25 October 2007

Local authority decision-making, community views, and Stadium Aotearoa

An article of mine has just been published in the New Zealand Law Journal:

Dean Knight, "Local authority decision-making, community views, and Stadium Aotearoa" [2007] NZLJ 354

Public participation in local authority decision-making has undergone somewhat of a renaissance, with the 2002 reform of local government legislation placing greater emphasis on "grass-roots" decision-making. There now seems to be greater understanding of the importance of community views to the decisions made by local authorities. And the range of participation processes employed by local authorities has grown: from traditional submission processes, to mechanisms such as public referenda, focus groups, and the like.

This change of culture brings with it greater frustration from the community when it feels shut out of decisions. A failure to consult may also present a new and more direct mechanism to attack a decision of the local authority. An example is last year's (ultimately aborted) proposal to construct a national sports stadium on Auckland's waterfront. The decisions – and the process by which the decisions were made – led to vociferous debate and polarised the city. The decisions also led to the one of the first direct challenges to a decision of a local authority under the decision-making processes and principles under the Local Government Act 2002 (LG Act 2002).

In this article, I describe and discuss the salient decision-making and consultation obligations that apply to decisions of local authorities and use the recent stadium selection decision to illustrate how they work. The purpose of the discussion is two-fold: first, to identify and navigate the complex decision-making framework for local authorities imposed in the recent reforms, and, secondly, to make some observations about the special circumstances which arose in the stadium selection decisions.


Much of the article is based on previous analysis on this blog:

Stadium Aotearoa: the injunction > Stadium Aotearoa: the long-term council community ... > Stadium Aotearoa - letter to Minister and the Mayo... > Stadium Aotearoa

As usual, feedback and comment welcomed.

24 October 2007

"Please step out of your vehicle so I can snap a photo..."

> CampbellLive: "Police defend Ruatoki roadblocks" The question of whether the Police had any power to photograph people stopped at road blocks in the big "terrorism" raid is interesting. My intuitive response was like many commentators: first, there is no express power to do so and therefore the action is unlawful; secondly, although consent would authorise the action, factually it's unlikely that real consent was present (the actions are generally tacitly coercive). However, I now wonder if it's more complicated than that. The relevant section is section 314C of the Crimes Act 1961:
s314C Powers incidental to stopping vehicles under section 314B (1) This section applies whenever a vehicle is stopped under section (2) Any member of the Police may do either or both of the following: (a) Require any person in or on the vehicle to state his or her name, address, and date of birth, or such of those particulars as the member of the Police may specify: (b) Require that the vehicle remain stopped for as long as is reasonably necessary to enable a statutory search power to be exercised. (3) This section does not limit or affect the exercise of any other power, whether express or implied, that is incidental to the applicable statutory search power.

(Section 314B provides a power to stop vehicles for the purpose of an authorise search.) Now, it's clear that there is no express authorisation to photograph in this context. But that might not be the end of the matter. There is High Court authority that has held that officers can rely on implied ancillary powers to authorise coercive action. In Jaffe v Bradshaw (1998) 16 CRNZ 122 the High Court ruled that the Serious Fraud Office was entitled to require interviews with interviewees to be videotaped, even though there was no express legislative power authorising the action. I must say I have some difficulties with the decision in Jaffe (a research student I am supervising is presently writing a paper on these issues) but it presently stands as a precedent for this approach. Adopting this approach though, it is arguable that the statutory scheme is capable of being read so as to implicitly authorise the taking of photographs for identification purposes. Section 314C is directed at identification of people stopped and photographing is related to this purpose. Further, section 314C(3) specifically addresses implied powers - expressly leaving them open to implication. (The counter argument might be that s314C addresses ancillary powers to s314B powers and it's contrary to the scheme of the legislation to imply further ancillary powers from the ancillary powers in s314C. That is, s314C(3) is directed at the implication of ancillary powers from the primary search power in s34B.) On the basis of the Jaffe case, an implied power to photograph appears open to argument (but I'm not saying that that necessarily means that the power will necessarily be found - the interpretative outcome is not clear). Of course, even if the power exists, it would be subject to limits - most obviously the requirement that it be exercised reasonably; but that's a different point.

