Why the Severe Weather Emergency Legislation is problematic and undemocratic
Despite serious criticism about the powers it bestows, extreme urgency was claimed for the passing of this Bill in April. So why have practical outcomes for flood recovery been so slow in coming?
On 27 June, Environment Minister David Parker announced that two new Orders in Council would be made under the Severe Weather Emergency Recovery Legislation Act, to allow temporary accomodation and waste disposal (new landfills) measures under the Resource Management Act.
A public consultation on the proposals was held between 28 June and 4 July.
Then, on 5 July Hawke’s Bay Regional Council announced another Order in Council had been produced under the same piece of legislation to allow for the burning of flood related debris - a serious issue for a number of landowners in the direct path of stop bank breaches and major flooding.
I’m a journalist based in Napier, and I experienced Cyclone Gabrielle - thankfully not the flooding, but the failure of our critical infrastructure - first hand. I’ve also been reporting on the devastating impact on orchardists, farmers and residents for a number of publications.
I am aware that this legislation is partly in response to what badly impacted people have been asking for. For example, one orchardist who survived the floods in Puketapu only to be left with hundreds of thousands of tonnes of slash, wood debris and silt on her property, pleaded for an exception to the strict waste disposal rules that would see her having to separate, sort and dispose of the various waste streams in a particular way. This included things like tanalised posts, wire fencing, general farm infrastructure and organic debris. For a long time orchardists have been left alone to attempt this sisyphean task, many hamstrung by the sheer scale of the problem (as show in the photo above).
This new Severe Weather legislation provides Ministers with the ability to produce Orders in Council to allow for an exception to these Regional Council rules, meaning that orchardists can now burn it, albeit under strict conditions to ensure safety and reduce pollution. I have every sympathy for this exception.
Another Order came into effect just yesterday, providing for exemptions from the Waste Minimisation Act 2008, for levy payments on cyclone and flood waste. Fair enough. But there will be others, so we should ask if these fixes the right ones, and if they are sound.
I wanted to know what Napier Mayor Kirsten Wise thought about the proposed legislation, as she had told me in no uncertain terms in an interview a couple of weeks after the flood, that the recovery must be locally led, that it must not be Christchurch all over again. Did she think this Bill would do that?
On 23 March she told me: “I’m supportive of any legislation that alleviates pressure on our affected residents and makes their road to recovery easier.”
The Bill was given Royal Assent on 12 April, and the orders were not produced until early July - so any alleviation the legislation provides has been a pretty long time coming. None of this feels particularly urgent, or designed to provide quick relief to those affected.
To make matters worse, the creation of the legislation was an undemocratic, un-transparent and rushed affair that drew severe criticism from many quarters.
Problems with the ‘urgent’ severe weather legislation
The legislation follows in the footsteps of Covid emergency legislation in its characteristics of being drafted quickly, consulted on barely and passed almost without any opposition. It grants Government inordinate power to change dozens - 27 to be precise - pieces of other legislation. This includes, as we’ve just seen, the Resource Management Act. However, many others that have not been specified can be added at any time - without going through the typical legislative process.
In no way has the public been given a chance to understand these new powers and their implications. The cherry on top is that the Government has inserted sunset clauses that fly in the face of the term ‘emergency’, by allowing themselves these powers for far longer than is strictly necessary. The Act will be repealed on 31 March 2028, and the Orders in Council therein, on 31 March 2026. The potential for abuse of power is enormous.
Academic Professor Dean Knight wrote a thread outlining the huge scope of the bill and it’s worrying implications, while sociologist Jodie Bruning has objected to it on similar grounds, but also draws attention to the lack of overarching principles and gaping holes in the Bill.
For example, the bill contains no mention of water, which she notes would be the number one public health concern in an event such as the floods that ravaged Hawkes Bay earlier this year.
“The Law Society strongly supports the aim of assisting communities devastated by Cyclone Gabrielle, but we do not consider this Bill is a constitutionally appropriate way to do so, and it raises fundamental rule of law issues.” - NZ Law Society
In its submission to the extremely truncated consultation, The Human Rights Commissioner Paul Hunt said it didn’t meet the threshold for democratic lawmaking. Submissions from the New Zealand Council for Civil Liberties said the Bill was “an affront to our democracy”.
“The autocratic measures at the heart of this Bill are precisely the sort of executive overreach the Council was founded to prevent,” it stated.
The New Zealand Initiative’s submission said “we believe this to be a shameful episode in the history of New Zealand’s parliamentary democracy.”
The the New Zealand Law Society’s submission was equally damning:
“The Law Society strongly supports the aim of assisting communities devastated by Cyclone Gabrielle, but we do not consider this Bill is a constitutionally appropriate way to do so, and it raises fundamental rule of law issues.”
