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Uninformed & (basically) overnight - the Severe Weather Emergency Recovery Legislation Bill
Over-reach via Orders in Council, legacy extensive secrecy provisions continuing to & ignorance in this Bill... & one day to submit!
It’s due 5pm today - the 29th. It’s a real WTF.
So, here’s my rushed effort:
1) This Bill is objectionable and should be rejected as it constitutes a massive over-reach and paves the way for significant abuse of power. It is also pervasively ignorant of one of the greatest risks to local regions following a severe weather event, the threat to source water and drinking water.
2) Water and the threat to drinking water sources are strangely, not mentioned once by the Bill drafters.
3) The broad scope of the Bill in combination with the granting of extensive powers as delegated legislation produces law-making powers that can be and will be cloaked in secrecy. The secrecy is granted to Ministers throughout the law-making processes and existing secrecy provisions are patently undemocratic.
4) There is no explanatory reasoning which meaningfully justify the powers. No reports, no Regulatory Impact Statement, no supplementary papers – no information was supplied as background justification and reasoning for the extensive powers that would be granted under this legislation.
5) The Bill continues this Labour Governments’ efforts to erode democracy via the granting of extensive powers while continuing with historic secrecy provisions granted to officials, including Ministers and those involved in the drafting of delegated legislation.
6) This Bill persists with ignoring the Parliamentary Commissioners work on the human and environmental health risks posed by synthetic chemical contaminants. The Hawkes Bay’s storm event demonstrates, will be a major challenge and present a severe health risk, following such an event. It remains unclear as to who is responsible for contaminant testing and how this is managed.
7) The Government, officials and the Parliamentary Counsel Office persist in the drafting of legislation that fails to provide for policy and scientific evidence that is dissenting or contradictory to that of powerful financial and political interests.
8) In emergencies the scientific and anecdotal evidence will be contested, contradictory and difficult to understand. ‘Truth’ arises from free and open debate and discussion from the exchange of information.
9) This Bill fails to acknowledge that the management of pollution and excessive runoff from a stormwater will be a key feature from such a severe weather event. The pervasive ignorance of the toxicological stressors from industrial, agricultural, and urban sources to New Zealand freshwater has been steadfastly ignored by central government for decades.
10) Ministers and officials focus more on vague terms such as the restoration and improvement of the economic, social, and cultural well-being, and climate change and providing for economic recovery while ignoring pressing environmental issues.
11) Sir Geoffrey Palmer and Andrew Butler’s 2018 stated ‘the New Zealand style of government is already authoritarian’. This was made before the current political regime lowered the barriers to extensive use of delegated legislation.
A QUORUM OF 3 FOR DELEGATED LEGISLATION
12) While the barriers to the use of secondary legislation have been weakened, I observe that the Cabinet Manual 2017 remains the authoritative document for Ministerial conduct.
I have extracted these sections as I consider there is inadequate public awareness of the issue that as the boundaries to the application of secondary legislation are lowered, secrecy provisions for the Ministers who form the Executive Council remain entrenched:
‘Orders in Council are the main method, apart from Acts of Parliament, by which the government implements decisions that require the force of law. Meetings of the Executive Council are called for the purpose of making such orders and carrying out other formal acts of state.’ Cabinet Manual 2017 p.10
Preparing items for Executive Council
1.39 The Parliamentary Counsel Office is responsible for drafting most of the documents for the Executive Council.
1.40 The submission of almost all matters for consideration by the Executive Council must first be approved by Cabinet. Once Cabinet authorises the submission of a proposed item, the item will be submitted to the Governor-General in Executive Council (in most cases on the same day).
1.41 A few items, however, are drafted by the department concerned and are submitted directly to the Executive Council by the relevant Minister. In general, these are items that are not published in the legislative instruments series, items affecting only a particular local district, or items required to give effect to the determinations of statutory bodies.
Technical requirements for Orders in Council that are submitted directly to the Executive Council are included in the information on the Executive Council in the CabGuide.
1.44 The Letters Patent provide that in a situation of emergency or urgency, the Executive Council can meet in any way that allows all members to participate effectively during the whole of the meeting. This provision allows the Executive Council to meet by teleconference or videoconference, if necessary.
1.45 The Letters Patent provide that two members of the Executive Council, plus the presiding officer, constitute a quorum. When available to attend, the Governor-General presides over the Executive Council. When the Governor-General is not available, the most senior member of the Executive Council present at the meeting is the presiding officer.
1.49 Executive Council proceedings are confidential. When members of the Executive Council are appointed, they swear or affirm an oath under the Oaths and Declarations Act 1957 that they “will not directly nor indirectly reveal such matters as shall be debated in Council and committed to [their] secrecy”.
13) The Legislation Design and Advisory Committee, Legislation Guidelines, 2021 Edition offer some guide to the behaviour of officials:
‘People and institutions that wield power must do so within legal limits, and be accountable for their actions; everybody is equal before the law and is subject to it.’
14) I consider that such ‘legal limits’ are increasingly non-sensical when the law can be developed and applied, so extensively and so quickly, away from public scrutiny and critique.
