivered? I do not think anybody in this House this evening has a problem with the idea of streamlining the regulations to allow for urgency and for the process of repair and reconstruction to be expedited. I am also hoping that nobody in this House cares nothing for the quality of the reconstruction and repair work, and the need to ensure that basic standards of quality work are done in the repair phase.

My colleague Ruth Dyson mentioned before an opinion piece in the Press today by former Mayor of Christchurch Garry Moore. In his inimitable way he made certain comments about the rebuilding, particularly of the central area of Christchurch. I was there last night in a meeting with Brendon Burns and 300 people. They were concerned about the urban design standards in the rebuilding of central Christchurch, particularly the protection of heritage buildings. Garry Moore said: “We should learn from what was wrong with what we were living in before September 4, 2010, and rectify it. We should not rush legislation so that we fill the holes in our built form with cheap and nasty junk.”

I venture the opinion that this bill, in its desire to streamline and expedite, does not provide any useful tools, regulation, finance, or anything else that will make it easier for the people of Christchurch to do what is an incredibly important job, which is rebuilding the central city. The heritage area is important to the people of Christchurch, and it is also an economic asset for the region and the country. I am interested to know what the Minister has to say about that and what ideas the Government has for how it can work with the people of Christchurch and Christchurch City Council in particular to see that that rebuilding happens in a way that supports the aspirations of the people of Christchurch and facilitates the highest-possible urban design standards in that process.

In saying that, I speak in favour of the amendment that was initiated, I think, by Jim Anderton and is proposed tonight by the Hon Ruth Dyson to insert clause 3(b) “acknowledging that an important priority for the response is to enable the preservation and restoration of Canterbury’s architectural and cultural heritage”.

I would like to clarify a couple of things. Firstly, on the Building Act issue that the member Phil Twyford just raised, I said earlier in my second reading speech that if we look at building activity for the whole of New Zealand in the last calendar year, we see that it would take the total focus for some years of every consenting officer in the country just to deal with the consents that may come out of this disaster. So, quite clearly, business as usual will not work. I am very happy to involve local MPs, to let them know where we get to with all this later in the week; we will be running a standard briefing each week at 9 a.m. on a Friday, so that everyone gets tuned up as to where things are going and what is happening. Essentially, the moving parts here are, firstly, the Building Act with its standards, which are important. The second aspect is the quality of the tradespeople who will do the work. The third is the supply chain. The fourth aspect is the process of consenting to work, which includes the issues of inspecting and signing off on work. What sits under all of that is the property information memorandum, which for residents in Christchurch will be the enduring record of how well the damage is dealt with.

I do not think it is the desire of anybody in this House to see property values written down in future because of shoddy work practice during the next short while. I can give the member an assurance that it is the Government’s desire, as I know it is the House’s desire, that we come up with processes—and I say “come up with” because we simply do not know what they will be at this point. There are too many aspects of this recovery that need to be considered: lenders, insurers, the Earthquake Commission, and council consenting processes, as well. But when all of that is dealt with, I hope in a few days’ time, we will be able to give people a clear understanding of how they can get high-quality work done and paid for quickly. That is the intention around the reference to the Building Act and all the other Acts that are named in the Canterbury Earthquake Response and Recovery Bill. It is a genuine attempt to give a list of the sorts of Acts that may at some point need to have a temporary arrangement applied to them.

I will talk to an amendment on the Table in the name of the Hon Ruth Dyson to appoint a recovery coordinator to carry on the powers of the civil defence coordinators, should that be necessary. The problem I have with that is that we are saying the civil defence coordinators have done a great job. They have got us through a tight time. They will in the next day or so stand down, and we will go into the normal processes of district councils running the areas. The chief executives in each of those areas will be putting together their recovery teams, which have been well organised over a long period of time. To have an individual step over the top of them for any long period is, I think, not acceptable. It goes quite counter to the concept of having a flat commission structure that recognises the fact that people who live in Canterbury generally do not like to be told what to do. There is resilience in the Canterbury community. It is self-reliant, and it is very, very parochial. It would serve no good purpose, and it would certainly not stand as any encouragement to Canterbury, for us to appoint or to prescribe in law the need for a recovery coordinator.