12 October 2007

Christchurch City, Council offices, and (un)constitutionality

> ThePress: "Council and iwi in last-minute HQ deal" > ThePress: "New civic HQ good news for ratepayers" > ThePress: "Voters opposed to civic 'palace'" > CCC: "Christchurch City Council Agenda, Thursday 11 October 2007" At its final meeting of the year the Christchurch City Council voted to enter a $52M contract for new Council premises. The item was added to the Council agenda as a supplementary item at the 11th hour, without notice, and was discussed as a public-excluded item. In my view, this type of decision-making is egregious, arguably "unconstitutional", and may provide grounds for invalidating the election. Given the rapidness of this issue arising, I have not been able to undertake a complete review of the background to this decision. However, my understanding is as follows: - The issue of new premises for the Council has been a long-standing issue for Christchurch. - The Council has been searching for suitable premises for some time and has made some provision for funding this in its long-term council community plan (although, from a quick glance at the long term council community plan, the organisational arrangements for the funding of the premises seems rather complicated and involve other Council controlled organisations). Most recently, in June it widened the scope of its search, asking for the CEO to "report back" in September. - At yesterday's meeting, the Council resolved to enter into an agreement with Ngai Tahu in relation to the new premises, with a cost to the Council of around $52M. - The question of the new premises and the associated decision-making process have been major issues on the hustings. The upshot is that the Council has determined a matter of significant expenditure and public interest – without notice in a public-excluded meeting – less than 48 hours before the close of polling, some 19 days into the voting period. My initial thoughts are as follows: 1. The decision must be a breach of the principle in s14(1)(a) of the LG Act 2002 "(1)In performing its role, a local authority must act in accordance with the following principles ... a local authority should ... conduct its business in an open, transparent, and democratically accountable manner". Taking the decision at the end of the voting period removes any prospect of democratic accountability for the decision. Ratepayers have no ability to express their disapproval at the ballot box in the ordinary way. My concern is not principally directed at the lack of advance notice or public-excluded meetings (such measures are routine and often justifiable). That said, in this case, these measures exacerbate the lack of democratic accountability, particularly the lack of advance notice. Further, the grounds for invoking these measures are doing so appear dubious and weak. In particular, no explanation is provided for the late addition of the supplementary report apart from an assertion that it is "urgent" and cannot wait until the next meeting. The purported reason given by the Mayor on the radio – that is, it would take more time for new members to get up to speed on the issue –appears irrelevant and disingenuous. 2. Whether a breach of this principle gives rise to ground for legally challenging the decision is complicated and unclear. While compliance with the principle is mandatory, the principle is "high level" and the courts may have some reluctance in invalidating the decision because of such a breach. 3. There may also be more direct administrative law grounds under the general decision-making provisions to challenge the decision but I haven't yet had an opportunity to run the ruler over them. Initiatively, the nature of the decision-making would at least raise suspicions about non-compliance with those requirements. 4. In any event, the last minute decision may provide a ground for challenging the outcome of the election itself: a. Section 99 of the Local Electoral Act allows the District Court to void any election if there has been "any irregularity in any proceedings preliminary to the voting" and that irregularity has materially affected the result. The District Court in Aukuso v Hutt City Council [2004] DCR 322 gave a broad interpretation to the term "irregularity". It potentially includes improper conduct by the local authority which could influence the election or a breach of the principles in s 4 of the Local Electoral Act. b. In my view, the conduct of the Council is improper and arguably unconstitutional, largely for the reasons noted above. Although the existence of constitutional conventions in relation to local government is unclear, there is a strong case for arguing that there is (or, alternatively, should be) a convention that significant decisions should not be made by the local authority during the voting period. Otherwise, it undermines ratepayers voting rights. This is exacerbated by the fact that, I understand, people who have sought to change their vote today have not been allowed to do so. As central government has a specified polling day, and Parliament is formally prorogued, there is no direct comparator to the situation. However, there's some analogy to the caretaker government convention that says an outgoing government should not undertake any new policy initiatives. c. Further, a more direct challenge may be available, based on a breach of the principles in s 4 of the Local Electoral Act. Amongst other things, section 4(1)(b) sets out the principle that "all qualified persons have a reasonable and equal opportunity to… cast an informed vote". In my view, taking a significant decision such as this 90% of the way through a voting period undermines the ability of ratepayers to make an informed assessment about candidates. I think any reasonable person, stepping back from this issue and viewing it in the round, would be extremely concerned about the effect of such last-minute decision-making on the democratic process. That initiative assessment is often the best guide on its constitutional propriety. I doubt we've seen the last of this issue.