The most important of these were the extensive use of ‘Henry VIII’ clauses to permit amendments by the Executive to a range of legislation, and the timeframe for submissions to Select Committee, one of the shortest it had encountered - two days. It said their use didn’t allow for proper scrutiny given the significance of the Bill’s content and the how long orders made under it remained valid.
Another concern, raised by Bruning, is that secondary legislation is drafted outside of Parliamentary oversight, in secret by Cabinet Ministers, and then becomes law. Citizens must then abide by it, despite having no procedural assurance that it was not made arbitrarily or even unjustly.
Henry VIII clauses
The liberal use of Henry VIII clauses in this Bill is cause for serious concern.
I asked the Law Society to clarify the term, and was advised that a Henry VIII clause is a provision in a piece of legislation that enables the Executive to amend, suspend, override, or even repeal an Act of Parliament by Order in Council. In other words, Henry VIII clauses give Ministers the power to make regulations outside of Parliament, which can change the policy and substance of laws.
In an email from the society, I was advised the use of these clauses are rare and typically only enacted when there is an exceptional reason to do so. The example of the Canterbury and Kaikōura earthquakes was provided, and also Covid-19 emergency legislation. Now they’re being used in the recovery response for Cyclone Gabrielle.
It was explained that the Severe Weather Emergency Recovery Act was a significant example of the use of an Henry VIII clause, because it also allowed the Executive to use an Order in Council to add to the list of Acts that can then also be amended by Order in Council. In practice, this means Parliament won’t be involved in any decision to expand the use of the Henry VIII Clause that it originally passed.
It’s worth noting that even Covid emergency legislation did not use Henry VIII clauses in this way. They are usually found in primary legislation, which wasn’t the case. There was no section in the The Covid-19 Public Health Response Act 2020 that allowed other legislation to be created or amended by regulation or order (secondary or supplementary legislation).
Victoria University Law Professor Dean Knight, however, said that strictly speaking the Covid Act did contain them, because it prevailed over other primary legislation such as the Immigration Act, if there was any conflict. However, the orders needed to be approved by Parliament and the legislations themselves had sunset provisions, so Parliament deliberately renewed the legislation, he said.
“Their main purpose was directing behaviour, not modifying existing statutory settings. Rather, alleviating legislative and administrative hurdles was left to modification orders made under the Epidemic Preparedness Act, which authorised orders with the explicit Henry VIII character.”
So how can you spot them? The Law Society said Henry VIII clauses can be identified when Ministers are given the ability to amend a piece of legislation, usually listed in a schedule, via Orders in Council, which do not go through Parliamentary processes.
It’s submission on the Severe Weather emergency legislation stated, “While the current list of enactments subject to the Bill will be scrutinised by Parliament, subsequent additions would not be. In our view, this use of a Henry VIII clause is not justified.”
It’s not just Parliamentary scrutiny that is compromised, but their use also clearly reduces the opportunity for public scrutiny too. As such, the society, in its submission also made clear that such powers should therefore only be granted by Parliament, and used only in exceptional circumstances, subject to appropriate controls and safeguards.
“The Bill is premised on an assumption that the Henry VIII clause is needed because changes to legislation, by way of standard Parliamentary procedure, would be too slow. However, we note that Parliament does have the ability to pass laws swiftly under urgency, if it so wishes ... Any analysis of the expeditiousness afforded by the Bill must take into account the speed of passing legislation through standard Parliament processes.”
Academic criticism
Knight was kind enough to speak to me about the use of Orders in Council back on 17 May, after he posted a thread outlining his concerns. His thoughts echoed the views of The Law Society.
In our conversation, he remarked that given how quickly the Bill was written and passed, there was a glaring question about why no Orders had yet been produced (none at the time we spoke).
“So, for those of us who rushed around trying to make submissions, an extra two or three weeks might have been beneficial to gather our thoughts and our reasons. Because what it tells us is that the urgency for the passage of the legislation must have been overstated because they haven’t been used yet.”
“… what it tells us is that the urgency for the passage of the legislation must have been overstated because they haven’t been used yet.” - Prof. Dean Knight
“My concern is that I just don’t think that some of the things that will be done in this, as they were in the Christchurch earthquakes, are stuff that couldn’t have been done with parliamentary process or greater involvement of the community or with time to breath. Not everything needs urgent attention, particularly in the recovery phase, not the emergency phase.
“We are months on from that and we are looking at how to rebuild a series of regions like with Christchurch, and I’m just worried that the Christchurch model puts all the acid on a minister or a few ministers to shape that through an expedited process. Why can’t Parliament stay engaged on this? We know they can pass legislations quickly, they’ve shown us. If something needs to happen they can move the legislative boulders and barriers themselves.”
