Constitutional red tape: Assessing New Zealand's legislative response to the Kaikōura earthquake

Abstract

This paper examines Parliament’s recent legislative response to the 2016 Hurunui/Kaikōura earthquake. More specifically, it focuses on the delegated legislation making power granted to the executive in the Hurunui/Kaikōura Earthquakes Recovery Act 2016. It assesses the 2016 legislation against the background of the Canterbury earthquake legislation and the criticism that such legislation engendered. This paper addresses three key questions. Firstly, can the criticism directed at the Canterbury legislation be transferred to the Kaikōura legislation. In other words, is the Kaikōura legislation still constitutionally repugnant, and if so, to what degree. Secondly, is such constitutional repugnance able to be justified by the unique and disastrous circumstances. Finally, it asks what more can be done to bring the legislation more into line with fundamental principles, and enable it to be justified. This paper concludes the following. Firstly, the Kaikōura legislation proves to be a significant step forward, but there are aspects that are at odds with fundamental principles. Secondly, such inconsistencies cannot be justified. Finally, this paper makes suggestions for possible reform that still appreciates the Government’s concern.