McCully not the Supreme Commander

Dean Knight at Laws179 blogs on the legal situation around the waterfront:

Much has been made of Murray McCully’s so-called “nationalisation” of the waterfront for RWC party central, through the exercise of reserve powers under the special legislation for the Rugby World Cup. 

The legal position is, however, very different.  While some regulatory approvals for standard event-based activities may be fast-tracked through a special process under the RWC 2011 (Empowering) Act, the RWC Act does not give the Minister the ability to “take control” of the waterfront.  The Minister’s statutory role is reactive only, namely, considering applications made to and assessed by the independent RWC Authority. Any ability for the government to “take the lead” on the party central activities must have been garnered collaboratively, and does not come from the exercise of power under the RWC Act.

In any event, the applications presently being made urgently are conjoint applications from the Ministry of Economic Development and the Auckland Council’s events team.  These applications were, I understand, in the process of being prepared collaboratively before the Minister’s announcement. And the fast-tracked approvals currently being sort are largely mundane. …

The legislation also provided for an even more expedited process “in circumstances of urgency that, for good reason, were not foreseen”.  A higher threshold was required (necessary to “secure public safety”, to “avoid seriously compromising” the RWC, or to “provide support for” RWC organisers). 

A different, and more expedited, process was provided for. Rather than being determined by the RWC Authority, the RWC Authority only assesses the application and makes an recommendation to the Minister for the RWC.  There is no obligation to subject the application to a participatory process.

The decision about whether the approval should be granted then falls to the Minister for the RWC.  He must consult the Minister for Economic Development and other relevant Ministers.  He must take account of (but is not bound by) the recommendation of the RWC Authority.  His decision is final.

That’s all.  They are the only “special” powers under the RWC Act.  The Act does not provide any power to assume control over or nationalise events.  The Minister’s role is reactive, as ultimate decision-maker, once an urgent application is made. And then only after the independent RWC Authority has scrutinised it.