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By Steven | April 7, 2011

A scenario: a staff-member at the new Canterbury Earthquake Recovery Authority leaks some information to the media. Maybe it’s about waste or inefficiency in the recovery effort. Maybe it’s about a raging personality conflict hampering operations. Maybe it’s about a contractor on the take.

The minister and the chief executive are furious about the leak. What can they do? They might decide to use their power to “require information from any source” to order the media to name their informant. The Cabinet paper (Proposed Government Arrangements: Paper 1) doesn’t suggest any exceptions for confidentiality, or even legal professional privilege.

The exercise of the power would have to be reasonably considered necessary for the purposes of the legislation – but these are wide indeed, and include “ensur[ing] Christchurch and its communities respond to and recover from the impact of the earthquakes”… and providing the Minister and CERA with “adequate powers to assist with the recovery” and restore “social and economic well-being” after the earthquakes. One could take the view that these purposes are wide enough to encompass the need to find the identity of a staff-member who was arguably acting unlawfully and hindering the recovery effort.

The policy papers don’t identify this as a potential rights issue.

The papers do mention (under “risk mitigation”) that the provisions could be similar to section 76, 77 and 82 of the Civil Defence Emergency Management Act. (Section 82 protects legal professional privilege. Section 77 contains an appeal right against “unreasonable” uses of the power).

In light of NBR’s experience with the Serious Fraud Office’s wide powers, I suggest the media take a close look at the CERA legislation when it emerges…

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