Legal Beagle by Graeme Edgeler


He is Henry the Eighth, he is

I haven't time to prepare a post of my usual consideration (or length), before the House of Representatives passes the Canterbury Earthquake Response and Recovery Bill through all stages under extreme urgency, but I felt impelled to say something before it passed, rather than after. The in-depth analysis will hopefully follow from many quarters in the coming days – probably not from me in any organised form – but I will perhaps start with a couple of questions:

1. why does the Government – without first going to Parliament – need the power to unilaterally decide that murder isn't a crime in Auckland to assist with the reconstruction of Christchurch?

2. why, if the Government did decide that murder shouldn't be a crime in Auckland, should this obviously and stupidly unreasonable decision not be able to be over-turned by a Court?

Wouldn't the law only allow the Government to do things that are reasonably necessary or expedient for facilitating the response to the Canterbury earthquake, or the other things listed in the purpose section of the new law? I hear myself asking.

Well yes, that's how laws work. Parliament passes a law, and the Government has to follow it, so if Parliament says "you have these powers, but you may only exercise them for these purposes" then if the Government exercises them for a different purpose, its exercise of that power is invalid. But the problem is that this law declares that the body with the power to declare those actions invalid is told to naff off. Section 6(3) states:

The recommendation of the relevant Minister may not be challenged, reviewed, quashed, or called into question in any court.

I'm pretty sure the courts would tell them to stuff off anyway, but that's not really the point - they shouldn't be trying to do this anyway.

I have often wondered what it would take for me to swear off a political party forever. It would be a very rare circumstance. Plenty of things would stop me voting for a party. I wouldn't support a party that intended to reintroduce the death penalty, for example, but swearing off a party forever is quite drastic. I usually came down with an answer like “ignoring section 268 of the Electoral Act and extending the term of Parliament without a super-majority”.

I think we have a new winner. If anything even remotely dodgy is done under this law, I will hold every MP who voted for it personally responsible and never ever vote for a party which has a single one of them on its list. And I will encourage everyone I know, and anyone I don't who'll listen, to do the same.

Edit: couldn't help myself, more analysis added.

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