Friday, February 25, 2011

Potentialy unlawful

This morning, in response to the latest Christchurch earthquake, the government cancelled the census. According to Patrick Gower, they repeatedly refused to give any commitment on when it would be run.

While I'm sure its a reasonable response in the situation, it is also clearly unlawful. Section 23 (1) of the Statistics Act 1976 is very clear:

The census of population and dwellings of New Zealand shall be taken by the Department in the year 1976 and in every fifth year thereafter.
While there's no criminal penalty for failing to do so, its as binding on the government as the requirement to hold elections every three years.

Hopefully, the cancellation will merely be a delay, and we'll be filling out our forms later in the year. If not, then the government will have to amend the law. The proper way of doing this is of course through Parliament. It would be one of the few cases where extraordinary urgency was justified, and I have no doubt such an amendment would pass unanimously.

What worries me is that the government might not do that. After all, they have the Canterbury Earthquake Response and Recovery Act; isn't this exactly what it was designed for?

Well, no. CERAA is very explicit: its purpose is to "facilitate the response to the Canterbury earthquake", meaning "the earthquake that occurred on 4 September 2010 in Canterbury, and includes all of its aftershocks". This is a new earthquake, so CERRA cannot legally be used.

But the government has a possible solution: use CERRA to modify itself! It wouldn't need to muck with the prohibited sections (listed here), so they could certainly legally do that. But CERRA was constitutionally objectionable, and abusing it in this fashion would be even more so. Unchecked, unreviewable, self-modifying emergency powers. Which is one of the things people in the Middle East are revolting against ATM.

Sadly, given this government's habits of exercising power, I think it is their most likely solution. But I am very much hoping to be wrong on this one.