28 February 2008

Minister of Health, Hawkes Bay DHB and "serious dissatisfaction"

> DomPost: "Mayors take on minister after DHB axed" > DomPost: "In five minutes 'you're sacked'" > NatRadio: "Hawkes Bay District Health Board Sacked (Part Three)" > Hon David Cunliffe: Letter to Hawkes Bay DHB The sacking of the Hawkes Bay DHB and appointment of a commissioner is fascinating. As will be the likely judicial review application to review the Minister's decision. On its face, the power to dismiss the board of a DHB is bald and broad (s31, New Zealand Public Health and Disability Act 2000):
s31 Replacement of board by commissioner (1) Where the Minister is seriously dissatisfied with the performance of a board of a DHB, the Minister may, by written notice to the board and the commissioner, dismiss all members of the board and replace the board with a commissioner. (1A) The Minister may also replace the board with a commissioner, by written notice to the board and the commissioner, if all the members of the board of a DHB are removed from office under this Act and the Crown Entities Act 2004. (2) Where the Minister replaces a board with a commissioner, the commissioner has all the functions, duties, powers, and protections of the board and of a member of the board ...... (6) A commissioner and any deputy commissioner hold office only until the persons elected at the next election of members of boards take office as board members."

The Minister's decision and likely judicial review throw up a number of legal questions, all which funnel into the interpretation of the words "seriously dissatisfied with the performance of a board":

- How high is this threshold and do the present circumstances pass that threshold?

- In any event, against which standard is that phrase reviewable? On the one hand it is a condition precedent to the exercise of power and therefore reviewable (ala Khawaja and Discount Brands; cf Hawkins). On the other hand, it has a subjective character, is not a pure question of interpretation, and does not necessary disclose an "ascertainable test" (ala Lord Cooke's caveat in Bulk Gas). Or is it essentially a political power for which there is "no legal yard-stick" which means it is non-justiciable (ala Curtis)?

- Assuming it is reviewable, are the factors relied on relevant?

- Are the actions of the (previous) board – particularly the adverse audit reports – relevant to assessment, given the present board was only elected in October 2007 after those issues arose?

- To what extent is the state of the relationship between Minister and Board relevant, given the entity is a Crown agent under the Crown Entities Act 2004, semi-elected, and in many respects set up as a semi-"arms length" entity (incl a number of formal relationship management tools). Or is it simply a codified example of responsible government and ministerial responsibility?

- And is the concern about the Minister being challenged in the media relevant? Might board members be able to rely on the freedom of expression provisions in the Bill of Rights (a difficult question in itself)? To what extent might that expression by board members have been in the pursuit of the board's mandate and in the best interests of the community they serve.

- The semi-election of board members raises a democratic imperative. The purpose provision of the New Zealand Public Health and Disability Act 2000 records the importance of the election:

(1) The purpose of this Act is to provide for the public funding and provision of personal health services, public health services, and disability support services, and to establish new publicly-owned health and disability organisations, in order to pursue the following objectives: ... (c) to provide a community voice in matters relating to personal health services, public health services, and disability support services— (i) by providing for elected board members of DHBs...".

- To what extent does this democratic imperative affect the threshold for removal under s31? Does it raise the bar?

- And if "unreasonableness" or "irrationality" is argued, will the traditional deferential Wednesbury standard apply or might the circumstances justify greater scrutiny of the Minister's decision, particularly as it appears to undermine the democratic imperative underlying DHBs.

More on this as it develops...

20 February 2008

NineToNoon: Constitutional Change, the Queen, and the Republic

I was on Kathryn Ryan's show today discussing some of the constitutional issues about changing our Head of State: > NineToNoon: "Law, Dean Knight" (20.02.2008) [mp3] (or streaming audio) Below are some relevant sources: - Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand's Constitution and Government (2004, OUP, Oxford), Chapter 4, "The Monarchy: When Will New Zealand Become a Republic?" 52 - Raymond Miller (ed), New Zealand Government & Politics (4 ed, 2006, OUP, Oxford), Chapter 2.2, Bruce V Harris, "Constitutional Change" 115 & Noel Cox and Raymond Miller, "Head of State" 130. - Philip A Joseph, Constitutional and Administrative Law (3 ed, 2007, Brookers, Wellington), Chapter 16, "The Crown" 583 - Colin James (ed), Building a Constitution (Institute of Policy Studies, Wellington, 2000), Chapter 11, Andrew Ladley, "Who Should be Head of State?", 267-275 - F M Brookfield, "Republican New Zealand: Legal Aspects and Consequences" [1995] NZ Law Review 310 - B V Harris, "The Constitutional Future of New Zealand" [2004] NZ Law Review 269 - Matthew SR Palmer, "What is New Zealand's constitution and who interprets it? Constitutional realism and the importance of public office-holders" (2006) 17 Public Law Review 133 - Matthew SR Palmer, "New Zealand Constitutional Culture" (2007) 22 New Zealand Universities Law Review 565 - Constitutional Arrangements Committtee, Inquiry to review New Zealand's existing consitutional arragements (August 2005).

