In the third of a series of three articles, Gavin Beattie of the Local Government Commission sets out the last important procedural steps for councils after determining their final representation review proposals.
Fifty-seven councils are required to review their representation arrangements prior to the 2019 local authority elections. The reviews cover the number of elected members and how they are to be elected. The reviews ensure each council continues to provide fair and effective representation for individuals and communities in their area: a fundamental requirement for strong local democracy and the maintenance of confidence in local government.
Some councils have completed their review with no further decisions required. These include councils that received no submissions on their initial proposals, with these proposals then becoming final proposals.
Others received submissions and then determined their final proposals, with no appeals or objections against the final proposals being received.
Still other councils have either determined their final proposals, or are in the process of doing so, and have received, or can expect to receive, appeals and/or objections. In addition, a number of councils are seeking Local Government Commission approval for proposals that do not comply with fair representation requirements (known as the ‘+/-10 percent rule’).
Whether there are appeals/objections, or approval is being sought for non-compliance, there are important requirements that these councils need to follow to ensure a satisfactory outcome to this process.
This article addresses some of these requirements and particularly in relation to non-compliance which councils will be approaching for the first time since legislative amendments in 2014.
Consideration of appeals and objections
It is important to understand the difference between appeals and objections in relation to the community’s rights in respect of a council’s final proposal. There are rights of appeal for those who made submissions on the initial proposal, with those appeals relating to the same issues of concern.
If a council makes changes to its initial proposal, there is a right of objection against the changed (final) proposal. The right of objection is open to any interested person or organisation.
On receiving the appeals/objections, along with other required information, the Commission will decide whether a hearing should be conducted. Hearings are held in the locality concerned, generally in the council chambers. Hearings are open to the public to attend and listen, as well as for the opportunity for appellants and objectors to address the Commission.
The council is asked to outline the process it went through in reaching its final proposal and the reasoning behind the proposed arrangements. The Commission expects elected members most familiar with these matters, often the mayor or regional chairperson will appear at the hearing.
Where there are only a few appeals or objections, and they are straightforward and relate to matters well covered in the council papers, the Commission may decide a hearing is not necessary. In this case it will make a determination based on the papers presented to the Commission.
It should be noted that the Commission’s determination is not limited solely to the matters raised in appeals and objections. The Commission must ensure all the proposed representation arrangements are in accordance with the legislative requirements.
Non-compliant fair representation proposals
In 2014, amendments were made to the fair representation requirements (the +/-10 percent rule) for territorial authorities. The existing provisions for regional councils to refer non-compliant constituency proposals to the Commission for determination were retained.
For territorial authorities, in addition to existing flexibility in relation to isolated communities, ward proposals outside the +/-10 percent rule can now be approved in certain circumstances.
These circumstances relate to effective representation for the area concerned and particularly a need not to divide communities of interest, or group communities of interest with ‘few commonalities of interest’.
The same flexibility in relation to the +/-10 percent rule applies in respect of any subdivisions of community board areas. All such ward and subdivision proposals, including those relating to isolated areas, must be referred to the Commission for determination.
To assist the Commission in making these determinations, councils need to provide good information on the communities of interest they consider warrant recognition despite the +/-10 percent rule.
Residents may have submitted on their perceptions of particular communities of interest based on historical and/or geographical factors. While these may still be valid, the Commission will still need evidence they continue to apply, as well as day-to-day functional connections. These connections may include factors, such as areas serviced by local schools, community services and facilities, and shopping centres.
On the other hand, there may be a need to demonstrate that groupings involving nearby areas (which would result in compliance) would result in areas with ‘few commonalities of interest’. An example of this may be rather different demographic characteristics.
The more evidence a council can provide to justify the desired exception to the +/-10 percent rule, the more likely the Commission will be to endorse the council’s proposal.
This is the third in the series of three articles by Gavin Beattie of the Local Government Commission.
This article was first published in the October 2018 issue of NZ Local Government Magazine.