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New law shakes the democratic foundation

As the old adage goes, “the road to hell is paved with good intentions.”

Good intentions do not always lead straight to Hades, but the adage often rings true, as it did in Parliament last fortnight.

The shock of the Christchurch earthquake prompted the Government to introduce a law that gives it extraordinary power. Simply by making regulations, the Government can relax or suspend most of our laws without having to get the approval of Parliament, as long as they decide it is important for the response to the earthquake.

Victoria University Senior Lecturer (Faculty of Law) Dean Knight described the Bill as ‘extreme.’

“It confers powers that are more extreme than found in the Civil Defence legislation applicable to the original emergency itself,” he said.

The Act violates a fundamental constitutional principle; that it is Parliament that makes and unmakes laws, because it is the body that has democratic legitimacy, and it is the institution that represents the interests of the whole nation.

Uncontrolled delegation

Of course, Parliament can delegate this law-making power to others to make regulations, and does so fairly regularly, but such delegation is tightly controlled. In this case, it is not so.

The second problem is that the Act contains an unusual provision to weaken controls even further. It says that the responsible Minister’s recommendation to make regulations cannot be reviewed by the courts. Ordinarily, the courts have authority to check that rules made by the Government are within the regulation-making powers delegated by Parliament.

According to Otago University Associate Professor (Faculty of Law) Andrew Geddis, attempting to shut the courts out of even part of the process was alarming.

Was some urgent action necessary to help the people of Canterbury? Yes, but that did not warrant such a legislation.

Targeted Approach

Mr Knight argued that Parliament could have instead taken a “rolling maul” approach, altering specific laws urgently as necessary to respond to specific problems, and repeating the process whenever new problems comes to light.

In general, a more targeted approach under a greater degree of Parliamentary oversight would have been preferable, rather than delegating sweeping powers in haste.
To be fair, it seems unlikely that the Government will in fact do anything outrageous, like suspend provisions of the Crimes Act, but the point is that the powers delegated travel far enough to be alarming. They could certainly be used to do something questionable, if not actually outrageous, outside of the normal controls of Parliamentary scrutiny, debate and process.

Even if there is no misuse this time, the law sets a worrying precedent.

The reason we have Parliamentary processes and constitutional checks and balances is that the responsibilities given to Parliament are mighty. They should not have been discarded so lightly.

-Maxim Institute

Photo :

Prime Minister John Key with children in Brooklands Christchurch on September 11, 2010. NZPA Picture by David Alexander

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