Hurunui/Kaikōura Earthquakes Recovery Bill

I think that the members of the Local Government and Environment Committee, who have sat on this over the last week, are just about asleep on their feet, so were wanting someone else to take the first call and cover the general, and then just pick up the little rats and mice that were left. Could I begin by thanking Minister Brownlee. Minister Brownlee came to the committee yesterday to try to resolve the issues that were left outstanding after our deliberations, and was very reasonable in his dealings with the committee, and I think that is why we have got to the point when there is near-unanimity around the terms of this bill.

Could I say a few things about it. Firstly, the content of the bill is informed by the experience in Canterbury and by the report of the Regulations Review Committee, pursuant to the inquiry that Parliament requested the committee to do into how far regulation-making powers ought to go if you have emergency legislation following an earthquake.

The central proposition of the Regulations Review Committee, which reflected an earlier finding from years back from the Law Commission, is that it is actually impossible to have legislation passed in advance that covers all of the potential eventualities arising from a large disaster like an earthquake unless the empowering legislation is so broad that it would potentially confer, in the event of a disaster, powers to the executive that are broader than necessary. And for that reason, when we have an earthquake, it is necessary to have bespoke legislation to address the powers that are needed.

As I said in the first reading of this bill, my view on these sorts of powers is the same as it is in respect of taxation—as little as possible but as much as necessary. So the philosophy that I and the Labour Party took to this select committee is that we needed to give the executive as few powers to override primary legislation as is possible but as many as are necessary. With that in mind, I think we have largely achieved that. There are two aspects that I do not find perfect, which I will refer to—we are not voting against the bill on that basis—but in the main I think the select committee, with the help from officials and submitters, has got to a reasonable place.

There are some changes that have been made by the select committee that are detailed on Supplementary Order Paper 255, which has now been tabled by the Hon Gerry Brownlee. Because of the pressure of time, there was no time for the Parliamentary Counsel Office to prepare a revision-tracked version of the bill and, therefore, the changes proposed are set out on a Supplementary Order Paper. A lot of them are pretty technical. Denis O’Rourke made some useful suggestions for changing the purpose clause. That has been incorporated in the bill.

Officials, with scrutiny from the select committee, found that there were a number of Acts listed in schedule 2 that did not, in fact, need to be in there. I should at this point say in respect of that list that the way in which this legislation deals with it compared with the Canterbury legislation is that instead of having a list of a few Acts that cannot be overridden, like the New Zealand Bill of Rights Act, and then saying that anything else can be, this bill is more restrictive in that it sets out a list of the Acts in schedule 2 that can be overridden, but it still has a list of a few Acts, like the New Zealand Bill of Rights Act, that never can be.

The two areas that I was not completely convinced by at the select committee were also raised by some of the submitters, like Professor Andrew Geddis and also, in one case, the New Zealand Law Society. The first of those two is that I do not think there is a need to oust the jurisdiction of the court. It is true that there is a residual ability of the courts to hold illegal an Order in Council overriding statutes that are plainly outside the terms of this bill—so that would happen, for example, if the Minister attempted to override an Act that is not on the schedule 2 list.

But I, personally, think we should not be at all limiting judicial review rights. The bill does limit judicial review rights around process decisions and other decisions that the Minister takes under the Act. I do not think that was necessary. There is already a very wide discretion for the Minister. The test of his decision making is a subjective one—it is not an objective one—which gives him great latitude, and I do not think we should be scared of the courts having a judicial review function that is not proscribed in any way.

For example, some of the concerns that you would get an activist court, I think, are misplaced. If there was an application to challenge the validity of a Minister’s decision under this legislation, that application does not stop any process. It is only if the court grants a remedy that it would stop a process. Even then it is unlikely that the remedy would be an injunctive one if the Government was saying: “Look, this is necessary in the face of an emergency or a situation post-earthquake.” In any event, the select committee has gone so far as to clarify that there is a residual judicial review right; it is just not as broad as I would have liked.