COVID-19 IS THE TEST CASE FOR OVER-REACH & ABUSE OF POWER
15) Citizens understand and observe this Governments’ actions to increase and extend their flexibility around law-making, while at the same time failing to increase transparency relating to the making of new laws and rules.
16) Often there are good reasons for loosening laws in an emergency. Following the Canterbury earthquake, the Canterbury Earthquake Response and Recovery Act 2010 and the Canterbury Earthquake Recovery (CER) Act 2011 were amended to enable Orders in Council to be made. Most Orders expired or lapsed with the expiry of the CER Act in 2016.
17) However, a continuance and extension of such relaxations and powers can establish the conditions for tyrannical overreach and abuse of power.
18) Citizens observe that the Attorney General the Hon David Parker’s actions in lowering Legislation Act 2019 and the Secondary Legislation Act 2019 smoothed the way for extensive use of secondary legislation.
19) This Labour government has, effectively granted Ministers open access via the use of delegated or secondary legislation to achieve policy purposes outside public scrutiny.
20) The Attorney General’s powers appeared to increase with the Legislation Act 2019.
21) Ministers have increased capacity to produce rafts of delegated legislation, but citizens and residents are unable to:
a) make an Official Information Act request to understand how the Parliamentary Counsel Office receive information, and from whom.
b) Access and understand the information that was received that would justify the lawmaking.
22) Ministerial correspondence concerning the making of Orders in Council, how advice is received and whom it is received from is a hidden from public access.
23) Attorney-General the Hon David Parker was responsible for production, release and deployment of the COVID-19 Public Health Response Act 2020 which was introduced and received Royal Assent in May 2020. This Act was the test-run for the making of delegated legislation, out of sight of the public. No requirement that Ministers should consider controversial or contradictory information that might disrupt policy plans.
24) The actions of officials and media demonstrated that good scientists, good whistleblowers, including public health physicians will not only risk their professional credibility, but that they will be abused and shamed for providing dissenting views.
25) COVID-19 demonstrated how the Minister for COVID-19 and New Zealand’s current Prime Minister Chris Hipkins, could role out mandates according to a pre-determined schedule, but never demonstrate adequate scrutiny of the extensive literature that demonstrated injury and death from a novel gene therapy that contained the instructions to produce an inflammatory spike protein, inside the human body.
26) We observe some 2 million citizens and residents were required to be exposed to that novel, emergency biotechnology, or face exclusion from public and economic life.
27) Law-making under the COVID-19 regime forms a case study which demonstrates that Officials will set aside controversial information and take action that threatens and restricts human rights and freedom.
RECOMMENDED CHANGES TO THE CURRENT BILL
28) This Bill should be amended to:
a) Ensure immediate post-enactment scrutiny/public submissions.
b) Require that the reasoning for the Orders must produced in report form and be available for public scrutiny under the Official Information Act.
c) Ensure that Orders in Council must be subject to confirmation by Parliament.
d) Shorten the sunset clause to end within 2 years from commencement of the Act.
e) Designate ESR as the responsible authority for overseeing the screening and testing of freshwater, source water for drinking water, and drinking water.
f) Ensure that instrumentation and technologies are on hand for the ESR to ensure a rapid response.
g) Insert an obligation for adequate funding for the ESR so they may adequately carry out their duties.
h) Require reports from regions concerning water pollution to be publicly released as they are produced. Required reports includes:
i) Public access to all screening and testing undertaken, including limits of detection etc.
ii) Public disclosure of white/grey papers from councils, water suppliers and treatment plants.
i) Ensure the legislation provides for the institution and funding of a public forum for public and scientific advice and information.
i) Where that information may be accessible to the Severe Weather Events Recovery Review Panel
ii) This information may contain information that is contradictory, dissenting or critical of official government policy.
iii) Where whistleblowers are protected, and where information may be anonymously forwarded.
j) To require that the Severe Weather Events Recovery Review Panel include individuals with expertise in both public health toxicology and environmental toxicology who have capacity to understand the threat posed by contaminant mixtures following an event.
k) Require that the Severe Weather Events Recovery Review Panel are required to publicly consider risk posed by contaminant mixtures that have been released or deposited by the event.
l) Include obligations to provide funding for expert analysis of the toxicological profile of water and soil.
i) This includes the potential for contaminant mixtures to be endocrine disrupting, be mutagenic and cancer causing.
m) Include obligations that all scientific funding remains separate from the Ministry of Business, Innovation and Employment, who have pervasive conflicts of interest as the Ministry advances economic growth which conflicts with the greater obligation of the Government to protect human and environmental health.
Thanks to Assoc Professor Dean Knight for the heads up… and a bit of Twitter direction. Threads such as this one - by experts are all too rare. It’s well worth a read.
 Severe Weather Emergency Recovery Legislation Bill
 Hon Kieran McAnulty Severe Weather Emergency Recovery Legislation Bill
 Past Orders in Council https://dpmc.govt.nz/our-programmes/greater-christchurch-recovery-and-regeneration/past-orders-council
 Bruning J. 2021 October consultations to the COVID-19 Amendment Bill. Were the NZ public gamed? https://jrbruning.substack.com/p/2021-october-consultations-to-the
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