18 December 2008

The Laws of New Zealand: Local Government (Reissue 1)

A (reissue) title on Local Government, co-written by Chris Mitchell and me, has now been published as part of The Laws of New Zealand series: > Christopher Mitchell and Dean Knight, "Local Government (Reissue 1)" in The Laws of New Zealand (LexisNexis, Wellington, 1992-) One is never quite sure whether to describe this work as a "chapter" or a "book". Strictly speaking, it's called a "title" in Laws of New Zealand parlance. But at 168 pages, it might be better described as a "real mission"! To give some flavour of the publication, I've set out below the preface.

Local Government has been a feature of our social and political landscape since the earliest days of organised European settlement. After one or two false starts, including the relatively brief existence of provincial government, the basic elements of the current system were in place by the early 1870s. In that sense, the development of the local government model pre-dated both national identity and the national constitution but, unlike them, its further development was slow and fitful and for years remained anchored in British tradition.

As the country grew, so too did the numbers of both territorial authorities and the many special purpose authorities such as harbour boards, drainage, river and catchment boards, and transport and energy boards. All of them were elected and locally funded bodies with specific and tightly prescribed powers of governance. By the late 20th century there were well over 600 local bodies exercising some form of governmental powers. In addition to the range of statutes under which each variety of local body was constituted, there well over 1000 local statutes empowering specific aspects of their activities. The only significant change to the legislation governing territorial authorities was the union of the counties and municipal corporations legislation to create the first Local Government Act in 1974.

In his preface to the original version of this title the author, Jonathan Field, noted that “local government is where the structures of democracy touch most directly on the lives and circumstances of the citizen; where responsiveness to changing needs, transparency in meeting them, and accountability for the management of public resources, are at their highest premium”. As the 20th century came to a close, these implicit objectives and values were seen to be compromised by laws and structures which were highly complex and not always consistent or coherent. The first wave of change came in 1989 with a major restructuring of the sector under which more than 600 bodies were reduced to fewer than 100, and amendments to the 1974 legislation which required a completely new approach to planning, funding and accountability.

Surprisingly however it was not until 2002 that legislation was enacted to define the role, purpose and principles of local government, and to give local authorities broad general powers to achieve the many obligations and expectations imposed on them. While this package of statutory reform was extensive (and included electoral and rating law) it remains incomplete, and parts of the 1974 legislation remain in force as do the fragmented statutes relating to drainage, water and transport – all traditional core areas of local government activity. Further legislation can be expected to affect these aspects of local government within the next few years, and amendments to give effect to the Local Government Commission’s review and recommendations on the 2002 legislation will also no doubt appear.

So the law on local government remains in a state of necessary but slow moving change. It should be emphasised that while this title deals with many of the core areas of local government, reference must be made to other important chapters (especially ENVIRONMENT and RATING) for a more complete understanding of the topic.

It remains for the authors to gratefully acknowledge those that have helped in the production of this title. First, we acknowledge the author of the original version of this title covering the earlier legislative regime, Jonathan Field. Our version incorporates some aspects of the previous commentary and the original version also helped us settle our own approach to this topic. Secondly, thanks to Tim Miller, Research Assistant at Victoria University of Wellington for some research assistance with the project. Thirdly, we are grateful to those close to us that countenanced the demands on our time required to complete such a project. Finally, we recognise the energy and assistance of the publisher’s editor, John Lulich, in bringing together our work into a format which we hope readers will continue to find useful.

Christopher Mitchell Dean Knight November 2008

And the short-form table of contents is set out below also:

PART I. STRUCTURE AND CONTEXT (1) History (2) Structure of Local Government (3) Related Persons and Bodies (4) Reorganisation Proposals PART II. PURPOSE, STATUS, AND PRINCIPLES (5) Purpose (6) Role, Status, and Principles (7) Treaty ofWaitangi PART III. APPOINTMENT OF LOCAL AUTHORITIES (8) General Overview (9) Local Elections (10) Initial Meeting of Local Authority PART IV. GOVERNANCE AND MANAGEMENT (11) Governing Body (12) Elected Members (13) Other Governance and Management Bodies and Staff (14) Meetings (15) Decision-Making Framework and Principles (16) Public Participation (17) Planning and Reporting PART V. LOCAL AUTHORITY SERVICES (18) General Overview (19) Roads (20) Water and Sanitary Services (21) Waste Management and Disposal (22) Community Facilities (23) Emergency Management (24) Reserves (25) Land Ownership, Acquisition, and Disposal PART VI. REGULATORY, ENFORCEMENT, AND COERCIVE POWERS (26) Introduction (27) Bylaws (28) Other Regulatory Regimes (29) Enforcement Powers (30) Legal Proceedings PART VII. FUNDING AND REVENUE (31) Overview on Funding (32) Funding Mechanisms PART VIII. PUBLIC ACCOUNTABILITY (33) Official Information and Transparency Mechanisms (34) Supervisory Bodies

1 comment:

Anonymous said...

Definitely on my ‘must read’ list.

And that isn’t a joke.

Merry Xmas to you Dean and your readers.

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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