Hurunui/Kaikōura Earthquakes Recovery Act 2016

1 Title

This Act is the Hurunui/Kaikōura Earthquakes Recovery Act 2016.

2 Commencement

This Act comes into force on the day after the date of Royal assent.

Part 1 Preliminary provisions

3 Purpose

The purpose of this Act is to assist the earthquake-affected area and its councils and communities to respond to, and recover from, the impacts of the Hurunui/Kaikōura earthquakes and, in particular, to—

(a)

provide for economic recovery; and

(b)

provide for the planning, rebuilding, and recovery of affected communities and persons, including—

(i)

the repair and rebuilding of land, infrastructure, and other property of affected communities or of any affected persons; and

(ii)

safety enhancements to, and improvements to the resilience of, that land, infrastructure, or other property; and

(iii)

facilitating co-ordinated efforts and processes for short-term, medium-term, and long-term recovery; and

(iv)

facilitating the restoration and improvement of the economic, social, and cultural well-being, and the resilience, of affected communities or of any affected persons; and

(v)

facilitating the restoration of the environment.

Compare: 2011 No 12 s 3

4 Interpretation

(1)

In this Act, unless the context otherwise requires,—

council means the Hurunui District Council, the Kaikoura District Council, the Marlborough District Council, the Wellington City Council, the Hutt City Council, the Canterbury Regional Council (Environment Canterbury), and the Wellington Regional Council (Greater Wellington)

earthquake-affected area means, to the extent that they are affected (whether directly or indirectly) by the Hurunui/Kaikōura earthquakes,—

(a)

the districts or regions of the councils; and

(b)

the parts of the coastal marine area (within the meaning of section 2(1) of the Resource Management Act 1991) that are part of, or adjacent to, those districts and regions; and

(c)

the areas of other districts or regions that contain transport or other infrastructure

enactment has the same meaning as in section 29 of the Interpretation Act 1999, and also includes any plan, programme, bylaw, or rule made under any Act or regulations

Hurunui/Kaikōura earthquakes or earthquakes

(a)

means the earthquakes that occurred on 14 November 2016 in Hurunui and Kaikōura; and

(b)

includes any earthquake that occurs in, or significantly affects, the earthquake-affected area (as defined in paragraphs (a) and (b) of the definition of that term) on or after 14 November 2016

local authority has the same meaning as in section 5(1) of the Local Government Act 2002

Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is responsible for the administration of this Act

order means an Order in Council made under section 7

Panel means the Hurunui/Kaikōura Earthquakes Recovery Review Panel established under section 12

relevant Minister,—

(a)

in relation to an enactment (other than this Act or an instrument referred to in paragraph (b)), means the Minister who is, under the authority of any warrant or with the authority of the Prime Minister, responsible for the administration of the enactment:

(b)

in relation to a plan, programme, bylaw, or rule, means the Minister who is, under the authority of any warrant or with the authority of the Prime Minister, responsible for—

(i)

the administration of the Act under which that instrument is made; or

(ii)

if that instrument is made under regulations, the administration of the Act under which the regulations are made.

(2)

If there is more than 1 relevant Minister for an order, the references in this Act to the relevant Minister must be treated as references to those Ministers acting together (unless the context otherwise requires).

5 Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

6 Act binds the Crown

This Act binds the Crown.

Part 2 Orders in Council

7 Governor-General may make Orders in Council

(1)

The Governor-General may, by Order in Council made on the recommendation of the relevant Minister, grant exemptions from, modify, or extend any provisions of an enactment referred to in Schedule 2 in connection with the whole or a part of the earthquake-affected area.

(2)

An exemption from, modification of, or extension of a provision—

(a)

may be absolute, or subject to terms or conditions; and

(b)

may be made by—

(i)

stating alternative means of complying with the provision; or

(ii)

substituting a discretionary power for the provision.

(3)

An exemption from, modification of, or extension of a provision may be for the purposes of enabling the relaxation or suspension of provisions in enactments referred to in Schedule 2 that—

(a)

may divert resources away from the effort to—

(i)

efficiently respond to the damage caused by the earthquakes:

(ii)

minimise further damage; or

(b)

may not be reasonably capable of being complied with, or complied with fully, owing to the circumstances resulting from the earthquakes.

(4)

Subsections (2) and (3) do not limit subsection (1).

(5)

In this Act, modify, in relation to a provision, includes disapplying or suspending the provision.

