31 July 2007

Structure of Local Government

> NZHerald: "Commission to look into who runs Auckland" I'm pleased to see the government has arranged for an independent review of the local governance issues in Auckland. Quite frankly, the area is under significant growth pressure and its local governance agencies have had dysfunctional relationships for some time. As for the Royal Commission concept, the cynics might say that it's a ploy to neuter the current One Auckland debate. I suspect the government is nervous about this concept - because it would compete with the Beehive in terms of political power. Labour could never have unilaterally said no to the idea though - they would have been labelled anti-Auckland. The Royal Commission avoids this and defers the substantive issue beyond the local body and national elections. Personally though, I think the Royal Commission move demonstrates the government's commitment to local government. They do truly believe in the importance of local government - which should be commended. It allows for grass-roots democracy - participation at a local level and the experimentation with local solutions. The previous local government reforms enhanced this and emphasised local government's general well-being powers. Sub-national government in this form is really New Zealand's form of federalism. On the substantive question, I don't know if I have a particular view about the Auckland issues. But for some time I've wondered whether the structure of local government has suffered from historical anomalies and is too fragmented for their present functions. My tentative suggestion is that we consider merging some local authorities. The present structure of local government is as follows:

My tentative structure is as follows: Key points:

- The merger of local authorities allows the regional council functions to be merged, similar to the couple of unitary authorities we have now. The split of functions doesn't really make sense, complicates the governance questions and leads to intra-local authority in-fighting.

- Few local authorities, defined more around contemporary communities of interest. Eg, Greater Wellington, Taranaki, etc. Someone once suggested to me the present DHB boundaries would make some sense.

- Bigger local authorities. This would allow the administration to harmonise and consolidate their work. No need to re-invent the wheel on the regulation of prostitution across the Auckland region. Or for different frameworks for regulation of the RMA.

- But bigger local authorities need smaller access points for public participation. Community boards are presently optional but I think any move to merge local authorities requires compulsory and universal community boards. That is, each local authority district must have community boards covering the entire district. Here, we can insist on smaller communities of interest. Eg, in a Greater Auckland model (say) Papakura District would be represented by the Papakura Community Boards. The former Wellington City within Greater Wellington might be split into two or three, ie Southern, Central, and Northern Wellington.

And most significantly, these Boards would need to have automatic responsibilities (presently their role depends on the authority and funding given to them by their parent local authority). I suggest they have standing delegations to hear "local" resource consents and a budget for "local" projects; other matters would continue to be dealt with at the local authority level. This allows the local community to make decisions about local matters such as town centre development, local parks, local developments, but ensures that matters with broader implications or needing greater strategic expertise (regional planning or infrastructure) is done at a higher level.

Now none of this is specific to Auckland - but it might be that the examination of these issues in Auckland could trigger some reflection on these issues across the country.

25 July 2007

Electoral Finance Bill

> Electoral Finance Bill (pdf) Quick thoughts: 1. The failure to address anonymous donations by still allowing donations from trusts is just daft! It's encouraging though to hear that Winston reckons it won't survive the Select Committee. 2. The third party provisions are unduly restrictive. I've never really been concerned about third party involvement per se. I think the issue is more about their transparency rather than their involvement. Unfortunately the extremely low cap is likely to make any involvement nugatory. $60,000 doesn't go far at all... In fact, if anything, I think third party involvement helps, rather than hinders, the "contest of ideas". It's useful for a third party group to analysis the positions of the parties and to say this is the position of the various parties on, say, same-sex marriage, sustainability, early childhood education. The difficulties arise when they aren't up-front about who they are or when they misrepresent things. The answer in my view is to insist on transparency (which I understand the bill does) and prohibit any third party advertising in the last 72 hours before the election (allowing time for any problematic or inaccurate propaganda to be dealt with by the "ideas" process). That would have addressed the concerns about the Exclusive Brethren from last election that seem to be the catalyst for these changes. With these controls in place, I think a more realistic cap could be set: say $200,000 or so?

24 July 2007

The Public Service and political neutrality

A few more thoughts on this affair: 1. I think claims of the loss of public service neutrality and a slippery slope are overstated. First, the situation arose because of an unusual combination of circumstances: (a) the public service employee being senior; and (b) the employee being in a relationship with someone employed as a political adviser for the opposition. Secondly, present laws and expectations already recognise those two positions require particular sensitivity and care: - one contemplates the existence of strong political views (s31 of the Human Rights Act says that a person's political opinion can be taken into account in relation to employment as a political adviser for politicians or political parties); - the other one insists on absolute political neutrality (both the old NZ Public Sector Code of Conduct and the new Code of conduct for the State Services recognise that political neutrality becomes more critical for senior public employees or those working closely with ministers). The combination of both in the present situation exascerbates the concerns. (As an aside, although the s31 exception does not directly apply to public sector employment, I've noted before the s32 exception governing collusion does. Also, the Human Rights Act implicitly accepts that the issues may arise through relationships (s21(2) extends the prohibition against discrimination to a person's relative; the arguable corollary is that the exceptions might also extend accordingly).) 2. Picking up on a point I made in comments on another post, I think the SSC and the Minister are incorrect about one element of the conflict of interest issue. Repeated reference has been made to an "apparent" or "perceived" conflict of interest, rather than a real risk of collusion or conflict of interest. The distinction is subtle but important. The collusion exception requires a real risk of collusion - the appearance of collusion is not enough. In this case, there is no suggestion of some potential benefit to the employee; rather the suggestion is some detriment to their employer. The importance of the appearance of propriety only arises in relation to former, not the latter. 3. The real issue here, in my view, is the risk that the MfE employee created an unmanageable risk of disclosure of sensitive information into the hands of opposition political parties - thereby creating a situation of possible detriment for the Ministry. Quite simply, it's difficult to maintain a "Chinese wall" at home in one's relationship. Even if one is able to not discuss sensitive "shop" matters at home, other signals are implicitly sent. Eg, The innocuous message: "Honey, I won't be home for dinner tonight. I'm really busy with something pressing at work." might convey indications of particular weakness on something which, in combination with knowledge from an opposition political adviser, is enough to alert a political party to attack the Ministry on a particular issue.

