29 March 2023

About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.
   

2. We see no reason to lend any credibility to this sham of a Select Committee process by making an oral submission that would clearly be a waste of our and Members’ time.

Urgency

3. The process for passing this legislation under urgency is an affront to democracy.
   

4. Submissions for this bill closed less than 2 days after the bill was introduced.  The government took 40 days to draft this bill in response to the severe weather events, but its misuse of the Parliamentary process lacks the decency to allow respondents time to analyse this bill to suggest improvements.

5. The Council notes that even the bill itself will allow a minimum of 3 working days for responses to individual orders (see clause 9(1)(c)).

6. The Council notes with immense disapproval that the problems this bill intends to address are fundamentally the same problems encountered with the Christchurch earthquakes. This bill ignores over a decade of expert advice and instead throws together another hastily constructed, single use, “solution” to what cannot possibly be the last natural disaster.

7. The Council notes that the Independent Electoral Review is considering whether Aotearoa New Zealand should move to a longer Parliamentary term. The Council believes there will be no social licence or popular support for any such move until the House of Representatives reforms its processes to limit abuses of processes such as urgency, and other matters raised in our submission to the Standing Orders Committee.

Repeal and Revocation

8. Clause 17 establishes an end date of 31 March 2028 for any orders made under the legislation. Clause 34 establishes a series of end dates for different parts of this terrible bill.
   

9. Paragraph 89 of our 2022 submission to the Standing Orders Committee reads:

To create a significant disincentive to the use of urgency, the Council believes that whenever a bill is passed under urgency, without a select committee period of 40 days to make submissions, that bill should have a 100 day sunset clause. Immediately upon third reading a 40 day submission period should open on the bill. This would be followed by the regular select committee process, committee of the whole, and another third reading between 70 and 99 days after the initial third reading.

10. If the Committee chooses to allow this bill to progress, the Council recommends that clauses 17 and 34 be amended so that both the Act and any orders made under it have a sunset clause of 100 days after Royal Assent. Submissions should then be called for on the final form of the bill passed into law, with a minimum of 40 days to provide them to the select committee. The committee can then support the House and Government by providing better scrutiny, and considering where amendments should be made.

Recommendation 1
Amend clause 17 to read “Every order is revoked at the close of the 100th day after the date of Royal assent (unless sooner revoked).” and make the consequential change to the clause heading.

Recommendation 2
Amend clause 34 to delete sub-clauses (1)-(4) and amend sub-clause (5) to read “This Act is repealed at the close of the 100th day after the date of Royal assent.”

The Bill

11. This bill itself is an affront to our democracy. The autocratic measures at the heart of this bill are precisely the sort of executive overreach the Council was founded to prevent. 

Safeguards

12. Clause 8(1)(a)(iv) limits the use of this bill to circumstances where the relevant Minister making the order is satisfied that “the order does not limit or is a justified limit on the rights and freedoms in the New Zealand Bill of Rights Act 1990”. The bill does not specify who performs the assessment of the order with the New Zealand Bill of Rights Act 1990.

Recommendation 3
Amend clause 8(1)(a)(iv) to specify that the Attorney General must provide the relevant Minister with their assessment of the impact of the proposed order on the New Zealand Bill of Rights Act 1990, prior to the order being published for consultation under clause 9.

Recommendation 4
Amend clause 9(2) to add a paragraph (d) requiring the document provided to the public to include a copy of the Attorney-General’s assessment of the impact of the proposed order on the rights and freedoms in the New Zealand Bill of Rights Act 1990. 

Restrictions on Orders

13. Clause 11(1)(c) establishes a short list of constitutionally important Acts which can not be altered by orders under this bill. The Council believes this list to be incomplete.

Recommendation 5
Amend clause 11(1)(c) by adding the following Acts to limit the extent to which our civil liberties are being sacrificed:
– Human Rights Act 1993
– Privacy Act 2020
– Official Information Act 1982
– Protected Disclosures (Protection of Whistleblowers) Act 2022
– Local Government Official Information and Meetings Act 1987
– Ombudsmen Act 1975