Compare: 2011 No 12 s 71

Key restrictions on orders

8 Relevant Minister may recommend order only for purposes of Act, etc

(1)

The relevant Minister must not recommend the making of an order unless—

(a)

the relevant Minister is satisfied that—

(i)

the order is necessary or desirable for the purpose of this Act; and

(ii)

the extent of the order is not broader than is reasonably necessary to address the matters that gave rise to the order; and

(iii)

the order does not breach section 11; and

(b)

a draft of the order has been reviewed by the Panel; and

(c)

a draft of the order has been provided to—

(i)

the Committee of the House of Representatives that is responsible for the review of disallowable instruments; or

(ii)

if the House of Representatives is adjourned, each leader of a political party represented in Parliament (unless a leader cannot be contacted after reasonable efforts have been made); and

(d)

the relevant Minister has had regard to—

(i)

the Panel’s recommendations on the draft order; and

(ii)

the comments on the draft order (if any) that are provided by the Committee or a leader referred to in paragraph (c) and that are provided within 3 working days after the date on which the draft order is first provided under paragraph (c) (or any longer time allowed by the relevant Minister); and

(e)

if the order relates to the Resource Management Act 1991, the relevant Minister has considered—

(i)

the effects on the environment of any controls provided for in the order; and

(ii)

whether those controls avoid, remedy, or mitigate any adverse effects; and

(f)

the engagement process under section 9 has been complied with.

(2)

The draft order provided to the Panel and under subsection (1)(c) must be accompanied by a draft of the relevant Minister’s reasons for a recommendation under subsection (1) (including why the draft order is appropriate).

(3)

Where a draft of the order has been subject to the process under subsection (1)(b), (c), (d), (e), or (f), that paragraph applies to a subsequent draft of the order only if the relevant Minister considers that, given the differences between the drafts, it would be appropriate to repeat the process.

(4)

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

(5)

Except as provided in subsection (4), nothing in this Act prevents a court from determining whether an order is authorised by this Act.

Compare: 2011 No 12 s 74

9 Engagement about proposal

(1)

For the purposes of section 8(1)(f), the relevant Minister must—

(a)

make available a document referred to in subsection (2) to—

(i)

the persons or representatives of persons that the relevant Minister considers appropriate given the proposed effect of the order; or

(ii)

the public generally; and

(b)

invite those persons to make written comments on the document; and

(c)

give those persons 3 working days from the making of the invitation within which to make their comments to the relevant Minister (or any longer time allowed by the relevant Minister); and

(d)

have regard to those comments that are received within the 3-working-day period (or within the longer time allowed by the relevant Minister).

(2)

The document must include—

(a)

an explanation of what the proposal is intended to achieve; and

(b)

a description of the proposed effect of the order; and

(c)

an explanation of why the relevant Minister considers that the order is necessary or desirable for the purpose of this Act.

(3)

Subsection (1) and section 8(1)(f) do not apply, or do not apply to a person or class of persons, if the relevant Minister is satisfied that—

(a)

engagement is impracticable in the circumstances; or

(b)

the urgency of the situation requires that the order be made as soon as practicable without that engagement.

(4)

If subsection (3) is relied on, the relevant Minister’s reasons for relying on that subsection must be published together with the order.

10 Reasons for order

If the relevant Minister makes a recommendation under section 7, the relevant Minister’s reasons for making the recommendation (including why the order is appropriate) must be published together with the order.

11 Further restrictions on orders

(1)

Despite anything else in this Act, an order must not—

(a)

grant an exemption from or modify a requirement to—

(i)

release a person from custody or detention; or

(ii)

have any person’s detention reviewed by a court, Judge, or Registrar; or

(b)

grant an exemption from or modify a restriction on keeping a person in custody or detention; or

(d)

contain any provision that has the effect of amending a provision of this Act.

(2)

Subsection (1)(d) does not limit section 18.

Compare: 2011 No 12 s 71(6)

Hurunui/Kaikōura Earthquakes Recovery Review Panel

12 Hurunui/Kaikōura Earthquakes Recovery Review Panel

(1)

The Minister must appoint a Hurunui/Kaikōura Earthquakes Recovery Review Panel of up to 6 persons who have appropriate knowledge, skills, and experience to assist the Panel to perform its functions.

(2)

One of the members must be a former or retired Judge of the High Court (and that member will be the convener).

(3)

In appointing a person as a member, the Minister must—

(a)

consider whether the person has knowledge, skills, or experience relating to 1 or more of the following:

(i)

law, public administration, or local government:

(ii)

mātauranga Māori (Māori traditional knowledge) and tikanga Māori (Māori protocol and culture):

(iii)

environmental protection:

(iv)

the nature of the affected communities and the earthquake-affected area (for example, its rural or urban character); and

(b)

have regard to the views of—

(i)

Local Government New Zealand; and

(ii)

1 or more organisations, or representatives of organisations, that the Minister considers have knowledge, skills, or experience relating to mātauranga Māori and tikanga Māori in the earthquake-affected area.

