No mayor to declare? - Emergency powers delegated in Tauranga says law professor

Sunday, 29 January 2023

Auckland Mayor Wayne Brown and Prime Minister Chris Hipkins speak to media regarding unprecedented flooding in Auckland.

Announcing a State of Emergency unlocks “extraordinary powers” and does not need to come from the Mayor’s office, according to Waikato University law professor Al Gillespie.

Stuff spoke to Gillespie in the wake of National leader Christopher Luxon joining in the widespread criticism aimed at Auckland Mayor Wayne Brown over his handling of the State of Emergency declaration for the city.

Luxon says he would have liked to have seen a state of emergency declared faster in Auckland, and believes a review is needed.

Brown declared a state of emergency in the Auckland region on Friday night. The announcement came hours after torrential rain, flash flooding and mass evacuations.

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The fact a Mayoral sign-off is not needed may be especially important in Tauranga, where a slip had destroyed at least one house and damaged others in Egret Avenue after heavy rain overnight Saturday.

The Bay of Plenty city has been without a Mayor since February 2021 when a commission was put in place to run the troubled Tauranga City Council.

At the time of writing States of Emergency have been declared in Auckland and the Waitomo District with no indication from Tauranga authorities that such a declaration was needed in the city.

But Gillespie said that according to Article 25 of the Civil Defence and Emergencies Act, each local authority should have other individuals within the organisation empowered to make that declaration.

He said the Article, “creates a sequence of people who can declare a State of Emergency”.

According to the Article: ”A Civil Defence Emergency Management Group must appoint–

(a) at least 1 person as a person authorised to declare a state of local emergency for its area; and

(b) at least 1 person as a person authorised to give notice of a local transition period for its area.

“If no person appointed under subsection (1) is or is likely to be able to perform or exercise his or her functions, duties, and powers under this Act, a representative of any member of the Group may exercise the power to declare a state of local emergency, or give notice of a local transition period.”

“You’ve also got the opportunity for Wellington to step in as well,” Gillespie said.

He also said the effect of the declaration was “huge”.

“Effectively the people who have the power will have extraordinary power.”

He said additional powers not available without the declaration included the ability to close roads, and access private property, “all that stuff you couldn’t normally do”.

First though, he said you need an emergency.

“The most critical thing is the emergency services are going to be overwhelmed.”