Knight also observes that the legislation covers areas not much affected by severe weather - in fact, extraordinary ministerial powers can be exercised in 36 local authority districts, many of which won’t require emergency powers to deal with recovery.
“… the reality is that this applies to over 80 percent of the North Island. The purposes could be used for all sorts of things in Auckland or Manawatu, or [that are] quite different in character to Hawkes Bay, which was massively affected”.
Water, water all around - but nowhere to be seen in this Bill
Sociologist Jodie Bruning’s submission to the Bill said it was “pervasively ignorant” about the threat to source and drinking water following severe weather events, which as it turns out came very close to being a big issue in Napier.
In the case of Cyclone Gabrielle, forestry was moved by slips, many bridges and roads were broken and flood water redistributed toxic chemicals and waste water in the Awatoto industrial area. So what happened to the water source? Certainly, nearby private water bores were tested for contamination. Public safety after a weather event like Gabrielle revolves around safe drinking water.
Looking through Napier City’s locality plan for Cyclone Recovery, I was shocked to find out that the city’s drinking water supplies had been at risk after the event - the public was only asked to limit the use of water for things like showers and toilet flushing. At one point, the city had just 10 hours of water usage left. This was due to the need for electricity to treat the water, but of course Napier City was without power and communications for a week.
“The secrecy is granted to Ministers throughout the law-making processes and existing secrecy provisions are patently undemocratic.” - Jodie Bruning
Napier’s wastewater treatment plant was damaged when the Awatoto industrial area was inundated after stop banks were breached. The treatment plant became inoperable and was only operational again, with limited capacity in early April - and the city will be pumping sewage directly into the sea for the foreseeable future.
Bruning said water and the threat to drinking water sources are, strangely, not mentioned once by the Bill drafters.
However, her biggest bug bear, as with many others, appears to be the extensive powers granted to Ministers, including the ability to produce Orders in Council and the inclusion of secrecy provisions for officials.
Recommendations largely Ignored
Bruning began her submission by saying that the Bill was objectionable and should be rejected due to its massive over-reach, which paved the way for “significant abuse of power”. Further on she says:
“The broad scope of the Bill in combination with the granting of extensive powers as delegated legislation produces law-making powers that can be and will be cloaked in secrecy. The secrecy is granted to Ministers throughout the law-making processes and existing secrecy provisions are patently undemocratic.”
She argued there was no explanatory reasoning that justified such powers. Consequently, in her submission Bruning recommended, as did Professor Knight, immediate post-enactment scrutiny and public submissions (and in Knight’s case, that it be incorporated into the Bill as a condition of its continued operation). Bruning also recommended a requirement to provide the reasoning for the Orders in report form and made available for public scrutiny under the Official Information Act.
Bruning and Knight both recommended that Orders in Council be made subject to confirmation by Parliament and that sunset clauses be shortened, although Knight thought they could be subject to renewal where necessary. The Law Society recommended that the Bill be withdrawn and redrafted.
In the report of the Governance and Administration Committee which reported back to Parliament, it stated that most members were satisfied the situation was sufficiently urgent to merit the shortened consultation period. The committee agreed with the government’s need for “broad and flexible powers” in emergencies:
“The OIC mechanism would facilitate recovery without needing to anticipate every power or statutory provision that may need to be amended to achieve the bill’s purpose. It is designed to be flexible to deal with a range of potential matters: for instance, demolition or repair of certain buildings, and streamlining planning and consenting processes. This way, OICs can fast-track locally-led recovery.” (emphasis mine).
But has it? The answer is patently: No
In fact, the drafting and passage of this Bill took place in roughly half the time it took for anything practical to come of it. There doesn’t seem to have been much stopping the sponsors from debating the Bill in Parliament and then acting rapidly to assist cyclone victims.
The committee did, however, recommend that a review of the legislation be initiated immediately after it was enacted. I am unaware if this has happened. It was also recommended that ministers producing Orders get the approval of 75 percent of members of parliament in order to do so - but such agreement does not appear to mean very much, as advice is non-binding.
The report stated: “We heard that the OIC process outlined in this bill is not unprecedented, and similar legislation was developed for the Canterbury earthquakes recovery, the Hurunui/Kaikōura earthquakes recovery, and the Covid-19 response.”
Does any other piece of legislation permit changes to 27-plus other pieces of legislation, without parliamentary scrutiny via secondary legislation? Given the committee did not suggest any amendments to the expiry dates of this legislation or the Orders therein, these particular powers will persist for three years using delegated legislation.
While the need for exceptions to certain rules in light of the severity of the damage wrought by Cyclone Gabrielle is not disputed, I’m left wondering why they did nothing with it of any use for months. And why, in light of the serious opposition to this Bill from various quarters, the Bill was ever able to pass with the level of urgency claimed.
I’m left wondering if at heart, it was a power grab.