(4)

A member of the Panel must be appointed by notice of appointment in writing that—

(a)

states the date on which the appointment takes effect; and

(b)

states the term of the appointment.

(5)

If, for any reason, the convener is unable or unwilling to act in relation to a matter or class of matters,—

(a)

the convener may designate any other member of the Panel to act in the convener’s place; or

(b)

if the convener is unable or unwilling to act under paragraph (a), the Minister may designate any other member of the Panel to act in the convener’s place.

(6)

If a person (A) is designated to act in the convener’s place under subsection (5) in relation to a matter or class of matters, references in this section and sections 13 and 14 to the convener must, in relation to the matter or matters, be treated as references to A.

(7)

An appointed member vacates office if he or she—

(a)

is removed by written notice given by the Minister; or

(b)

resigns by written notice given to the Minister.

(8)

The Department of the Prime Minister and Cabinet must provide administrative support for the Panel.

Compare: 2011 No 12 s 72

13 Panel may act by division

(1)

The convener may determine that the Panel may act in separate divisions of the Panel in relation to any matter or class of matters.

(2)

A division must consist of—

(a)

the convener; and

(b)

at least 3 other members of the Panel selected by the convener.

(3)

Subsection (2) is subject to section 12(5) and (6).

(4)

For the purposes of acting in relation to any matter or class of matters referred to a division of the Panel, the Panel consists of the division and section 14 applies with any necessary modifications.

14 Functions of Panel

(1)

The functions of the Panel are—

(a)

to review draft orders; and

(b)

to provide advice on request to both the Minister and the relevant Minister in relation to orders that may be required for the purpose of this Act.

(2)

Within 3 working days after the date on which a draft order is received for review, or any longer time allowed by the relevant Minister, the Panel must—

(a)

review the draft; and

(b)

give the Panel’s recommendations to both the Minister and the relevant Minister.

(3)

A review by the Panel may be conducted in any manner that the convener thinks appropriate, including by telephone or video conference.

(4)

The convener has a casting vote if there are more than 2 members voting and there is an equality of votes.

(5)

The relevant Minister must ensure that the Panel’s recommendations on a draft order are publicly available on an Internet site.

(6)

The Panel’s recommendations must include the Panel’s reasons for making the recommendations.

(7)

The relevant Minister must, as soon as practicable after receiving the Panel’s recommendations on a draft order, present a copy of the recommendations to the House of Representatives.

Compare: 2011 No 12 s 73

Further provisions about orders

15 Orders revoked on 31 March 2018

(1)

Every order is revoked on the close of 31 March 2018 (unless sooner revoked).

(2)

However, subsection (1) does not apply to an order referred to in clause 1 of Schedule 1 (which provides for the order to continue in force until the close of 30 June 2021, unless it is sooner revoked).

16 Validity of orders

(1)

An order may not be held invalid just because—

(a)

it is, or authorises any act or omission that is, inconsistent with any enactment referred to in Schedule 2; or

(b)

it confers any discretion on, or allows any matter to be determined or approved by, any person.

(2)

An order may be expressed to come into force on a day that is before, on, or after the date on which it is made, but not earlier than 14 November 2016; and the order comes into force or, as the case may be, is deemed to have come into force accordingly.

(3)

An order may be retrospective only to the extent provided for in subsection (2).

(4)

So far as it is authorised by this Act, an order has the force of law as if it were enacted as a provision of this Act.

(5)

This section is subject to section 11.

Compare: 2011 No 12 s 75

17 Actions taken before determination of invalidity

(1)

This section applies if a court determines that an order is not authorised by this Act.

(2)

Any action taken under, or in reliance on, the order before the determination is made must be treated as valid and effective to the extent that it would have been had the order been authorised by this Act.

(3)

However, if the court considers that it is just to do so, the court may order that subsection (2) does not apply (whether generally or in particular circumstances).

Other orders

18 Order in Council may specify additional Acts

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, specify 1 or more Acts for the purposes of Schedule 2.

(2)

The Minister may make a recommendation for an Order in Council under subsection (1) only if—

(a)

the Minister is satisfied that—

(i)

the order is necessary or desirable for the purpose of this Act; and

(ii)

the order does not breach section 11(1)(a) to (c); and

(b)

a draft of the order has been provided to each leader of a political party represented in Parliament; and

(c)

the Minister is satisfied that there is unanimous or near unanimous support for the order from those leaders.

(3)

The draft order provided under subsection (2)(b) must be accompanied by a draft of the Minister’s reasons for a recommendation under subsection (2) (including why the draft order is appropriate).

(4)

An order under section 7 that relates to an Act specified by an Order in Council under subsection (1) may, in accordance with section 16(2) and (3), come into force before, on, or after the date on which the order under section 7 is made, but not earlier than 14 November 2016.

