Digest No. 1805
Orders in Council
The Governor-General may make Orders in Council reasonably necessary or expedient for the purpose of this Bill. An Order in Council made under this provision may grant an exemption from, or modify, or extend any provision of all enactments (other than Acts specifically excepted – see below) for the purpose of this Bill.
For example, the Acts in respect of which exemptions, modifications or modifications may be made include: the Building Act 2004, the Cadastral Survey Act 2002; the Commerce Act 1986; the Earthquake Commission Act 1993; the Health Act 1956; the Health and Disability Services (Safety) Act 2001; the Historic Places Act 1993; the Land Transport Act 1998; the Land Transport Management Act 2003; the Local Government Act 1974; the Local Government Act 2002; the Local Government Official Information and Meetings Act 1987; the Local Government (Rating) Act 2002; the Public Works Act 1981; the Rating Valuations Act 1998; the Reserves Act 1977; the Resource Management Act 1991; the Road User Charges Act 1977; the Social Security Act 1964; the Soil Conservation and Rivers Control Act 1941; the Transport Act 1962; the Waste Minimisation Act 2008 (Part 2, Clause 6,(1)-(4)).
This section also allows this Bill to be amended by such an Order in Council (except for Clauses 7, 17 or 21 – discussed below).
Orders in Council must be necessary or expedient for purpose of Bill
The purpose of the Bill is to:
facilitate the response to the Canterbury earthquake;
provide adequate statutory power to assist with the response to the Canterbury earthquake;
enable the relaxation or suspension of provisions in enactments that
may divert resources away from the effort to-
efficiently respond to the damage caused by the Canterbury earthquake,
minimise further damage, or
may not be reasonably capable of being complied with, or complied with fully, owing to the circumstances resulting from the Canterbury earthquake;
facilitate the gathering of information about any structure or any infrastructure affected by the Canterbury earthquake that is relevant to understanding how to minimise the damage caused by future earthquakes;
provide protection from liability for certain acts or omissions (Part 1, Clause 3 (“the purpose clause); Part 2, Clause 6(1)).
What constitutes such exemption, modification or extension
The Bill provides that an exemption from, or modification of, or extension of a provision “may be absolute or subject to conditions” and “may be made … by stating alternative means of complying with the provision … or … by substituting a discretionary power for the provision”.
However such an Order in Council may not make or authorise an exemption from or a modification of a requirement to release a person from custody or detention or have any person’s detention reviewed by a court, Judge, or Registrar or an exemption from or a modification of a restriction on keeping a person in custody or detention (Part 2, Clause 7(5) and (6)(a) and (b)).
Some Acts may not be touched
Such Orders in Council may not be made in relation to a requirement or restriction imposed by the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, or the New Zealand Bill of Rights Act 1990. No amendment may be made to Clauses 7, 17, or 21 of this Bill (Part 2, Clause 7(6)(c) and (d)).
Regulations and local body legislation covered
The Order in Council procedure may also be used in relation to statutory regulations, or any bylaw or rule made by a territorial authority or regional council (Part 1, Clause 4, definition of “enactment”).
Effect Orders in Council
The Bill provides that while it remains in force, every such Order in Council has the force of law as if it were enacted as a provision of this Bill and may come to into effect on any date (but not before ) 4 September 2010, the date of the earthquake. Such an Order in Council may expire on the date set in the Order in Council but no later than 01 April 2012, which is the date this Bill expires.
No such Order in Council may be held invalid because it is, or authorises any act or omission that is, repugnant to or inconsistent with any other Act or it confers any discretion on, or allows any matter to be determined or approved by, any person. However, this is subject to the provision that Orders in Council may not be made in relation to a requirement or restriction imposed by the Bill of Rights 1688, the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, or the New Zealand Bill of Rights Act 1990 (Part 2, Clause 7).
Parliament may disallow Orders in Council under this Bill
The Regulations (Disallowance) Act 1989 applies to Orders in Council under this Bill and so must be laid before the House of Representatives and may be disallowed (Part 2, Clause 8).
The Canterbury Earthquake Recovery Commission (the Commission) is established, and consists of seven commissioners: the Mayor of the Christchurch City Council; the Mayor of the Selwyn District Council; and the Mayor of the Waimakariri District Council and four members appointed by the responsible Ministers (the Minister of the Environment, the Minister of Finance and the Minister for Canterbury Earthquake Recovery). The function of the Commission is to advise Ministers with respect to any orders in Council that may be required, and how resources might be prioritised and funding allocated, for the response to the Canterbury earthquake (Part 2, Clauses 9-16 and 18; Part 1, Clause 4, definition of “responsible Ministers”).
Protection from liability
Persons acting or omitting to act under this Bill while it is current are protected from legal liability provided that the actions done or omitted were done or omitted in good faith (Part 2, Clauses 18 and 19).
Bill does not create a right to compensation
The Bill provides that nothing in the Bill confers any right to compensation or is to be relied on in any proceedings as a basis for any claim to compensation (Part 2, Clause 20).
Bill expires on 01 April 2012
The Bill expires at the close of 01 April 2012 and any Order in Council made under it expires on the same date if it has not already expired (Part 2, Clauses 17 and 21).
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