Hurunui/Kaikōura Earthquakes Recovery Bill

  • enacted

Hurunui/Kaikōura Earthquakes Recovery Bill

Government Bill

214—1

Explanatory note

General policy statement

The Hurunui/Kaikōura Earthquake Recovery Bill (the Bill) enables the next phase of recovery of the main affected areas (Kaikōura, Hurunui, Marlborough, and Wellington) following the earthquake sequence that started on 14 November 2016 with a magnitude 7.8 earthquake 15 km north-east of Culverden in the South Island.

Purpose

The general purpose of the Bill is to assist the earthquake-affected areas and their councils and communities. In particular, the purpose is to assist economic recovery, planning processes, rebuilding and recovery of land and infrastructure, and increasing safety and resilience, as these relate to people, buildings, and natural environments. In addition, there is provision for the legislation to apply to areas indirectly affected by the earthquake sequence. This is particularly important with significant pieces of transport infrastructure, where damage to Centreport, and to the road and rail corridor between Ward and Cheviot, has knock-on effects across the state highway and coastal network.

Delegated legislation

The Bill creates an Order in Council mechanism (with necessary checks and balances) that permits the Governor-General to make Orders in Council on the recommendation of the relevant Minister to exempt, modify, or extend provisions of certain enactments. The reference to relevant Minister means, for example, the Minister for Building and Housing will be the relevant Minister if changes are proposed to the Building Act 2004.

This process facilitates recovery without needing to anticipate every power or statutory provision that may need to be amended to achieve the Bill’s purpose.

An Order in Council process was included in the Canterbury Earthquake Response and Recovery Act 2010 and continued in the Canterbury Earthquake Recovery Act 2011. The mechanism attracted some criticism. Its operation, however, was largely successful in providing for recovery activities for the greater Christchurch area. There were around 60 Orders in Council and no successful judicial challenges. Not all requests for Orders in Council were granted.

The Order in Council mechanism is designed to be flexible to deal with a range of potential matters: for instance, temporary housing, accommodation supplements, streamlining planning and consenting processes, undertaking geotechnical assessment, and providing greater flexibility around tax reporting deadlines.

There are a number of controls in the Bill to provide checks and balances on the process, which go beyond those in the Canterbury legislation. These checks and balances are as follows:

  • the order must be necessary or desirable for the proposed purpose, and the extent of the order must not be broader than is required:

  • there is a list of Acts that an order can relate to, and some Acts are specifically excluded (for example, the New Zealand Bill of Rights Act 1990 and the Electoral Act 1993):

  • a Review Panel, which must have iwi and local government representation and legal expertise, will review draft orders and provide advice to the relevant Minister:

  • the Minister will be required to publish his or her reasons for recommending an Order in Council, to increase transparency:

  • providing draft orders to the Regulations Review Committee, or to leaders of political parties if the House is adjourned:

  • providing for sunset clauses for both the legislation and any orders.

There is provision to add additional local authorities (in the event of another earthquake after enactment affecting the area of the authority) and to add additional Acts if it is necessary or desirable to do so for the purpose of the Bill.

The House of Representatives must confirm the inclusion of additional Acts within a specified period.

Timing

The powers in this Bill will come into force as soon as possible because it is expected that there is a need to progress some Orders in Council before the House is adjourned in December. The Bill has a repeal date of 1 April 2018.

If another emergency were to happen affecting the areas covered by this Bill, the Civil Defence Emergency Management framework would operate. This Bill does not alter the roles of the Ministry of Civil Defence and Emergency Management, the Civil Defence Emergency Management Groups, emergency services, or the New Zealand Defence Force.

Departmental disclosure statement

The Department of the Prime Minister and Cabinet is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

The Department of the Prime Minister and Cabinet produced a regulatory impact statement on 28 November 2016 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides for the Bill to come into force on the day after the date of Royal assent.

Part 1Preliminary provisions

Clause 3 provides that the purpose of the Bill is to assist the earthquake-affected area and its councils and communities to respond to, and recover from, the impacts of the earthquakes that occurred on 14 November 2016 in Hurunui and Kaikōura, including their aftershocks (the Hurunui/Kaikōura earthquakes or earthquakes).

Clause 4 defines terms used in the Bill, including earthquake-affected area.

Clause 5 relates to transitional, savings, and related provisions.

Clause 6 provides that the Bill binds the Crown.

Part 2Orders in Council

Clause 7 provides for Orders in Council (an order) to be made to grant exemptions from, modify, or extend any provisions of an enactment referred to in Schedule 2.

An order can be made only in connection with the earthquake-affected area.

An order is made on the recommendation of the Minister responsible for the administration of the enactment (the relevant Minister).

Key restrictions on orders

Clause 8 provides that the relevant Minister must not recommend the making of an order unless certain procedural steps are followed. These include—

  • the relevant Minister being satisfied that the order is necessary or desirable for the purpose of this Bill, that the extent of the order is not broader than reasonably necessary, and that the order does not breach clause 10; and

  • a review of a draft of the order by the Panel appointed under clause 11; and

  • providing a draft of the order to the Regulations Review Committee or, 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); and

  • having regard to the recommendations of the Panel and the comments provided by the Committee or a party leader.

Clause 9 requires the relevant Minister to give reasons for his or her recommendation.

Clause 10 imposes further restrictions on orders. For example, an order cannot modify a requirement or restriction imposed by constitutional statutes (including the New Zealand Bill of Rights Act 1990).

Hurunui/Kaikōura Earthquakes Recovery Review Panel

Clauses 11 to 13 provide for the Panel. The functions of the Panel are to—

  • review draft orders; and

  • provide advice on request to the Minister responsible for the Bill and the relevant Minister in relation to orders that may be required.

Further provisions about orders

Clause 14 provides that orders are revoked on 31 March 2018 (unless sooner revoked).

Clause 15 provides for the validity of orders. It allows an order to be retrospective to a date not earlier than 14 November 2016.

Other orders

Clause 16 provides for additional areas and Acts to be added to the application of the Bill in certain limited circumstances.

Clause 17 provides that an Order in Council to add an Act to the application of the Bill is revoked if it is not approved by House of Representatives.

Clause 18 requires the Minister to give reasons for his or her recommendation under clause 16.

Application of Legislation Act 2012

Clause 19 confirms that Orders in Council made under the Bill are disallowable instruments and legislative instruments under the Legislation Act 2012.

Repeal

Clause 20 provides for the repeal of the Bill on 1 April 2018.