The other issue—before I sit down—is the geographic breadth of the legislation. It includes already the Wellington region. The geographic impact of this bill is potentially from the Waitaki River to the north of the Wairarapa. When the serious parts of this earthquake sequence have been around Kaikōura, it seems to me to be an unnecessarily geographically broad area—a number of submitters made that point. I would have preferred that we narrowed it. If you are going to have such a long list in schedule 2, as we have got, it is hard to see why those powers should be conferred in respect of the Wellington area.

I know that there are people concerned that we could yet have another large earthquake in the Wellington region and they would like to have the capability to invoke those powers should that terrible thing happen. I think you wait until that sort of thing happens before you confer those powers rather than confer them in advance. However, as I have previously said, I accept that the Minister who has had broad powers under the Canterbury legislation has not misused them, and with those comments I note that the Labour Party members will be supporting the bill.

Tēnā koe, Mr Chair. I am pleased to take a call on the Hurunui/Kaikōura Earthquakes Recovery Bill. I will just say before starting that the Green Party is thinking of the many people in Indonesia’s Aceh Province. Certainly, there has not been the destructive tsunami that there was in 2004, but hundreds of people there have lost loved ones and a lot of people have suffered serious injuries, so we are really thinking of the people in Indonesia suffering as a result of that massive earthquake.

I think too of the people of Kaikōura, South Marlborough, and North Canterbury as they are struggling with their damaged homes and with how to rebuild their businesses without State Highway 1 and the visitor traffic that that provides. Can we assure them that here in Parliament we have been dealing with this legislation, trying to get it through as expeditiously as possible, and the select committee and officials have worked very hard on that.

I would certainly like to recognise the work of officials in the Department of the Prime Minister and Cabinet and the officials they have consulted with from the Ministry for the Environment and others, the select committee staff of the Local Government and Environment Committee, parliamentary counsel, and everyone who has put a lot of energy and very careful thought into this bill. Not least, I acknowledge the Minister and his preparedness to engage with the select committee as a result of our consideration of our submissions and thoughts around the bill. I think that this bill, even though it went to select committee for only less than a week and submissions were open for only a working day or so, highlighted once again the value of the select committee process, because the bill has come back to the House through the Supplementary Order Paper process with a number of changes as a result of submissions and as a result of the committee’s consideration.

As Mr Parker noted, and as the Regulations Review Committee discussed in its report, some have certainly suggested that it would be desirable to have legislation around recovery from a national emergency prepared as much as possible in advance. Certainly, superficially, that is attractive because it means that the issues are considered in a reflective and a measured way, but I think the shortcoming is that because such legislation is generic, it would have to provide very broad powers and, potentially, larger powers than are needed. So, even though it means that people are working under pressure, I think with this bill bespoke legislation is better because there is focused attention on the powers that it should provide and the situation that it should respond to.

I certainly acknowledge the Green Party’s appreciation of the work done by the Regulations Review Committee in finalising its report Inquiry into Parliament’s legislative response to future national emergencies. That was a very good series of recommendations that I think assisted the Local Government and Environment Committee, particularly because it built on the work done by the Law Commission.

The Green Party has considered this bill very carefully. Like everyone, I think, in the Parliament, we are reluctant to support legislation that allows the executive through Orders in Council to modify, suspend, and override primary legislation with no opportunity for parliamentary debate, public submissions, or scrutiny and consideration by a select committee. As noted by submitters, particularly constitutional lawyers and also Dr Ann Brower, breaching constitutional norms, as Dr Ann Brower said, is a bit like eating fish and chips—if you are going to do it, it had better be worth it. I think certainly the Kaikōura-Hurunui earthquake sequence—the huge damage that it has done to the land there and the access that it has cut off to Kaikōura—means that emergency powers are required.