I am quite convinced that if the commission itself sits down and says the best way to deal with matters is to collectively set up an organisation that deals with them without expanding the commission as a legal entity or anything like that, then it will do so, because it has a huge incentive to get its communities up and running. It has as big an incentive for that to occur as anybody has who stands in this Chamber.

💬 Hon Ruth Dyson: Will they able to instruct?

The member asks the right question by way of interjection: whether the commission will be able to instruct the councils. The fact is that the mayors are the commission, effectively, so I do not think there is any impediment to that occurring. But it is very important not to undermine the capacity that exists within the local authorities to get this job done, because I cannot think of anywhere else we could go in order to pick up an organisation to do this work. We are reliant on the councils. We have to empower them, and we have to trust them to do the job.

On the issue of clause 6(3), I just say it deals with the courts’ power to look at recommendations for the making of an Order in Council, not with the Order in Council itself. It stands there as a prohibitive measure. We all know that there are many examples of the courts choosing to look through those orders. In essence, it says to the courts that if there is silliness around a proceeding, then there is no obligation through any other provision for them to continue with it. If it was totally outrageous, I have no doubt that a judge would be prepared to look through this particular provision in the bill. If someone takes an issue to a lawyer and asks whether they can have a crack on it, then the lawyer will have something to fall back on to say that it is not a good idea to do so. It is a mitigating aspect. As I said before, we need to see this bill in the light in which it is presented—with the goodwill of members and the desire to get the best outcome for the people of Canterbury—not as a tricky move to apply all sorts of powers to a range of other things.

I finish by saying the 10 lines of the purpose statement include the words “Canterbury earthquake” five times, which makes this provision very specific and shows a very specific link to the powers within this legislation.

In speaking in the Committee stage of the Canterbury Earthquake Response and Recovery Bill I want to address a few issues. I say to the Minister for Canterbury Earthquake Recovery that I totally accept his good intention, and the Government’s good intention, on this. But the argument that the Minister is using for not including more specificity in certain parts of the bill is that we will sort it out as time goes on and we will find common-sense and practical solutions, working within an extremely broad legislative framework. I certainly accept that that is the Minister’s intention.

However, I draw an analogy to the earthquake regulations with regard to buildings. Many people who build buildings would say that they have really good intent and will build a building that can withstand an earthquake, so they do not need all these pesky regulations and all these pesky building inspectors who annoy them all the time. They know how to build buildings that can withstand an earthquake. That is the kind of analogy I would use in terms of this legislation.

The Government seems to be saying that it has the right intention and knows what it is doing, and it does not need all of these pesky regulations or details in the legislation about how to put together the right kind of regulatory framework. But I say that it is quite important that in order to protect constitutional niceties and people’s rights we have some of those details. The Government has acknowledged some of those details, but there are a couple that it has not. One is how to ensure that the majority of the Canterbury Earthquake Recovery Commission are elected Cantabrians. Why is it not in legislation? Currently three out of the seven are elected Cantabrians—they are the three mayors. Four commissioners have been appointed by the Government—one is the Environment Canterbury commissioner, and there are three other commissioners. The result of that is that four, or a majority, of the recovery commission have been appointed by central government, while a minority are elected Cantabrians. Why not put it in the legislation that a majority of the recovery commission are to be elected Cantabrians?

I think the Minister is quite right: people in Canterbury want to maintain control of this process, they want to lead this process, and what better way to do that than to put into legislation that a majority of the people on the commission are, in fact, elected, whether they are city councillors or mayors. This ensures that central government does not have the majority on the recovery commission, which is what the legislation currently provides. The way that the legislation is currently written provides for the majority of those on the recovery commission to be appointed by central government. It may be the Government’s intention to ensure that some of those four appointees are elected councillors, which would be great, so why not put that provision in the legislation so that everyone can be comfortable with ensuring that a majority of the appointees on the recovery commission are elected?