19 July 2007

The public service, relationships, and political neutrality

> TV3: "Claims MP fired woman because of partner’s political job" > DomPost: "Partner of National aide loses ministry job" This one has been floating around for a while, and once against got some press from TV3 last night. A lot of the coverage has focused on alleged Ministerial involvement. In many respects, that's the least interesting element. If there has been Ministerial interference, that would be unlawful under s 33 of the State Sector Act 1988:
Duty to act independently Notwithstanding anything in section 32 of this Act, but subject to sections 51 and 52 of this Act, in matters relating to decisions on individual employees (whether matters relating to the appointment, promotion, demotion, transfer, disciplining, or the cessation of the employment of any employee, or other matters), the chief executive of a Department shall not be responsible to the appropriate Minister but shall act independently.
In my view, though, the more interesting question is whether a refusal to employ or termination of employment would be unlawful, assuming that decision was properly made by the CEO. Obviously, such action would prima facie amount to discrimination based on "family status", that is, "being married to, or being in a civil union or de facto relationship with, a particular person" (s23(1)(l)(iii), Human Rights Act 1993). That potentially makes the action unlawful under s22 of the Human Rights Act and/or s19 of the New Zealand Bill of Rights Act 1990. However, as one of my colleagues pointed out to me, section 32 of the Human Rights Act expressly allows discrimination against people in relationships if there is a risk of collusion:

Exception in relation to family status Nothing in section 22 of this Act shall prevent restrictions imposed by an employer— (a) On the employment of any person who is married to, or in a civil union or in a de facto relationship with, or who is a relative of, another employee if— (i) There would be a reporting relationship between them; or (ii) There is a risk of collusion between them to the detriment of the employer; or (b) On the employment of any person who is married to, or in a civil union or in a de facto relationship with, or who is a relative of, an employee of another employer if there is a risk of collusion between them to the detriment of that person's employer.

The concerns underlying this exception would no doubt also provide the foundation for an argument that any discrimination is justified under the Bill of Rights (either within the definition of discrimination itself or for the purposes of section 5). This would be augmented by the requirement of political neutrality under the New Zealand Public Service Code of Conduct. Of course, it must be established - factually - that the relationship creates a risk of collusion to the detriment of the employer. But that seems readily open in this situation. On its face, therefore, the action taken by MfE appears to be defendable.

3 July 2007

Bells, traditions, and the Resource Management Act

> ThePress: "Complaint silences bell" > St Christophers > CCC: City Plan, Part 11, Rule 1.3.3 I'm a bit puzzled by this one. I'm not convinced the Church was acting unlawfully when it ran its bell in the morning. While the explanation for the City's action is somewhat scant, there seems to be repeated reference to the bell breaching the 75 dB limit for daytime noise. This reference seems to a reference to the daytime noise standard in Part 11, Rule 1.3.3 of the City Plan. It sets a development standard for the Living Zone 1 of 75 dB Lmax and a critical standard of 85 dB Lmax. In short, this means that noise up to 75 dB is a permitted activty and can be does as of right, without a resource consent. Noise over that level requires a resource consent. The reference to 85dB sets another threshold changing the type of resource consent one needs to apply for, effectively making it more difficult to get a resource consent if the noise exceeds 85 dB. Now, on its face, the Church is breaching the limit and needs to apply for resource consent (which they may well get). However - and this is my main point - if the bell has been rung for 50 years as they say, then the church does not need to comply with this rule. Section 10 of the Resource Management Act 1991 provides:
s10 Certain existing uses in relation to land protected (1) Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if— (a) Either— (i) The use was lawfully established before the rule became operative or the proposed plan was notified; and (ii) The effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified: ...
This recognises that the activities which have been established before the rules were adopted (which looks to be the case here) are lawful and need not comply with the more recent standards. The activity is treated as having "existing use rights" and can be undertaken lawfully as of right, without needing to obtain a resource. That's not to say the noise issues cannot be addressed elsewhere. Other standards relating to noise are provided in the RMA: - There is a general duty to avoid unreasonable noise (s 16: "Every occupier of land ... shall adopt the best practicable option to ensure that the emission of noise from that land or water does not exceed a reasonable level.") - There is a general duty to avoid remedy and mitigate adverse effects, regardless of whether the activity complies with the rules or a resource consent, but this duty is only enforceable if the effects are "noxious, dangerous, offensive, or objectionable" (s17: "Every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of that person, whether or not the activity is in accordance with a rule in a plan, a resource consent, a designation, section 10, section 10A, or section 20A"). - There is a special regime for "excessive noise" ("any noise that is under human control and of such a nature as to unreasonably interfere with the peace, comfort, and convenience of any person"), where people can be issued an excessive noise direction (this is the "noise control" regime which you may have encountered at noisy parties!). Notably, these other provisions are more nuanced, requiring a contextual assessment of the nature and quality of the noise in the light of the particular neighbourhood. I suspect the bell noise is unlikely to be illegal under these provisions. But, in any event, the City does not appear to be addressing the bell under these provisions. UPDATE (6/7/2007): As a result of my blog post, the City has conceded the bells have existing use rights and will be allowed to ring on Sunday mornings: > ThePress: "Christchurch vicar wins ding-dong over church bell"

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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