We acknowledge that the bill as introduced by the Minister did improve on the Canterbury emergency legislation in response to the earthquakes there, with additional safeguards including the fact that the Orders in Council that are made by the relevant Minister must be necessary or desirable in terms of the proposed purpose and that they cannot be broader than required. This bill has a list of Acts about which Orders in Council can be made, rather than the bill being a much more blank cheque, as with the Canterbury legislation. Those “Henry VIII” provisions, as they are called, were rightly criticised in the Canterbury earthquake recovery legislation because of the very considerable powers that they gave to the executive to suspend and modify Acts of Parliament. There, the executive was able to override all but a handful of Acts in relation to constitutional matters, and custody and detention. So it is positive that we have schedule 2 in this bill and the list of, I think, more than 40 Acts that the bill applies to. They, themselves, are very broad Acts. They include things like the Resource Management Act, the Conservation Act, the Railways Act, the Maritime Transport Act, the Land Transport Act, and others.

In the select committee we inserted some additional safeguards in recognition of the concerns that were raised by submitters, and also in recognition of our own concerns. Like the Labour Party, the Green Party would have liked to see a protection of the ability to take judicial review, because the courts provide, through their scrutiny of Ministers’ exercise of the Order in Council power, an additional check and balance. But we are pleased that the changes have been made in proposed clause 8(4) and clause 16(4), I think it is, where there is a provision that nothing in the Act, except as provided in the clause, prevents the court from determining whether an order is authorised by this Act. What that, effectively, means is that if an order is ultra vires—if it goes outside the purpose and the scope of that purpose—then there is the ability to invoke legal action and ask the courts to examine that. So that is certainly making that much clearer than the provision in the bill as introduced.

We are also pleased in terms of clause 16 that where the Minister wants to use an Order in Council in relation to Acts that are not in schedule 2, then the Minister must put the proposal for the draft order to the leaders of the parties represented in Parliament with the reasons he or she wants to make that order, and he or she has to be satisfied that there is near-unanimity from the parties that the order should proceed. So, although it is not coming to the Parliament before the order is made, there is quite a deal of political influence in that provision. And, of course, in this clause, if there are Orders in Council made that bring in and affect additional Acts to those listed in schedule 2, those Orders in Council have to be affirmed subsequently by the Parliament.

In the Green Party, we would have liked to see that affirmative resolution procedure applied to all Orders in Council as an additional check on the Minister’s powers and a safeguard against abuse, but we will be supporting this bill, and we are not using the fact that that is missing from the bill as a reason to oppose it. That is partly because of the additional safeguards around Orders in Council; the composition of the review panel, which has a number of people with specific expertise on it; the fact that the Minister must have regard to the advice and consider the advice that the review panel provides; and the fact that there is now a process for seeking some public comment—and my colleague Jan Logie may talk further about that. These additional safeguards have, I think, put better checks on the Minister’s powers.

The other major improvement that the select committee made was in relation to allowing additional local authorities that have not been affected by the Hurunui-Kaikōura earthquake sequence to have Orders in Council imposed there. Clause 16 has been amended and that provision about the Minister specifying one or more local authorities where orders could apply has been removed, so it is very much restricted to those local authority areas that have been affected by the Hurunui-Kaikōura quake. Nevertheless, as Mr Parker has said, the ambit of this bill does apply to a large geographical area, from the Waitaki River right through up into the Wairarapa, even though—

When a bill goes through a good process, you tend to get good legislation, and I think that this has been a good process, even though it has been a truncated one. In the end, we have got a good bill. The submissions, I thought, were particularly well focused, as they tend to be when you get a truncated process, and many added a valued perspective and some really quite useful suggestions.

All parties worked very well together on the Local Government and Environment Committee, so that after a lot of hard work, I might say, consensus was reached on virtually all of the changes to the bill. That was very ably assisted by Scott Simpson’s very capable chairmanship, and I do not think the consensus would have been so easy without that. I also want to express my appreciation of Minister Brownlee’s willingness on this occasion to listen, to discuss in person, and to accommodate changes the Opposition parties had sought. But my special thanks go to the officials and to the support staff, whose really hard work late at night was very sincerely appreciated, I am sure, by all of us.

Going into the consideration of this bill, New Zealand First did have three areas of concern. These have now been addressed in the Supplementary Order Paper (SOP) changes that we have before us on SOP 255. The first of those that I raised was the purpose clause, which clearly did need some work and some clarification, especially around the need to facilitate the restoration of the environment, as far as practically possible in the circumstances, of course, and a new clause was added to that purpose.