With regard to the Local Government Official Information and Meetings Act, the Minister has indicated that he intends to come to us with a Supplementary Order Paper on the application of the LGOIMA—that rather long acronym—to the recovery commission, so we look forward to seeing that. With regard to the 6-month process, the Greens have suggested 6 months and we have put in a process for easily rolling it over, which would just be a notice of motion within that process. Once the 6 months is up for this particular legislation, we could then put forward a notice of motion to extend it for a further 6 months. It would be a relatively simple process; it would not have to go through a whole parliamentary debate once again, as normal legislation does. It would simply need a majority for a notice of motion, which would be a pretty simple process and would ensure that the executive is kept on a pretty short leash by the Parliament, which seems to me to be one of the constitutional niceties that we want to hang on to.

Then we come to clause 6(3), which states that the process of coming up with the recommendations for Orders in Council cannot be challenged in the courts. The Greens are proposing an amendment to this clause, so that these Orders in Council can be challenged by the courts if a High Court judge determines that fundamental principles of justice would be compromised by not allowing a case to be heard. We are trying, in a way, to put in writing what the Minister himself said in his contribution, which is that a judge will find a way to do it. The Minister said that if there was a serious breach of the principles of justice, there would be a judge who would find a way to read this clause in a different way, so as to look into it.

If the Minister believes that to be the case, then there is nothing wrong with making it clear within the legislation itself that if fundamental principles of justice could be compromised by a particular decision, then a High Court judge could allow a case to proceed. That is writing into the legislation the kind of situation that the Minister himself said was a potential reality. Again, the Minister will say that that could happen anyway and, of course, it could. But I ask why we do not write it in black and white so that we do not have to bend the law, in a sense, in order for a High Court judge to look at it. We could put it in the legislation, with the expectation that if there are fundamental principles of justice involved in a decision, a recommendation, of a relevant Minister for an Order in Council, then a High Court judge could look at it. That seems to me a way to acknowledge the reality of the situation, and for Parliament to acknowledge what is going on. For those reasons the Green Party will continue with its amendments in the name of Kennedy Graham to try to make this legislation responsive to those issues.

Charles Chauvel talked at some length about the regulation disallowance procedures. I acknowledge that Labour has gone to some length to try to make sure that the Orders in Council fall under those procedures so that there is some degree of accountability. We have pushed for a more direct publishing of Orders in Council to make sure that it is in black and white in the legislation, so that they have to be published within 24 hours. The Minister has said that it is an act of goodwill that Orders in Council will come before members of Parliament before they are enacted. We accept that it is an act of goodwill, but we say why not put it in the legislation so that it is in black and white that they have to be published within 24 hours. Everyone would then be comfortable that everyone knows what the law of the land is, because these Orders in Council are effectively making law through an Order in Council. If they were published, if they were made public within 24 hours, then everyone could be sure what they are getting into.

Also, in terms of tabling in the House, under the Regulations (Disallowance) Act they need to be tabled in the House within 16 sitting days of the promulgation of an Order in Council. Sixteen sitting days is more than a couple of months. We are saying that we should require them to be tabled the next sitting day, and that way everyone in the House can see what they are doing. The Minister says that he intends to table them anyway, or to make them publicly available, so I cannot see what the problem would be with putting it in the legislation in black and white. Thank you.

I congratulate the Minister, the Hon Gerry Brownlee, on listening very carefully to the views expressed in the Committee tonight, considering them appropriately, and responding to them. He has not responded to all of them yet, but I am sure he will finish—[Interruption] Only one of my three amendments was commented on. I was hoping he would comment on all three.

💬 Hon Gerry Brownlee: I didn’t want to embarrass you with the other ones.

I thank the Minister for that contribution. We were doing so well in our bipartisan approach until then! But I am pleased to see that all the issues have been taken seriously even if they are not agreed on.

I want to start with the amendment in my name that the Minister has referred to, and that is the amendment to add paragraph (c) to clause 10. It states: “appoint a recovery co-ordinator to be appointed to carry on the powers of a civil defence controller, should that be necessary.” The reason I have put forward that amendment—and it is surprising that the Minister has disregarded it so swiftly and said that the local authorities do not need it—is that our three mayors made a joint statement to say that this position lapses when the emergency provisions lapse, at this stage still at midday tomorrow, and that the mayors of our three regions would not support this legislation as they had seen it in draft form if such a provision was not included.