14 February 2008

Affordable Housing and the RMA

> Parliament: "Affordable Housing: Enabling Territorial Authorities Bill" A conversation at a function last night took me back to an issue that I was reflecting on last year: whether territorial authorities presently have the jurisdiction to provide for "affordable housing" rules in their plans. That is, can, for example, requiring developers who construct large multi-unit developments to ensure that a certain number of units are maintained for "affordable housing" – be that social housing or "cheaper" housing? I tried to access the government's legal advice on this issue but it was withheld. You'll see from the Bill introduced late last year that the government has taken the view that such regulation is not possible under the Resource Management Act and so they have proposed a new regulatory framework. I'm not convinced I agree with their position that this type of regulation is not possible under the RMA. The fundamental premises in the government's analysis must be that the RMA is about "environmental" matters, not "socio-economic" matters. But I think this is misconceived. I think that – as a matter of jurisdiction – these socio-economic matters are within the purpose of the RMA and district plans rules can address them. That said, the RMA would require a careful assessment of whether, as a matter of a cost-benefit analysis, such rules are justifiable; but in my view that's a matter of evidence and justification – not jurisdiction. I'll explain further. The starting point or "lodestar" of the RMA is set out in its purpose clause, section 5:
section 5 Purpose (1) The purpose of this Act is to promote the sustainable management of natural and physical resources. (2) In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while— (a) Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and (b) Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and (c) Avoiding, remedying, or mitigating any adverse effects of activities on the environment.

Basically, everything in the Act comes back to this provision, along with the other principles set out in Part 2 of the Act. It effectively defines the functions of territorial authorities and therefore their jurisdiction to include objectives, policies, and rules in district plans (ss31, 74, and 79). Now, section 5 has a number of important components. First, section 5(1), has 3 main parts: - “promote” - “sustainable management” - “natural and physical resources”. For present purposes, the interesting part is "sustainable management". The other two are obvious: - "natural and physical resources" are defined broadly as including "land, water, air, soil, minerals and energy, all forms of plants and animals (whether native to New Zealand or introduced), and all structures". - "promote" sets out the aspirational nature of the purpose. In terms of the section 5(2) definition of "sustainable management", it is often divided into two functions:- the management function (the bit before the "while"); and - the ecological function (the bit after the "while"). In rudimentary terms, the provision directs that the "use and development" (and, oddly "protection") of natural and physical resources be managed to allow for people and communities to provide for their (various) "well-beings" while ensuring that certain ecological matters addressed. There's some academic dispute about the meaning of the term "while", particularly whether it's a co-ordinating conjunction or a sub-ordinating conjunction. As one person put it "[Whether] developmental or environmental interests should be balanced, or whether the satisfaction of what are environmental bottom lines … is a pre-requisite to any development being permitted" (Harris, 1995). The prevailing view at the moment seems to be the former; an "overall broad judgement" is applied and positive outcomes in terms of people's wellbeing etc may be used to justify non-compliance with so-called environmental bottom lines. I suspect, though, we haven't seen the end of this debate. But the main point is that the purpose provision clearly contemplates the achievement of many "anthropocentric" – human-centred – elements; it's just not about protecting "environment" or "ecological" matters. The management function identifies the importance of ensuring social, economic, and cultural wellbeing (although, the language suggests a neo-liberal, laissez-faire conception, where people themselves – not the management or regulation – are empowered to achieve well-beings). The so-called ecological function or environmental bottom lines are surprisingly anthropocentric too: - Paragraph (a) – or the intergenerational element – frames the desire for sustainability in terms of the needs of future generations, ie it's principally about people. - Paragraph (b) is about the intrinsic ecological value; people are irrelevant here. - Paragraph (c) refers to avoiding, remedying, or mitigating adverse effects on the environment. That may look like an ecological focus, but the definitions make it clear that the environment and this provision also incorporates anthropocentric concerns. Section 2 defines "environment" as follows:

"Environment includes— (a) Ecosystems and their constituent parts, including people and communities; and (b) All natural and physical resources; and (c) Amenity values; and (d) The social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters."