I am relieved, actually, that no attempt was made to define what we mean by the term “environment”, because I think these days that is clear enough. The clause also covers economic recovery, planning and rebuilding, and the economic, social, and cultural well-being of communities. The expression of purposes in the bill is actually very important, because it is referred to in other provisions in the bill relating to the scope of the powers under the bill and their checks and balances.

The second issue that we thought was important was clause 16, which has now been deleted and replaced with something else. But that related, firstly, to the addition of new council districts and regions, and that will now no longer be possible without new legislation. That is appropriate when you bear in mind that paragraph (c) of the definition of the term “earthquake-affected area” in clause 4 includes “the areas of other districts or regions that contain transport or other infrastructure”. That means you could actually go quite some distance beyond the defined areas covered by the bill, provided it relates to effects on transport and infrastructure. So it is actually quite a wide-ranging area for the bill.

This is not generic legislation, and the areas actually covered by it are already vast, so it is appropriate that new legislation should be obtained if significant events or effects arrive later in areas outside those listed in the bill. So I think that we have done the right thing with regard to this piece of legislation as far as the addition of other districts or regions is concerned, which would require new legislation.

The second issue was that other Acts in addition to those listed in schedule 2, which already contains more than 40 enactments, cannot be added to except if the near-consensus of all political parties is obtained. I think that was a very good compromise that was suggested by Minister Brownlee, and it was readily adopted by the select committee.

The third issue was the limitation on appeal rights. We had expressed concerns, as other parties had, about how broad subclause (3) of clause 8 appeared to be. That has been addressed pretty well, I think, by new subclause (4), which has been added so that it is clear that the courts are not prevented from determining whether an order is authorised by the Act.

I have only a few more comments to make, actually, because those are the three main areas that New Zealand First had concern about. As I have said, they have all been addressed, and properly addressed, in the amendments that we see before us on Supplementary Order Paper 255. There were a number of other worthwhile changes made, which New Zealand First also supported, especially around the all-important panel to review and advise the Minister, because that, I think, is in fact the most important of the checks and balances provided for in the bill. It was important to get that right, and I think we now do have it right.

So with all those changes, New Zealand First is now very satisfied with the bill. We seek no other changes, and we will vote in favour.

It is a pleasure to make a contribution at this stage of the Hurunui/Kaikōura Earthquakes Recovery Bill, and, on behalf of the good people of Kaikōura, I would like to thank the Local Government and Environment Committee and its able chair, Scott Simpson, for the collegiality of the select committee in working very hard on this bill. I know that the members sat for very long hours, and the officials and advisers who did all the work around that as well should also be thanked for their hard work. I know they burnt the midnight oil to ensure this bill was before us today. I can tell you that it means a heck of a lot to those people.

I was in Kaikōura this morning. I got back just in time for this afternoon, and they are already asking questions about when this is all going to be able to be enacted and when they can start the recovery phase. I know that it has been over 3 weeks since the earthquake and that a heck of a lot has happened, but if you are the people living in it, it seems a heck of a long time. So they are really very grateful that things are moving. I told them that I was coming back here today and that this would be passed today, so I really do thank everybody across the House on their behalf. I think that all of this work you have put into this bill—particularly, as has been alluded to, the advisory panel—really does make this bill a good step forward in the management of the recovery. I think that had it not had that panel—that was really the icing on the cake, if you like, or the final check and balance along the way.

It was talked about earlier by one of the previous speakers about perhaps having an on-the-shelf piece of legislation, but when you look at this incident compared with the Christchurch earthquakes, they have quite a different profile in terms of the damage and what areas were affected. I suspect that each event will have its own nuances, and a one-size-fits-all piece of legislation would have to be so broad that we would run into all the sorts of issues that have been the points of debate around this particular bill anyway. I think that although a lot of work has been caused for the Local Government and Environment Committee and officials to get this through in a quick and timely manner, I cannot see any other way of handling a recovery bill like this.

