Hurunui/Kaikōura Earthquakes Recovery Bill

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.

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

(c)

facilitate co-ordinated efforts and processes used to bring about the short-term, medium-term, and long-term recovery and enhancement of affected communities; and

(d)

facilitate the restoration and improvement of the environmental, economic, social, and cultural well-being, and the resilience, of affected communities or of any affected persons.

Compare: 2011 No 12 s 3

4 Interpretation

(1)

In this Act, unless the context otherwise requires,—

council means—

(a)

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); and

(b)

a local authority specified for the purposes of this definition in an Order in Council made under section 16

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 11

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 (if any) 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 10; 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 that are provided by the Committee or a leader referred to in paragraph (c) (if any).

(2)

Where a draft of the order has been subject to the process under subsection (1)(b), (c), or (d), 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.

(3)

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

Compare: 2011 No 12 s 74

9 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.

10 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

(c)

grant an exemption from or modify a requirement or restriction imposed by the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, or the Parliamentary Privilege Act 2014; or

(d)

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

(2)

Subsection (1)(d) does not limit section 16.

Compare: 2011 No 12 s 71(6)

Hurunui/Kaikōura Earthquakes Recovery Review Panel

11 Hurunui/Kaikōura Earthquakes Recovery Review Panel

(1)

The Minister must appoint a Hurunui/Kaikōura Earthquakes Recovery Review Panel of up to 6 persons with relevant expertise or appropriate skills,—

(a)

1 of whom must be—

(i)

a former or retired Judge of the High Court; or

(ii)

a lawyer who has, for at least 7 years, held a New Zealand practising certificate as a barrister or as a barrister and solicitor; and

(b)

1 of whom must be an iwi representative; and

(c)

1 of whom must be nominated for appointment by Local Government New Zealand.

(2)

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.

(3)

The Minister must appoint one of the appointed members to be the convener of the Panel.

(4)

If, for any reason, the convener, or a person referred to in subsection (1)(a) to (c), 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 in place of the person referred to in subsection (1)(a) to (c); 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 or in place of the person referred to in subsection (1)(a) to (c).

(5)

If a person (A) is designated to act in the convener’s place under subsection (4) in relation to a matter or class of matters, references in this section and sections 12 and 13 to the convener must, in relation to the matter or matters, be treated as references to A.

(6)

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.

(7)

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

Compare: 2011 No 12 s 72

12 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)

The division must include the persons referred to in section 11(1)(a) to (c).

(4)

Subsections (2) and (3) are subject to section 11(4) and (5).

(5)

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 13 applies with any necessary modifications.

13 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 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

14 Orders revoked on 31 March 2018

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

15 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 other enactment; 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 10.

Compare: 2011 No 12 s 75

Other orders

16 Order in Council may specify additional local authorities and Acts

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, do either or both of the following:

(a)

specify 1 or more local authorities for the purposes of the definition of council in section 4:

(b)

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)(a) to specify a local authority only if the Minister is satisfied that—

(a)

an earthquake has occurred in, or significantly affected, the earthquake-affected area after this Act is enacted; and

(b)

the district or region or any part of the district or region of the local authority is affected by the earthquake to such an extent that it is necessary or desirable to apply the measures available under this Act.

(3)

The Minister may make a recommendation for an Order in Council under subsection (1)(b) 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 10(1)(a) to (c); and

(b)

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 that leader cannot be contacted after reasonable efforts have been made); and

(c)

the Minister has had regard to the comments on the draft order that are provided by the Committee or a leader (if any).

(4)

An order under section 7 that relates to an Act specified by an Order in Council under subsection (1)(b) may, in accordance with section 15(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 (3)(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.

17 Order to add Acts revoked if not approved by House

(1)

An Order in Council under section 16(1)(b) 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 16(1)(b) that is revoked under subsection (1) is also revoked at the same time.

18 Reasons for order

If the Minister makes a recommendation under section 16, 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

19 Application of Legislation Act 2012

(1)

Despite section 15(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

Repeal

20 Repeal of Act

This Act is repealed on 1 April 2018.

Schedule 1 Transitional, savings, and related provisions

s 5

Part 1 Provisions relating to this Act as enacted

There are no transitional, savings, or related provisions relating to this Act as enacted.

Schedule 2 Enactments to which order may relate

s 7

The enactments referred to in section 7 are—

Land and buildings

(1)

the Building Act 2004:

(2)

the Cadastral Survey Act 2002:

(3)

the Crown Pastoral Land Act 1998:

(4)

the Heritage New Zealand Pouhere Taonga Act 2014:

(5)

the Land Act 1948:

(6)

the Land Transfer Act 1952:

(7)

the Public Works Act 1981:

(8)

the Rating Valuations Act 1998:

Conservation, environment, and marine legislation

(9)

the Conservation Act 1987:

(10)

the Environment Canterbury (Transitional Governance Arrangements) Act 2016:

(11)

the Hazardous Substances and New Organisms Act 1996:

(12)

the Kaikōura (Te Tai o Marokura) Marine Management Act 2014:

(13)

the Marine and Coastal Area (Takutai Moana) Act 2011:

(14)

the Marine Mammals Protection Act 1978:

(15)

the Marine Reserves Act 1971:

(16)

the Reserves Act 1977:

(17)

the Resource Management Act 1991:

(18)

the Soil Conservation and Rivers Control Act 1941:

(19)

the Waste Minimisation Act 2008:

(20)

the Wildlife Act 1953:

Civil defence and earthquakes

(21)

the Civil Defence Emergency Management Act 2002:

(22)

the Earthquake Commission Act 1993:

(23)

the Hurunui/Kaikōura Earthquakes Emergency Relief Act 2016:

Health, education, and social

(24)

the Accident Compensation Act 2001:

(25)

the Education Act 1989:

(26)

the Health Act 1956:

(27)

the Social Security Act 1964:

Revenue

(28)

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

Local government

(29)

the Local Government Act 1974:

(30)

the Local Government Act 2002:

(31)

the Local Government Official Information and Meetings Act 1987:

(32)

the Local Government (Rating) Act 2002:

Transport

(33)

the Government Roading Powers Act 1989:

(34)

the Land Transport Act 1998:

(35)

the Land Transport Management Act 2003:

(36)

the Maritime Transport Act 1994:

(37)

the New Zealand Railways Corporation Act 1981:

(38)

the Railways Act 2005:

(39)

the Road User Charges Act 2012:

(40)

the Utilities Access Act 2010:

Primary industries

(41)

the Animal Products Act 1999:

(42)

the Animal Welfare Act 1999:

(43)

the Fisheries Act 1996:

(44)

the Food Act 2014:

(45)

the Wine Act 2003:

Other

(46)

the Corrections Act 2004:

(47)

any Act 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:

(48)

an Act that replaces (in whole or in part) an Act referred to in any of paragraphs (1) to (47):

(49)

an Act specified for the purposes of this schedule in an Order in Council made under section 16:

(50)

regulations made under an Act referred to in any of paragraphs (1) to (48) or specified under paragraph (49):

(51)

any plan, programme, bylaw, or rule made under an enactment referred to in any of paragraphs (1) to (50).