Parliament can grant powers to certain authorities to make new rules without having to go through the normal lengthy legislative process. It’s especially useful when things need to happen fast.
We saw it during early stages of the pandemic, when lawmakers delegated powers to health officials and others in order for them to be able to make rules on the fly as they responded to the unfolding Covid-19 disaster. These powers are called secondary legislation (since they are enabled by legislation).
This week, a new piece of legislation being considered under urgency is set to grant such powers. The Severe Weather Emergency Recovery Legislation Bill follows the recent devastation of Cyclone Gabrielle and the severe flooding that preceded it.
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Gisborne's main water pipe has been significantly damaged during Cyclone Gabrielle, forcing the city into a water crisis. Photo: Supplied via LDR
The Bill is not to be confused with the similarly named Severe Weather Emergency Legislation Bill which went through its entirety earlier this month. That was an omnibus bill which - as the Government’s Leader of the House Grant Robertson explained - was geared towards implementing very immediate changes to several different acts in the wake of the extreme weather disaster.
“So for example there was a need for local government to be able to complete some of their meetings on Zoom, because people literally couldn’t get where they needed to go to; some changes to the Resource Management Act which were about making sure that people who were doing emergency work weren’t acting illegally. So they are very, very immediate things,” Robertson said.
“This second piece of legislation is one which creates a process for acts of Parliament to be amended by Order in Council. This was done after the Canterbury earthquakes and after the Kaikoura earthquake as well. And it’s really about the fact that there [is] going to be a need to make some fairly important changes to allow building to happen or that allow other important works to happen, where a full process under law would cause significant damage and hardship.”
As the explanatory note on the proposed Bill explains, “the single broad policy for this legislation is to ensure that Government agencies and Crown entities, and affected local authorities and communities, can appropriately respond to or recover from the recent severe weather events, or both, including by providing the Government with flexibility to facilitate, enable, and expedite the recovery”.
It allows the Governor-General to exempt, modify or extend provisions of various laws listed in the Bill on the recommendation of the relevant Minister who oversees the law in question. There’s almost three dozen laws listed in Schedule 2 of this Bill.
Scrutiny
“We’ve learnt a lot over the years about how to do this in a way that we still uphold the constitutional processes,” Robertson said.
All of these changes will end up going through the Regulation Review Committee, which is chaired by an opposition MP. Among other things, this committee hears complaints from the public about how regulation-making powers have been used and whether they’re appropriate and in line with the original mandate. Indeed all regulation-making legislation goes through this committee before being passed.
“We’re also looking at the establishment - as was done previously - of an advisory panel which can look at the Order in Council in a short, three or four-day process, so that there’s at least some scrutiny of it before the Government then goes ahead and does it, and then the Regulation Review Committee can then catch up with it through its processes too,” he explained.
“They’re quite tightly prescribed. So it needs to be about something that affects the area that has been affected by the cyclones or the extreme weather, so it’s quite narrowly cast. But I do understand that Order in Council powers are significant power, and so we want to set up a process that people can have confidence in.”