Once again, I would like to thank everyone concerned. I cannot add any more on the technical details as I was not on the select committee, but, as I said earlier, there are a whole lot of people watching and listening to this today who are very keen on this getting passed. So I will not delay it any further. Thank you.

It is a pleasure to rise and speak on behalf of the Green Party in the Committee stage of the Hurunui/Kaikōura Earthquakes Recovery Bill, which the Green Party is supporting. I too want to add my voice of thanks, along with the other members of the committee, to the select committee staff and the officials, and to the Minister Gerry Brownlee, indeed, who put in a huge amount of work to enable us to get to this point. It is very clear, as the mood in the select committee indicated, that we all want to get this right—that these are extraordinary powers that are being handed to the executive, and that is something that should never be taken lightly, or done in a sense of panic or emergency, without very proper consideration.

I have been encouraged that there has been a significant amount of thought about what checks and balances we could practically put in place that would help good decision-making, because at the heart of it those checks and balances are about preventing a misuse of power but they are also about making sure that we get good decisions for communities that are already in a really terrible situation. We know that in those times of extreme stress—and there is no doubt that people in Kaikōura and Hurunui must be feeling extreme stress at the moment, and will be for a significant period of time—there will be a temptation to just get things done, but sometimes that may lead to poor decision-making that will have irreparable consequences. Part of this process is putting in some checks and balances to prompt a second thought following that first option and idea that we may all be compelled by.

Some of the changes that happened within the select committee process were that there has been a reduction in the number of Acts that can be changed easily by Order in Council, and I think there are eight fewer Acts on that list. That also shows that the ministries that are thinking about what might be needed in these areas have gone through and thought a bit more carefully than their first take about, actually, how could we do this—how could we support these communities, where could we do it within the existing law, and where might we need a bit of override of current legislation?

We had some concern at the beginning that there is a provision in here that enables additional Acts to be added to that list. That remains—additional Acts can be added—but for an Act to be added, the Minister needs to send a draft of the intention to do that to the leaders of all of the parties in Parliament, and there needs to be near-unanimous support from those party leaders for that to go ahead. That is giving some of that power back to Parliament, which is a check and balance on the power of the executive. That seemed to us to be a good compromise, because we do understand that we cannot anticipate what might happen—or, indeed, what is invisible to us at the moment that may only become clearer later.

There was also concern from us at the beginning that a provision of the bill as it went to the Local Government and Environment Committee said that—and I cannot remember the exact wording—things could not be challenged in the court. There was a very real concern from the committee that that meant judicial review of any of the Orders in Council was ruled out—that there could be no scrutiny of these Orders in the Council by the courts. That seemed concerning, to put it mildly. So there has been some clarification of that, and there was a negotiation in that process. However, the committee was not unanimous in support of the point we got to, and we would have liked to see, possibly, an ability for a review beyond whether an Order in Council is authorised by this Act. However, it is a compromise point that all parties could live with, at least, even though the Green Party would have gone further.

There was also a part in the Act that talked about the fact that if there was another quake that happened—or a significant event or tsunami—that impacted on affected areas, then Orders in Council could be applied to those other areas. The example that we discussed in committee was if there was an earthquake in Hawke’s Bay, or a tsunami, and that affected one of the regions in New Zealand that was covered by this piece of legislation, then actually you could use Orders in Council in Hawke’s Bay or up in Auckland just by virtue of this bill. The committee and the Minister agreed that that was a step too far—that if there was an event of that nature, then Parliament should reconvene to consider exactly what bespoke response was needed to that event, and that that should not be able to be dealt with by this piece of legislation. And that is a good improvement, I would say.

We also had a bit of concern—in the initial draft that we had seen before it came to the House, there was the ability for affected people to be able to provide comment into the process. Then the bill that came to the House did not include that, and we were concerned about that. It was an interesting discussion in the committee, because we asked Professor Geddes whether he supported that provision through the submissions, and he said: “Well, actually, if you specify it needs to be ‘affected people’, then, actually, you’re opening to a legal challenge on the basis that you didn’t identify all the affected people.” So that actually seemed a reasonable point and a reason why we would not want “affected people” locked into the legislation.

