Extraordinary Powers and Political constitutionalism
| Author | Sascha Mueller |
| Position | Senior Lecturer, Law School, University of Canterbury |
| Pages | 65-84 |
65
EXTR AORDINARY POWERS A ND POLITICAL
CONSTITUTIONALISM
S M *
A
During times of emergency situations extraordinary powers may be vested in
the executive in order to prevent or reduce its impact. Emergency legislation is
usually explicit about its extr aordinary nature and requires trig gers that enable the
executive to use extraordinary powers. However, in recent times, New Zealand’s
parliament has passed legislation that contains extraordinary powers, yet does
neither draw attention to its extraordinary status, nor requires any triggers. As
these acts did not directly deal with a threat to life or property, but instead likely
had an economic purpose, it appears that Parliament created extraordinary
powers out of convenience, rather than necessity. Due to New Zealand’s political
constitution, acts of parliament cannot be challenged in court. is approach
bears the danger of executive cre ep, where the executive gets more and more power
in order to “get things done”, with little regard to constitutional safeguards.
I. I
In 2010, the New Zealand Parliament passed the Environment
Canterbury (Temporary Commissioners and Improved Water Management)
Act 2010 (ECan Act) in response to an alleged inability of the regional
council, Environment Canterbury, to eectively manage Canterbury’s water
resources.1 Between 2006 –2008, Environment Canterbury had failed to meet
the vast majority of statutory time limits when processing resource consent
applications.2 Canterbury is the home of a large part of both irrigated land
and water consumption in New Zealand, a nd the government decided to pass
urgent legislation to rectify the situation. e ECan Act was passed under
urgency in March 2010, and it contained several constitutionally signicant
provisions. Inter alia, it provided for the replacement of elected councillors by
appointed commissioners, established extensive regulation making powers,
and restricting acce ss to the Environment Court.
1 Environment Canter bury (Temporary Com missioners and Improved Water Ma nagement)
Act 2010 [ECan Act] (30 Marc h 2010) 661 NZPD 9927; (30 March 2010) 661 NZPD 9930.
2 Ministr y for the Environment Reso urce Management Act : Two-yearly Survey of Lo cal Authorities
2007/2008 (June 2009) Appendi x 4; see also (30 March 2010) 661 NZPD 9927.
* Senior Lec turer, Law School, University of Cante rbury
66 Canterbury Law Rev iew [Vol 23, 2017]
One year later, the Canterbury Earthqua ke Recovery Act 2011 (CER
Act) was passed in response to the ongoing earthquakes in the Ca nterbury
region. In particular, the Februar y earthquake had had devastating eect s
on the city, causing many casualties and making large parts of Christchurch
uninhabitable. After 10 weeks of a state of emergency, the CER Act was meant
to facilitate and expedite the recovery eorts and the rebuild of the region.
To that end, it contained extensive executive powers reminiscent of those
available during a state of emergency, such as the power to enter or restrict
access to premises and roads, control the dissemination of information,
and the requisition of property. In addition, the Act contained substantial
regulation making powers.
Extraordinar y public powers, such as the ones contained within these
two Acts, are usually reserved for emergency situations in which ordina ry
public powers are not sucient to eectively deal with a crisis. Ordinar y
constitutional processes are too slow to respond to the immediate needs of
the population, so that they must be restricted to enable swift help and relief
to those aected. We are therefore accustomed to extraordina ry powers in the
form of emergency powers provided for by emergency legislation.
Neither of the situations that led to the passing of the ECan Act and the
CER Act can be described a s emergencies in the traditional sense. While both
addressed issues that required solutions, neither case required immediate
action. Both situations could have arguably been resolved th rough normal, or
at least less severe means. It may therefore be that the powers created by these
Acts are inappropriately broad.
In general constitutional theory, the propriety of emergency powers is
determined by establishing the const itutional norm, whether the power in
question derogates from that norm, and whether this derogation is justied.3
However, the constitutional system in New Zealand does not provide for
legal means to evaluate the propriety of statutory powers. While the exercise
of public powers by the executive can be judicially reviewed, the content of
these powers cannot. e reason, of course, is that Parliament is sovereign
and its legislation beyond legal reproach. e only way to hold it accountable
for its actions is through political mea ns, that is, general elections. is
approach to constitutionalism is called politica l constitutionalism, and it
relies on a constitutionally conscientious legislator and a constitutionally
aware constituency.4
is paper argues that the constitutional safegua rds provided in this way
have not been working as suciently as they could. It appear s that Parliament
has, on occasion, provided for excessively extraordinary statutory powers
(such as in the case of the ECan Act and the CER Act) out of convenience
rather than necessity. e paper will rs t explore the concept of extraordinary
3 John Ferejohn and Pa squale Pasquino “ e law of the exception: A t ypology of emergenc y
powers” 2004 2(2) ICON 210 at 222, 223.
4 Mark Tushnet Comparative Constitutional Law (Edward Elgar Publi shing, Cheltenh am,
2014) at 47.
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