POLICY BRIEF: THE SOCIAL HOUSING DEBATE - TWYFORD v BENNETT

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Labour's Housing spokesman Phil Twyford yesterday sent POLITIK 10 bullet points of his criticisms of the new Social Housing legislation. Because the points were technical we referred them to the Minister's office for clarification.

The Minister, through a spokesman, has done that and so we present the debate --- Twyford v Bennett.

PHIL TWYFORD 

PAULA BENNETT 

"The Bill gives the Minister the ability to gazette Housing New Zealand land so that if it is sold Housing New Zealand doesn’t get any money and it all goes to the Crown directly."

Incorrect. There is a small portion of social housing land that is not owned by Housing New Zealand, but is owned by the Crown. This clause makes it clear that where the Crown manages and sells this land without any involvement from Housing New Zealand, the money will be paid to the Crown directly.

This Bill gives Bill English complete carte blanche to sell state houses

The power in proposed s 50E is provided to both Hons Bennett and English, acting jointly. It’s not a “carte-blanche” power, in that the power can only be exercised for any one or more of the social housing reform objectives.    The objective  can be found here: 

This contract can be on “any terms and conditions (including as to consideration)” the Minister wishes 

Correct. Of course, the contracts will be negotiated with the buyers. 

He can also direct Housing New Zealand to take any action to facilitate the sales process 

Broadly correct, except that there’s no “direction” – rather, the Minister just does it as if they were Housing New Zealand. 

The Bill will exempt him from all relevant enactments including the objectives and functions of HNZ (social responsibility, environmental responsibility, and good financial oversight 

Correct, although it’s not just English – it’s English and Bennett and the rule of law as to the validity of these powers – There’s no exemption from the rule of law (in the Dicey/constitutional sense). Rather, the Minister isn’t constrained by “any rule of law relating to capacity or validity of acts”. 

It exempts the transactions from parts of the Public Works Act transfer provisions (including right of first refusal) 

Correct, although these PWA provisions would not have applied in any case.  The point is there are no Public Works Act obligations in respect of the Housing New Zealand properties to be sold.  

The Bill provides that he can delegate these powers to the chief executive of the Ministry as well meaning that officials can exercise these powers and this section is again exempted from the rule of law 

The bill allows for the statutory powers to be delegated to officials.  This is the default position for all statutory powers.  However, there is no exemption from the rule of law.* 

 Exempted from legal challenge except judicial review 

Housing NZ will bear liability in respect of the contracts it is bound to  and not the Minister. So, if Housing NZ has an obligation under a  transfer contract with a buyer of social houses (i.e. to hand over the keys by a particular date), and fails to meet that obligation, Housing NZ will be liable – the Minister will not be liable. Section 50R(6) is clear that judicial review is still available – as in, if a member of the public felt that the Minister has exercised the power unlawfully (because it’s not for a SHRP objective, for instance), they can ask the courts to review that decision.  

All officials are made immune from legal liability for the actions of the Minister 

Incorrect. Board members and employees of Housing New Zealand and its subsidiaries are not liable for decisions made by the Minister. Otherwise, the usual Crown Entities Act liability/immunity arrangements apply.  

Exempts HNZ from the right of first refusal proposals under the Public Works Act   The Public Works Act offer-back requirements do not, and have never applied in respect of the properties to be sold.  Rights of first refusal under Treaty settlement legislation will not be affected by this provision.   
The “rule of law” is the fundamental constitutional provision that means all persons, including the Crown and lawmakers themselves, are subject to law. In a parliamentary democracy like ours, Parliament makes law.  So the view that Parliament’s legislation can exempt someone from the “rule of law” is oxymoronic. Of course, Parliament can legislation exemptions from particular rules of law, but not from the rule of law.

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