But what we have—and I thank the Minister for it—is a provision that in drafting an Order in Council, if it is practicable, the Minister either will give a copy of the draft and reasoning to people whom the Minister considers will be affected by the legislation, or will publicly notify it. So there is an opportunity for people in those communities to be able to have a say, potentially, in that drafting phase of an Order in Council. We strongly believe that that input will help make good decisions. It gives the Minister the opportunity to get more information to be able to weigh up the different potential impacts of an Order in Council, and we thank the Minister for adding in that provision.

We did also have, I guess, some concerns about how wide the purpose of the Act is. There was debate about that within the committee. It has been tidied up from where it was initially, and I thank Denis O’Rourke for his contributions towards that. I do recognise that it is a very difficult balance between making the purpose so wide that really nothing is challengeable in the courts, and making it too tight and being unable to respond to the events that arise that you cannot foresee. I think we were willing to accept where it got to on the basis of it actually being a really difficult decision to make. It is probably one of those things where I hope there will be an evaluation of how this works after this time is over, so that we can consider whether the purpose scope was too wide or not. We look forward to that discussion in the future.

I see that my time is running out on this, but I really do just want to say that it was a very constructive process that reflected the concern right across the House for the people and the communities that have been affected by this quake.

Tēnā koe, Mr Spare—Mr Chair—

💬 Carmel Sepuloni: Time to go home.

—time to go home—and members, greetings. Like the member for Kaikōura, I do not want to prolong this debate, but I do want to stand in support of this bill. Clearly, issues have been transferred—look, my mind is going now. Clearly, issues have been dealt with by all the members on this side. It was a bill that needed the urgency of this House.

Of course, we did have some issues, which I think have been ably addressed in the select committee process, particularly around the purpose clause, which others have spoken about, and trying to get that balance between the economic recovery and it not happening at the expense of any adverse effects on the environment. Of course, the statement we have put in, on Supplementary Order Paper 255, adding new clause 3(a)(v), probably was not to the liking of the Green Party in terms of “facilitating the restoration of the environment”, but, clearly, in order to support a bill to aid and abet recovery in both Hurunui and Kaikōura, we needed to have those checks and balances.

I am confident that in the process that we have undertaken at the Local Government and Environment Committee—one of the hardest-working select committees in Parliament—we have addressed as best as we can those relevant checks and balances. I do not really want to go over them, but definitely in clause 8, where we have talked about ensuring the Minister takes regard before he makes the order, clearly we have introduced the review panel. Can I just say, on that particular point, that in clause 11 the committee made some changes inserted by Supplementary Order Paper 255 where we want the convenor to be a former or retired judge; before, we had a judge or a lawyer of 7 years. So it is recognition of a retired judge’s capability in that we wanted the convenor of the panel advising the Minister to be a former or a retired judge of the High Court.

Of course, the other check and balance is that once the draft order has been made by the Minister, he shares it not only with the review panel for comment but also with the Regulations Review Committee, and, of course, if the House is not sitting, then the expectation is that those orders will be shared with the political parties of Parliament. It is good that we have also made amendments around giving a time frame of 3 days in which those particular panels and the Regulations Review Committee or political party leaders have to provide feedback to the Minister. That is all very good. Of course, clause 13 around the function of the panel again gives some guidelines for the Minister before the order is actually made.

I do add my voice of acknowledgment to the hard-working role of our officials and, obviously, the chairmanship by Scott Simpson. I think this bill, in the time frame in which we have had to operate, is a fairly good piece of legislation, which I am happy to be supportive of. Of course, the acknowledgment as far as I am concerned is to the officials who supported the select committee—many of whom are sitting behind you, Mr Chair—and, of course, to the able support of the clerks of our select committee.

I look forward to the third and final reading of this bill. Kia ora tātou.

I move, That the question be now put.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 255 in the name of the Hon Gerry Brownlee be agreed to.

Amendments agreed to.

The question was put that the amendment set out on Supplementary Order Paper 256 in the name of Jacinda Ardern to clause 10 be agreed to.