4 October 2007

"Gagging" of member by the Real Estate Institute

> NZHerald: "Real estate body's move 'bizarre'" The action of the Real Estate Institute of New Zealand to discipline The Joneses under its Code of Ethics for publicly criticising other agents publicly is not only bizarre, but - assuming the complaint is upheld - it's potentially unlawful. The complaint appears to be brought under rules 13.1 and 13.5 of REINZ's Code of Ethics:
13.1 Members shall always act in accordance with good agency practices, and conduct themselves in a manner that reflects well on the Institute, its members, and the real estate profession. … 3.5 Members shall never publicly criticise fellow members.
Now, if REINZ was simply a private organisation, it would be entirely capable of maintaining such a rule and disciplining members for breaching it – it would be a contractual term agreed to by private parties. However… REINZ is not entirely a private organisation. REINZ is a body recognised in Part 5 the Real Estate Agents Act 1976. All licensed real estate agents are required under the Act to belong to the institute. There is specific provision for the Institute to prescribe a Code of Ethics (s 70(1)(m)) and for the discipline of members for breaching the Code (s (70(1)(ma)-(o)). Interestingly, the Code of Ethics does not come into force until approved by the Minister of Justice (s 70(4)); I presume this means the government has previously approved the rule in the Code of Ethics being relied on in this case (which probably makes Clayton Cosgrove's complaints about "Keystone Kops stuff" a bit rich). In this capacity, it seems clear that REINZ is caught by section 3(b) of the NZ Bill of Rights, that is, its actions are "actions done by… any body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law". And, of course, orthodox administrative law principles as well, under the Datafin principle. For present purposes, the important consequence is that the rule in the Code of Ethics and actions in disciplining the member must, as a matter of law, be consistent with the Bill of Rights. Prima facie, the REINZ rules and actions would breach the freedom of expression in section 14:
"Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form."
Of course, the limitation of expressive rights may be justified under section 5:
"[T]he rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
That requires an assessment of whether, in general terms, the limitation of the right is "proportionate", namely whether the limitation is necessary, suitable, and appropriate. As the Court of Appeal in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 said:
"In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s 5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved."
While it is arguable there might be a legitimate governmental or public interest in preventing real estate agents from criticising each other, it is an extremely weak governmental imperative. Even if it could be argued that the rule might be seeking to advance a legitimate governmental objective, it seems clear that an absolute ban on any criticism goes well beyond what is necessary to achieve this objective and/or any productive benefits are far outweighed by its negative effects. The negative effect on the individual is obvious; further, there seems to be a broader public interest in allowing discussion about the propriety of practices within the real estate profession. Accordingly, in my view, the rule in the Code of Ethics is ultra vires or invalid. Even if the rule is valid, then the action of disciplining a member in these circumstances is likely to be invalid. First, there's a simple argument that the comments fall outside the rule, ie the comments were not publicly criticising fellow members; the comments were made about the industry as a whole. Secondly, for similar reasons as discussed above, disciplining members in these circumstances would seem to breach the Bill of Rights.

"Going missing" and wasting police resources

> DomPost: "'Missing' man may face police charges" I was interested to see this charge being used by the Police against Dormer(although I am still reflecting on its propriety in these circumstances). The offence is found in section 24 of the Summary Offences Act:

s 24 False allegation or report to Police Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who,— (a) Contrary to the fact and without a belief in the truth of the statement, makes or causes to be made to any constable any written or verbal statement alleging that an offence has been committed; o (b) With the intention of causing wasteful deployment, or of diverting deployment, of Police personnel or resources, or being reckless as to that result,— (i) Makes a statement to any person that gives rise to serious apprehension for his own safety or the safety of any person or property, knowing that the statement is false; or (ii) Behaves in a manner that is likely to give rise to such apprehension, knowing that such apprehension would be groundless.

The interesting thing about the offence is that it is one of "ulterior intent", that is, the behaviour in question ("going missing") is only unlawful if it is done with a particular state of mind (intending or being reckless as to causing wasteful deployment of Police resource). Proving this in these circumstances would require proof of one of the following: - Dormer's goal, purpose or desire was to cause the wasteful deployment of Police resources (unlikely); - Dormer can otherwise be treated as having intended to cause the wasteful deployment of Police resources, which as a minimum would require that he was aware or foresaw that it was "virtually certain" that going missing in those circumstances would cause the wasteful deployment of Police resources (possible; arguably this was virtually certain and would probably been foreseen by Dormer); - Dormer foresaw that that there was a risk that going missing in those circumstances would cause the wasteful deployment of Police resources and that risk was an unreasonable one to take, ie he was (subjectively) reckless (most probable). The important thing here is that he can only be convicted if he was, as a minimum, aware that there was a risk that Police resources would be wasted. If he didn't turn his mind to that or was honestly ignorant that the Police were seeking him (or the risk that they would be seeking him), he can't be convicted.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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