Two recent Court decisions on earthquake recovery matters also
deal with important public law issues on the third source of
government power and the use of declaratory judgements.
Third source of power not a constitutional blank cheque
The Supreme Court has limited the scope of the Government's
third source of power - at least in making decisions on the
recovery from the Canterbury earthquakes - in its recent Quake
Outcasts decision. The decision also provides helpful guidance
on distinguishing between implied legal powers of the Government
and unlawful coercive action.
Generally, public bodies performing functions must be justified
in so doing by positive law. However, it is not always necessary
for that power to be conferred explicitly and the Courts recognise
that the Government has the same liberties as an ordinary person
(for example, in the signing of contracts). This is often called,
"the third source of power".