Again, people and communities figure prominently, along with social, economic, and cultural conditions or wellbeings. That's no surprise, though; when you think about it, much of our present RMA regulation is nakedly about (often, solely) people's wellbeing, particularly where it relates to "aesthetics" etc.

Similar points are made by the leading text in this area, including recognition that the RMA does address socio-economic matters (Nolan, 2005):

"Although the RMA may be regarded as first and foremost an environmental statute not designed to comprehend social purposes, this view is not without its critics. [T]he RMA does address social and economic matters in certain respect including, for example, the issue of inter-generational equity which is acknowledged in s 5(2)(a)."


"There can be no doubt that the Act is concerned with economic effects but the manner in which such effects are to be taken into account is complex and depends in part on the nature of the economic effects which are at issue. [Referring to the provisions I have just mentioned] Plainly, economic effects will be important and relevant in the preparation of policy statements and plans which are guided by Part II."

In simplistic terms, therefore I think it is relatively easy to construct an argument that regulation of developments for the purpose of ensuring affordable housing is within the purview of the RMA.

The development of housing involves the use of "natural and physical resources", namely land and structures. Therefore the RMA instructs that the sustainable management of those natural and physical resources should be promoted, through the control of the use of those natural and physical resources.

Is requiring the construction of affordable housing as part of those development promoting the sustainable management of the use of those resources?

Well, in terms of the management function, the construction of large developments may affect some people's socio-economic well-being; people from in lower social-economic backgrounds will not be able to afford to live in those areas. Of course, the development is likely to also affect the socio-economic well-being of others positively. But the point is that, under the management function, we have both positive and negative effects relevant to the overall broad judgement under s5(2).

Moving to the ecological function, this same disenfranchisement of some people from affordable housing is relevant to the inter-generational equity element (s5(2)(a)) because the profile of housing may not meet the housing needs of future generations. Under the environmental effect element (s5(2)(c)), the creation of this particular types of housing has an effect on the environment because it affects people and communities and their socio-economic conditions in the same way.

Of course, this simply identifies the relevance of socio-economic outcomes to the equation. It does not suggest they dominate. A judgement needs to be made. But that's my point. As a matter of jurisdiction, there effects are relevant to RMA regulation and the RMA is designed to provide mechanisms for these judgements to be made.

The RMA does not give local authorities carte blanche to make such rules though. The RMA requires they be justified through the consultative and deliberative processes. Most relevantly, any proposed regulation must survive the section 32 evaluation of alternatives, benefits, and costs:

s32 Consideration of alternatives, benefits, and costs (1) In achieving the purpose of this Act, before a proposed plan, proposed policy statement, change, or variation is publicly notified, a national policy statement or New Zealand coastal policy statement is notified under section 48, or a regulation is made, an evaluation must be carried out by [certain decision-makers]. (2)A further evaluation must also be made by [at certain times].(3) An evaluation must examine— (a) the extent to which each objective is the most appropriate way to achieve the purpose of this Act; and (b) whether, having regard to their efficiency and effectiveness, the policies, rules, or other methods are the most appropriate for achieving the objectives. (3A)… (4) For the purposes of the examinations referred to in subsections (3) and (3A), an evaluation must take into account— (a) the benefits and costs of policies, rules, or other methods; and (b) the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other methods. (5) The person required to carry out an evaluation under subsection (1) must prepare a report summarising the evaluation and giving reasons for that evaluation.(6) The report must be available for public inspection at the same time as the document to which the report relates is publicly notified or the regulation is made."

(Note particularly how section 32(3)(a) refers back to the section 5 purpose.)

This is where, in my view, the real action is. Is direct regulation of this effect, ie requiring developers to provide affordable housing as part of a development, the most appropriate means of addressing this problem? It might be. It might not be. But the RMA sets up a process and standard for that deliberation. Importantly, that requires an assessment of the evidence on the issue.

In my view therefore the present legislation allows these issues to be progressed and justified, without any need for further legislation or amendment.

As an aside, there's also nothing to stop the government making affordable housing a national issue, rather than waiting for local authorities to move on the issue. The RMA contemplates the expression of national priorities through National Policy Statements. This has a flow-on effect into local authority plans and decision-making. I won't go into the mechanics of that but in my view the government could have driven this issue by simply promulgating a national policy statement on the issue.

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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