I thought that the Minister might have overlooked it in his haste. He has had only a few hours, really, to think up the bill, put it together, and do all the work and consultation with other parties. I thought he might have omitted it. The mayors have put out a statement that is on the wire now as being the most current position they have on the legislation. In their view, the appointment of a controller who has the ability to direct rather than to suggest could be a critical factor in the success of our recovery plan. I was amazed that the Minister concluded that the mayors would be able to do that. A mayor cannot direct an organisation outside his or her own local authority to comply with his or her wishes even if the mayor is appointed a commissioner, because the commissioners in this legislation do not have that authority. In my view there will be some situations where the ability to direct is important. The civil defence position seems to me to be the appropriate one, and that was certainly the point the mayors made. I look forward to hearing from the Minister as to whether he has overlooked the statement by our three mayors that they considered that this legislation would not be supported by them unless that position was included in it. The Minister may have more news than me. He may have spoken to the three mayors on that particular point more recently than their press statement indicated.

The second amendment I want to refer to is in my name, but I am putting it forward on behalf of the Hon Jim Anderton who, as we speak, is in Christchurch hosting a public meeting about the historic buildings and the architectural concerns many have raised. He is starting the community conversation about the vision we need to talk about and share with regard to the future shape of our cities. My amendment would insert in clause 3(b) the following words: ‘ “acknowledging that an important priority for the response is to enable the preservation and restoration of Canterbury’s architectural and cultural heritage.”, after “to the Canterbury earthquake”.’

This is quite a significant omission from the original legislation, and it seems to be one of the most important concerns that is being raised in our community at the moment—what will Canterbury look like in the future? We have already seen a lot of our historic buildings threatened. Some have already been pulled down. There has been huge debate about whether they were pulled down too early. If the commission has no guidance at all from this House about what we see as important with regard to our architecture, our heritage, and our historic buildings, then it would be correct in presuming that Parliament did not care about it—because we did not put it in the legislation. In my view it is critical that we have the backing of the entire House for that message to go from here to Canterbury and to the commissioners. So that addition would resolve that omission.

The final amendment in my name amends clause 11, and it would resolve the situation, which I mentioned in both the first reading and the second reading debates, with regard to the skills that will be required of the commissioners. When the Government abolished Environment Canterbury, our democratically elected regional council, at least it put in the replacement legislation a description of the skills it thought would be necessary in order to do the job—the job that we previously voted for but which we now have appointed commissioners to do. But at least a skill set was described in that legislation.

This legislation does not have that, and in my view it would not only be useful guidance from the Minister to have a view from Parliament about the sort of skills that we consider the commissioners should have but also be another opportunity to send a message to New Zealand, in particular to Canterbury and the commissioners themselves, about what we think are important roles for them to undertake, and what we think are priorities.

I have prepared a list, and I would be very happy for the Minister to make any deletions or additions. I would be interested to hear whether he thinks the list is too long, or whether he does not think we will be able to find people who have that range of capabilities or whether some skills are more operational skills and expertise that he might consider less appropriate in commissioners but more appropriate in staff. I would be really happy to have that discussion and to alter my amendment accordingly rather than see the entire list voted down by this Parliament, which I think would remove the opportunity for that skill set to be defined and for that message to go to our home territory.

The list of skills I consider important to have in the legislation include knowledge of civil defence matters, tikanga Māori as it applies in the Canterbury region, knowledge of the Canterbury region itself and its people, public health issues, water resource management, heritage architecture, small and medium enterprises, and infrastructure. That is quite a big range of skills, but they are all really important. They are not in any particular order of importance in terms of the ranking I have given them—they are just (a) to (h)—but they are certainly the skill set that I think needs to be defined not just in terms of this debate but also in the legislation.

The final point I want to make in the Committee stage is that I had a very useful discussion with the Hon Nick Smith in relation to an issue that is mentioned at the very start of this legislation, in clause 4. Clause 4 defines the Canterbury earthquake. People will probably say “Well, that’s blindingly obvious; we’ve heard about it on the news.” I know it has been mentioned a couple of times outside our region—it is certainly all we talk about at the moment in our region—but the Canterbury earthquake is defined as “the earthquake that occurred on 4 September 2010 in Canterbury, and includes all of its aftershocks”.

