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Law Reform Report

16 July 2013

Environment Canterbury election suspension breaches constitutional values

Proposed legislation that would extend the suspension of local body elections in Canterbury until 2016 is not justified and is a disturbing breach of the rule of law, the New Zealand Law Society says.

Legislation introduced and passed under urgency in 2010, without public consultation, suspended Environment Canterbury elections until 2013. The Environment Canterbury (Temporary Commissioners and Improved Water Management) Amendment Bill proposes to continue the suspension of elections for a further three and a half years, to 2016.

The convenor of the Law Society’s Rule of Law Committee, Austin Forbes QC, and committee member James Wilding, presented the Law Society’s submission to the Local Government and Environment Select Committee.

Mr Forbes said the Government’s decision to suspend local body democracy in Canterbury for a total of six and a half years in total is unjustified.

“Only a clearly demonstrable or overwhelming reason might justify the suspension of the democratic right to vote within a region for a period of six and a half years. This time frame cannot be said to be ‘temporary’,” Mr Forbes said.

When introducing the Bill to the House, Canterbury Earthquake Recovery Minister Gerry Brownlee cited the need to provide the Canterbury region with stable and effective governance to assist the earthquake recovery.

“That explanation cannot be said to justify the Bill’s suspension of local democracy. Parliament has already enacted the Canterbury Earthquake Recovery Act 2011 to facilitate earthquake recovery, and that Act gives sweeping emergency powers to the Minister and to the Canterbury Earthquake Recovery Authority”, Mr Forbes said.

Earlier this year ECan Chair Dame Margaret Bazley advised the Government that the commissioners recommended a return to democratic elections by 2013. Officials also recommended a transitional mixed-governance body, made up of elected councillors and government-appointed members. “Democratic decision-making in local government is a very important and legitimate expectation of citizens. The proposed further suspension of local body democracy runs counter to core constitutional values, most importantly that of a free and democratic society,” Mr Forbes said.

The Law Society believes that this issue is of real concern to the public, as well as lawyers, both in and beyond Canterbury, and says that the Bill should not proceed.

Complex technical issues in drafting of same-sex marriage bill

The Law Society says there is a need to consider some technical drafting matters in the Bill which would legalise same-sex marriage.

The head of the Law Society’s Law Reform Committee, Professor Paul Rishworth, presented the Law Society’s submission on the Marriage (Definition of Marriage) Amendment Bill to Parliament’s Government Administration Committee.

If enacted, the Bill would introduce same-sex marriage. Professor Rishworth told the select committee that members of the Law Society hold a range of views on that matter and the Law Society neither opposes nor supports the changes to the definition of marriage.

Instead, the Law Society submission is directed to a technical point of legislative drafting that Parliament needs to consider.

The proposer of the Bill said that the Bill was not intended to compel marriage celebrants to perform marriages contrary to their religious beliefs. However, in the Law Society’s view it is arguable that marriage celebrants who refuse to perform same-sex marriages will be acting unlawfully under the Human Rights Act 1993, the New Zealand Bill of Rights Act 1990, or both.

“We want to highlight arguable conclusions which seem to be at odds with the settled intentions of the Bill’s drafters. Whatever the position, the Law Society believes it makes sense to put the matter beyond doubt,” Professor Rishworth said.

The question which must then be considered is how wide any exemption would need to be. Professor Rishworth said the Marriage Act currently distinguishes between a “minister of religion” and other marriage celebrants. The select committee will have to consider whether any exemption applies to all marriage celebrants or just to ministers of religion.

Effectiveness of ACC workplace measures questioned

Evidence of comparative work injury rate statistics in New Zealand, Australia, Canada, Norway and the United Kingdom suggest that workplace health and safety programmes introduced by ACC in New Zealand over the last four decades have been ineffective, the New Zealand Law Society says.

In a submission on the Independent Taskforce on Workplace Health and Safety’s Safer Workplaces Consultation Document, the Law Society questions the effectiveness of the experience rating policy introduced in April 2011.

“There does not appear to be any evidence to support experience rating as effective in ensuring workplace safety. To the contrary, international evidence suggests otherwise,” the submission says.

Considering what could be done to improve the workplace health and safety regulatory framework, the Law Society says it might be opportune for ACC to re-introduce rehabilitation officers. This would be consistent with the governing legislation which says ACC’s primary focus should be on rehabilitation with the goal of achieving an appropriate quality of life with entitlements that restore a claimant’s health, independence and participation to the maximum practicable extent.

The ACC, “as a matter of practice”, should place less emphasis on getting injured people off the system and more on ensuring that they are properly rehabilitated as envisaged in the legislation and the original Woodhouse Report.

The Law Society says it is also important that ACC uses medical assessors who are perceived to be unbiased. The focus must not be on removing injured persons from the scheme or reducing entitlements for the purpose of containing ACC’s costs.

Recent submissions 

The Law Society recently filed submissions on:

  • Marriage (Definition of Marriage) Amendment Bill;
  • Safer Workplaces: Independent Taskforce on Workplace Health and Safety consultation;
  • Proposal to centralise filing of applications for grants of probate;
  • Resource Management (Restricted Duration of Certain Discharge and Coastal Permits) Amendment Bill;
  • Taxation of Specified Mineral Mining: Officials’ Issues Paper;
  • Land Transport (Admissibility of Evidential Breath Tests) Amendment Bill; and
  • Local Electoral Amendment Bill (No. 2).

The Law Society recently addressed the following select committees:

  • Local Government and Environment Committee on 15 November 2012, on the Environment Canterbury (Temporary Commissioners and Improved Water Management) Amendment Bill; and
  • Government and Administration Committee on 10 December 2012, on the Marriage (Definition of Marriage) Amendment Bill.

The submissions are available at www.lawsociety.org.nz/publications_and_submissions/submissions.

Coming up

The Law Society is currently preparing submissions on numerous bills and government discussion documents. Members are welcome to contribute comments to the Law Reform Committee, specialist committees and sections preparing the submissions.

For a full list of upcoming submission deadlines and information about how to participate, visit my.lawsociety.org.nz/law_reform/work_in_progress.

For more information on NZLS law reform activities, contact vicky.stanbridge@lawsociety.org.nz.

Last updated on the 17th March 2016