Friday, October 22, 2010

Why we need judicial oversight

When the government passed the Canterbury Enabling Act, a law which allowed Gerry Brownlee to change any law, for any reason, with just a flick of his pen, a lot of people were concerned. Such powers are obviously open to abuse, and the government's promises not to do so obviously an insufficient safeguard. Now, with the government panicking over the fate of a movie, we may be about to see such an abuse, with suggestions they could use the powers of the Enabling Act to amend our employment laws for the benefit of Peter Jackson and a bunch of Hollywood money men. To be fair to Gerry Brownlee, he has not threatened such a move (he certainly doesn't mention it in the RNZ interview people are pointing to), and its hard to see why he would when he could just ram it through as proper law under all-stages urgency. But what if he does?

What's clear is that the law's supposed "safeguard" - review by the Regulations Review Committee under the Regulations (Disallowance) Act 1989 - would utterly fail in such an eventuality. Despite such an amendment clearly being outside the purpose of the law (it being hard to see how making a movie is necessary for the reconstruction of Canterbury) and therefore ultra vires, no member of the Regulations Review Committee is going to want to stick their neck out and expose themselves to a public backlash by declaring it so. The "safeguard" would be ineffective, even in the face of a regulation which was clearly unlawful.

Simply contemplating this possibility shows us what a constitutional affront the Enabling Act was. And it makes something crystal clear: we cannot trust politicians to review the application of this Act, because when push comes to shove, they lack the independence required to uphold the law. We need judicial, not political, oversight.