Local Government Magazine
Legal

Major legal rethink needed

LINDA O’REILLY – PARTNER, BROOKFIELDS LAWYERS

What would it take to introduce localism in this country?

Maybe the time has come for the idea of localism in New Zealand? I am not sure what appetite the current government has for it, but LGNZ launched its Localism Project at its 2018 conference and has a localism discussion paper due in July this year. The NZ Initiative, an independent public policy think-tank, has also recently released #LocalismNZ, a paper aimed to encourage the concept.

But if the concept is accepted into mainstream thinking the implementation would require significant changes to the current law applicable to local government.

I do not intend to debate the merits of localism as an approach to government. But it would be helpful for the discussion to have some broadly-accepted concept of what it means. The NZ Initiative paper seems to suggest it is a concept based around the principle of subsidiarity – ie a governing body should only intervene where the local community and its constituent parts, including its organisations and citizens, cannot meet their needs by themselves.

LEGISLATION WOULD EITHER NEED TO BE REPLACED OR INCORPORATED INTO THE NEW MODEL.

LGNZ seems in its commentary to date to broadly agree but casts doubt on the practicality of introducing this principle into our country’s constitutional framework in its current state. Instead, it raises the prospect of some form of contractual devolution, whereby responsibilities and duties can be devolved to those units of local government that seek them and can demonstrate the capacity to deliver.

In a practical sense, what both organisations seem to be contemplating is the extension of local decision-making into areas such as policing, social housing, education and social welfare, and to enable that change through forms of direct taxation including income and GST.

These are areas of control that currently fall outside of the ambit of local government. That could be undertaken at a local level, as indeed they are in many other parts of the world. However, it should not be assumed that localism would be implemented through our current units of local government. In this respect, the contractual devolution model appears constricted by what we already have rather than what could be.

From a legal perspective, to develop localism as an approach to government would require a fundamental re-think of the current statutory framework that applies to local government. Instead of the Local Government Act 2002 with its top-down hierarchy of councils (regional and territorial) and boards (local and community), there would need to be a bottom-up structure with a default position that allowed duties and responsibilities to be performed at the lowest reasonable level.

In an ideal model, this would include all government functions. But given the difficult constitutional issues, some areas (defence for example) would remain with central government, and jurisdiction might need to be split in areas such as education to ensure a minimum level of service would be maintained.

This would not, of course, involve merely a re-write of the Local Government Act. Other legislation would either need to be replaced or incorporated into the new model. It would make no sense, for example, to have the current Resource Management Act with its multiple regulatory constraints, and National Policy Statements and National Environment Standards if it were up to local units of governance to decide the type of environmental controls they wished to apply.

And right here is where it starts to break down. Without some form of central control of minimum standards, how does one area ensure clean water when the area upstream does not adequately control discharges into water?

Or are we really talking about something much more limited than localism in its wider sense? One could argue that the fact that there are different district plans in different districts is already a form of localism. So how far does the concept really extend? Sounds like a win-win situation for lawyers anyway!


This article was first published in the May 2019 issue of NZ Local Government Magazine.

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