Minister Smith is far more qualified in this area than I will ever be, because of his training at the finest university in the country—[Interruption] except for medical studies. He has assured me that the second earthquake, which was on Wednesday, 8 September, is counted as an aftershock. We do not count it as an aftershock; we count it as a separate earthquake. I want assurance from the Minister that the earthquake that was centred somewhere near the Lyttelton Harbour Basin and certainly had a huge impact on Lyttelton, Diamond Harbour, Governors Bay and Heathcote Valley, compared with the first quake on Saturday, is covered by this legislation. It would be a silly oversight if it were not. It does not seem to me to be defined in that way, because we have been told that it was not an aftershock and that it was a separate earthquake from a separate fault line. I have no idea how many thousands of years ago there were tremors along that fault line—compared with the 16,000 or 17,000 years or whatever in respect of the one centred on Darfield—but I would like the assurance before the conclusion of this debate that that second earthquake is covered by clause 4, the interpretation clause.

I know that the time is getting on and we are keen to progress this legislation through to its conclusion. I heard Dr Russel Norman mention that the Minister has a Supplementary Order Paper coming with regard to the coverage of the commissioner’s activities under the terms of the Local Government Act. I have not seen that Supplementary Order Paper yet. I am keen to see it before the conclusion of the Committee stage. [Interruption] That will be excellent, I say to the Minister. I hope it is tabled soon. It is not tabled yet, by the look of it. It is not on the Table. I am very keen to see it so that we can support it if possible. I also look forward to the Minister responding to my other two handwritten amendments.

Firstly, the issue of the controller: I think the mayors’ position was misconstrued in the reports that came out late this afternoon. As I have said all the way through, I see that position—that of the mayor of each of the districts being the leader of the district council of his or her area—as being pretty pivotal to the success of the recovery. I was sufficiently concerned about the reports to have a telephone conference call with the mayors this evening. They have all assured me that that was not their position, and that there had been a miscommunication. None of them is reported directly as having said that; it was just attributed to them. They have made it very clear to me that they are comfortable and very encouraged by the legislation that the House is dealing with tonight.

I move to the amendment relating to the desire by Mr Anderton to see heritage mentioned in the bill. The first point is that the heritage decisions in each of the districts are still the responsibility of the district councils. I point out that in the part of the Canterbury district where that seems to be most contentious—Christchurch city—a new bylaw was passed, I believe, on Monday evening, to afford and accord extra protections to heritage buildings. I think that it is best left in that space. As far as the Government’s contribution to ensuring that heritage buildings are, where possible, maintained, there will be a statement from the Prime Minister on that in the next day or two.

As to clause 11, in relation to the skills required for commissioners, well, there is a nice long list there; I do not think we have to prescribe it. I think that if this thing is going to work, people will have to instantly see that there is capacity there. I would say that I do not think we want the Canterbury Earthquake Recovery Commission to be any more political than what we will get anyway, with three mayors. Ultimately, if things spun out, the chair of the regional council in the meantime is a commissioner, so I do not think that prescribing that is necessary, and it is not something that we will be supporting.

On the Lyttelton earthquake, I have had the same advice—that it was part of the series of aftershocks. We could argue this stuff around the tracks forever, and I heard on the news tonight that the first earthquake was actually a small one that triggered the next one, which was the big one on Saturday. I think that geologists are discovering more even as members of this House are passing legislation tonight, and I do not think there is any doubt about any damage that has come from the seismic activity in the Canterbury region in the last short while. Let us be clear about the fact that while we are still having aftershocks, there will still be damage, and I think there is no question that the Lyttelton earthquake is included in that.

I hope that I have covered most of the points. I will make the final point that I have put forward a typescript amendment that will make the Canterbury Earthquake Recovery Commission an organisation for the purposes of schedule 1 of the Official Information Act.

The question was put that the following amendment in the name of the Hon Ruth Dyson to clause 3 be agreed to:

to add to paragraph (b) “acknowledging that an important priority for the response is to enable the preservation and restoration of Canterbury’s architectural and cultural heritage”.

Amendment not agreed to.

The question was put that the following amendment in the name of Dr Kennedy Graham to clause 6 be agreed to:

to add to subclause (3) “unless a High Court judge determines that fundamental principles of justice will be compromised by not allowing a case to be heard”.