Editorial: Fast-track laws quick road to abuse of power

Prime Minister John Key said that the Christchurch earthquake - with a repair bill expected to be more than $4 billion - was New Zealand's most costly natural disaster. Photo / Mark Mitchell

Work has just begun for the 26 experts in constitutional law from all six of the country's law faculties who penned a letter condemning the Government's earthquake response legislation.

No sooner was their work in the public eye than the similarly flawed Rugby World Cup 2011 (Empowering) Bill was reported back from a select committee, with a recommendation that it pass. It also goes far beyond what is required to get things done.

Faced with situations out of the ordinary, the Government seems to be in the business of clearing the decks so it can do whatever it believes necessary. Constitutional nuance and nicety have little room in this approach.

The World Cup legislation sets up an authority - chaired and deputy-chaired by a judge or an experienced lawyer - to fast-track applications for activities and facilities, such as hospitality arrangements and liquor licences, that are considered necessary to cope with demand during the event.

In bypassing the normal consent process, the bill says the authority does not have to hold hearings on applications and that its decisions can be challenged in the High Court only on points of law.

Also included is a process for urgent applications. This grants an extraordinary level of power to the Rugby World Cup Minister, Murray McCully.

He may ignore the recommendation of the authority and substitute his own decision. The bill says he must take into account the authority's view, as well as that of other ministers, and that he must pay heed to public safety and mitigate "any adverse impacts". But his view is the one that counts, and his decision is final.

It is difficult to see why such power is necessary. The authority, which will be advised by an administrative secretariat composed of staff from the relevant territorial authority, will, clearly, gain expertise as it goes about its task.

It, not the minister, will be best placed to decide on all sorts of applications in all sorts of circumstances. Mr McCully's powers are understandable only if the Government is determined absolutely nothing will stand in the way of how it wants the World Cup to be run.

Other parts of the bill support this conclusion. Usually, applicants must have taken all practical steps to use normal statutory processes to obtain the approvals, but have run out of time.

This, however, can be waived if the activity or facility relates to an event venue "essential for the proper conduct of the tournament".

The possibility of an oversight or management failure is given as the reason for this exception. There may, indeed, be cases of this, but there may also be instances where last-minute decisions taken in haste and with insufficient regard for proper process or the consequences have malign outcomes.

Effectively, the legislation asks New Zealanders to accept that the Rugby World Cup Minister knows best. It is he who knows how the event must be run. Precisely the same attitude pervades the Canterbury Earthquake Response and Recovery Act.

This hands individual Government ministers the power to change almost every law, thereby handing Parliament's normal law-making role to the Executive. Their decisions cannot be challenged in any court.

The Earthquake Recovery Minister, Gerry Brownlee, has justified these powers by saying "business as usual won't work". Doubtless, the Government would offer the same defence for its approach to the biggest event that this country has hosted. It wants to get things exactly right for the expected 85,000 visitors.

But in both cases, it has gone too far in removing checks and balances on the Executive. Such powers should not be written into law unless and until there is a clear case for them.