Friday, August 21, 2015

Stephen Franks: Cunning RMA move is Constitutionally dodgy


Every young Aucklander unable to afford a house should applaud the Hon Nick Smith’s cunning scheme to force planners to take that cost into account. If Dr Smith uses his plan boldly enough he may gut the paralysing Auckland PAUP and negate the Hon Peter Dunne’s veto on RMA reform.

The scheme also highlights the constitutional barbarism lurking in last year’s Supreme Court “King Salmon” decision.


The details so far are sketchy (described by Kiwiblog drawn from behind Richard Harman’s Politik paywall). But it seems to be a delightful fulfilment of prescient comments by Patrick Smellie in April on the Supreme Court decision.

The King Salmon decision was welcomed by those who fear changes to the status quo, but it contained the seeds of a constitutional time bomb.  Effectively it may say (see here and here) that Cabinet policy documents could trump words of the statute under which they had been issued.  It interprets the authority of National Policy Statements with an effect akin to validating them as products of  a “Henry VIII clause”.

Normally Parliamentary intention is supreme, and Cabinet (the Executive) instruments will always be treated as subordinate to contradictory implications of the legislation. In defence of the Supreme Court, the RMA is drafted with no respect for normal rule of law or constitutional conventions. The Court is obliged to try to make it work.  ’Environmental law’ is like family law, scarcely predictable enough in result to justify the term ‘law’. It has become a contradiction in terms. The RMA is a conglomeration of worthy slogans and powers. They authorise often incompetent mini-rulers to issue decrees which reflect and express their uncosted aesthetic, spiritual, class and political or tribal prejudices.
Now the Court approach may have given the National government a get out of jail card to end the economic sabotage of Peter Dunne, and the planners. Unfortunately for the rest of us there is a risk that Cabinets will become keen on the device. They may start defacing other statutes with similar versions of “Henry VIII clauses”. They will thwart the certainty and constraint on executive power intended by  Parliamentary conventions. They effectively delegate back to the executive the power to decide what a statute will mean from time to time.

That in turn will likely lead the Courts into attempts to confine the King Salmon approach and distinguish it out of existence.

An obvious tactic will be to draw on the Supreme Court’s King Salmon focus on the care and deliberation that had gone into the relevant National Coastal Policy Statement. A Court trying to undo the damage of that decision could decide it must examine closely the quality and procedures of subsequent Cabinet policy statements designed to corral the planners. Such court interest will set up constitutional tensions we might have avoided if the Hon Amy Adams had not been blocked by Mr Dunne.

But lets appreciate the genius in the current proposal.  If Dr Smith uses his plan boldly enough he may at least end the planners’ assurance of unearned, untaxed wealth for Auckland’s property incumbents at the expense of the rest of New Zealand. And if the device is likely to become discredited over time, and negated by fresh court decisions, Dr Smith might as well be hung for a sheep as for a lamb in the meantime.

Stephen Franks is a principal of Wellington law firm Franks & Ogilvie and a former MP. He blogs at www.stephenfranks.co.nz.

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