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Canterbury Earthquake Response and Recovery Bill (Consistent) [2010] NZBORARp 64 (12 September 2010)

Last Updated: 6 May 2020

Canterbury Earthquake Response and Recovery Bill

12 September 2010

ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: CANTERBURY EARTHQUAKE RESPONSE AND RECOVERY BILL

1. We have considered whether the Canterbury Earthquake Response and Recovery Bill (PCO 14738/15.0) (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill is to be considered by Cabinet on 13 September 2010.

2. The purpose of the Bill is to ensure that the Government has adequate statutory power to assist territorial authorities, regional councils, other organisations, and individuals with their recovery response to the earthquake that occurred in Canterbury on 4 September 2010.

3. We have concluded that the Bill appears to be consistent with the rights and

freedoms affirmed in the Bill of Rights Act.

4. In reaching this view, we have closely examined clause 6 of the Bill. This provision enables the making of Orders in Council relaxing or suspending some statutory requirements that may otherwise divert resources away from the effort to efficiently clean up the damage caused by the Canterbury earthquake or that may not be capable of being complied with, or complied with fully, owing to the circumstances resulting from the Canterbury earthquake. While clause 6 does not directly raise an issue of inconsistency with the Bill of Rights Act, the way the clause is framed

impacts on the proportionality of the Orders in Council once they are in place. We have therefore considered whether or not the clause is reasonable.

5. We consider that the creation of this power is necessary given the devastation that has been caused by the Canterbury earthquake and the continuing aftershocks, and that this mechanism is the best and most efficient way to assist with the recovery response. In our view, the relevant provisions have been carefully drafted to ensure that the power is only used in a reasonable way to facilitate the response to the Canterbury earthquake.

6. For instance, an Order in Council can only be made when the consequences of the

earthquake are such that the person on whom the requirement is imposed will either have to divert resources away from the effort to efficiently clean up the damage or is not capable of complying with the requirement (cl 6(2)), and the relaxation or suspension is reasonably necessary or expedient for this purpose (cl

6(1)). While an Order in Council may be issued retrospectively, it cannot commence earlier than 4 September 2010 (cl 7(2)). Further, an Order in Council must be presented to the House of Representatives as soon as practicable after it is made (cl

8), and may be subject to a motion of disallowance if agreed to by the House within

6 sitting days after the day on which the motion was made (cl 9). Finally, the power may not be used to authorise the relaxation of provisions that impact on fundamental rights and freedoms (cl 6(6)). Limitations on such provisions would

need to be done by way of primary legislation, following approval by the House of

Representatives.

7. This advice has been prepared by the Public Law Group and the Office of Legal

Counsel.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Canterbury Earthquake Response and Recovery Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors

or omissions.