(5)

Where a draft of the Order in Council has been subject to the process under subsection (2)(b) or (c), that paragraph applies to a subsequent draft of the order only if the Minister considers that, given the differences between the drafts, it would be appropriate to repeat the process.

(6)

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

(7)

Except as provided in subsection (6), nothing in this Act prevents a court from determining whether an Order in Council under subsection (1) is authorised by this Act.

19 Order to add Acts revoked if not approved by House

(1)

An Order in Council under section 18 is revoked (unless it is earlier revoked) on the expiry of the relevant period if no motion to approve the order is agreed to by the House of Representatives within that period.

(2)

The relevant period is the longer of the following:

(a)

the period of 10 sitting days of the House of Representatives after the date on which the Order in Council is made:

(b)

the period of 28 days after the date on which notice that the Order in Council has been made is given in the Gazette.

(3)

An order under section 7 that relates to an Act specified by an Order in Council under section 18 that is revoked under subsection (1) is also revoked at the same time.

20 Reasons for order

If the Minister makes a recommendation under section 18, the Minister’s reasons for making the recommendation (including why the Order in Council is appropriate) must be published together with the order.

Application of Legislation Act 2012

21 Application of Legislation Act 2012

(1)

Despite section 16(4), an Order in Council made under this Act is a disallowable instrument for the purposes of the Legislation Act 2012.

(2)

An Order in Council made under this Act is also a legislative instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

Compare: 2011 No 12 s 76

Report on operation of Act

22 Report on operation of Act

(1)

The Minister must, at least once every 6 months, present to the House of Representatives a report relating to the operation of this Act since the last report was presented (or, in the case of the first report, since the commencement of this Act).

(2)

The report must, for the period covered by the report, include—

(a)

a list of the Orders in Council made under this Act during the period; and

(b)

a brief description of those orders.

Repeal

23 Repeal of Act

(1)

Sections 7 to 20 and Schedule 2 are repealed on 1 April 2018.

(2)

The rest of this Act is repealed on 1 July 2021.

Schedule 1 Transitional, savings, and related provisions

s 5

Part 1 Provisions relating to this Act as enacted

1 Orders relating to local government administration (including rates and rating valuations) continue in force

(1)

This clause applies to an order that—

(a)

is in force immediately before 31 March 2018; and

(b)

relates only to the districts of 1 or more of the following:

(i)

the Kaikoura District Council:

(ii)

the Hurunui District Council:

(iii)

the Marlborough District Council; and

(c)

grants exemptions from, modifies, or extends any provision of 1 or more of the following:

(iv)

any enactment made under an Act referred to in any of subparagraphs (i) to (iii).

(2)

The order continues in force until the close of 30 June 2021 despite the repeal of section 7 (unless it is sooner revoked).

(3)

The order may be amended or revoked after 1 April 2018 as if the provisions repealed under section 23(1) were not repealed on that date.

2 Relevant Minister may act before commencement for purposes of engagement

Any act done before the commencement of this Act by a relevant Minister for the purposes of section 9 must be treated as validly done for those purposes.

3 Minister may act before commencement for purposes of Panel appointments

Any act done before the commencement of this Act by the Minister for the purposes of section 12 must be treated as validly done for those purposes.

Schedule 2 Enactments to which order may relate

s 7

The enactments referred to in section 7 are—

Land and buildings

(4)

Conservation, environment, and marine legislation

Civil defence and earthquakes

(19)

the Hurunui/Kaikōura Earthquakes Emergency Relief Act 2016:

Revenue

(20)

the Inland Revenue Acts (as defined in section 3(1) of the Tax Administration Act 1994):

Local government

Transport

Food safety

(34)
(35)

Other

(39)

any Act (other than the Public Finance Act 1989) to the extent that it relates to accounting records, the preparation, audit, approval, lodgement, or distribution of financial statements, or any other financial reporting obligations of any group, entity, or other person:

(40)

an Act that replaces (in whole or in part) an Act referred to in any of paragraphs (1) to (39):

(41)

an Act specified for the purposes of this schedule in an Order in Council made under section 18:

(42)

regulations made under an Act referred to in any of paragraphs (1) to (40) or specified under paragraph (41):

(43)

any plan, programme, bylaw, or rule made under an enactment referred to in any of paragraphs (1) to (42).

Legislative history

1 December 2016

Introduction (Bill 214–1), first reading and referral to Local Government and Environment Committee

8 December 2016

Reported from Local Government and Environment Committee, second reading, committee of the whole House, third reading

12 December 2016

Royal assent

This Act is administered by the Department of the Prime Minister and Cabinet.