On Monday, the Government introduced the second bill in response to Cyclone Gabriel and the heavy rain in the North Island — the Severe Weather Emergency Recovery Legislation Bill (the Bill). While the Severe Weather Emergency Legislation Act that was passed in mid-March was directed at improving the immediate response to the emergencies, this Bill is instead directed at aiding the recovery by allowing the government to bypass legislative constraints.
The primary change this Bill introduces is that it provides for Orders in Council (Orders) to be made — similar to what occurred after the Christchurch and Kaikōura earthquakes. The stated purposes of the Bill are to assist communities and local authorities affected the severe weather events to respond to and recover from, the impacts of the severe weather events. The Bill, if passed, would then repeal the sections gradually, with the whole Act being repealed on 31 March 2028.
The Bill is expected to be passed very quickly, after only allowing one day for submissions.
The key changes in this Bill are:
Orders in Council
The Bill provides for Orders to be made to grant exemptions from, modify, or extend any provision of a range of Acts where the Order is made in connection with a severe weather event affected area. Orders are made by the Governor-General on the recommendation of the “relevant Minister” which is the Minister responsible for administering that Act.
The Government says that these powers are needed to help facilitate the government doing things that aid recovery without the need to consider every statutory provision that needs to be amended to allow the purposes of the Bill to be achieved. This is an extraordinary power to confer on a Government Minister – allowing him or her to override Acts of Parliament and the regulations and other rules made under those Acts. The extent to which this is necessary considering the circumstances is debatable.
Some checks and balances on this power are also provided for in the Bill. Included in these restrictions on Orders are that the relevant Minister must be satisfied the Order is necessary or desirable for 1 or more purposes of the Bill, that adequate consultation has taken place, that there are reasons for the Order, and that the extent of the Order is not broader than reasonably necessary. Additionally, at least once every 6 months, the Minister must also present to Parliament, a report listing and describing the Orders made during the period.
Draft Orders must be made available to relevant persons and the public generally, who will be able to make submissions within 3 working days of the invitation from the relevant Minister. However, if the Minister considers that there is urgency, the Order may be made as soon as practicable without engagement with the relevant persons and the public. In short, Orders may be made without public engagement if the Minister deems it necessary. If this reason is relied on, the relevant Minister must publish the reasons for not engaging when the order is published.
Additionally, a Severe Weather Events Recovery Review Panel (the Panel) would be established that should include those with knowledge or experience in the areas of law, environmental protection and climate change, Māori or community interests in the affected areas, and emergency response and recovery. The Minister must also consider appointing those with local perspectives in the affected areas of mana whenua, mātauranga Māori, tikanga, and te ao Māori. All draft Orders must first be reviewed by this Panel of 12 persons who will provide recommendations to the relevant Minister and the Minister responsible for the Bill. The relevant Minister must have regard to the Panel’s recommendations and the comments of the relevant Parliamentary Committee before making an Order.
Amendments to other legislation
The Bill also looks to make minor amendments to three pieces of legislation.
The Local Government Act 2002 is amended to relax requirements on authorities in affected areas so that they can adopt a consultation document in relation to its long-term plans and amend the long-term plan without a report from the Auditor-General. This is to speed up amendments to the long-term plan — with water infrastructure being a key focus. The Bill also provides that councils in affected areas can adopt an annual plan for the 2023/2024 financial year before 30 September 2023; instead of having to adopt one before 1 April 2023.
The Bill also amends the Local Government (Auckland Council) Act 2009 to change the date that a council-controlled organisation must hold a meeting in public to consider comments from shareholders on the draft statement of intent for the following financial year. The Bill would change the date from “any time before 30 June” to “any time before 30 September”. This change is a practical matter so that these organisations have an extension of time due to Auckland’s weather events.
For the Resource Management Act 1991 the Bill looks to amend the definition of ‘area’ to include the Manawatū and Rangitikei districts. It also extends ‘culturally significant land’ to include land in or near the area described in section 11 and schedule 3 of the Ngā Rohe Moana o Nga Hapū o Ngāti Porou Act 2019.
Special thanks to law clerk Will Gale for preparing this article with support from Partner Nick Crang. For further information, please contact a member of the Disaster and Recovery Support, Public Law or Resource Management teams.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
