Constitutional Change and Local Government
Geoffrey Palmer
Address to launch of A Constitution for Aotearoa New Zealand, hosted by the Canterbury/Westland branch of the New Zealand Law Society, Christchurch
22 November 2016

Introduction

Once upon a time I was the Member of Parliament for Christchurch Central. It was a splendid electorate and the experience taught me a lot.

I am delighted to see another former MP for Christchurch Central here tonight, Her Worship the Mayor Lianne Dalziel. Congratulations on being re-elected the Mayor of Christchurch. What a formidable task you have as the city returns to normality after the earthquakes.

In the constitutional changes of which we shall speak tonight, Local Government has an important role. Local government should be front and centre of the new Christchurch.

That is why I invite the Mayor to lead a revolution in local government.

I mourned when Christchurch had its dignity destroyed by earthquakes.

My parents who both attended the University of Canterbury were married in the Holy Trinity Avonside Church in 1928. That edifice is now obliterated.

The project Andrew Butler and I have come to talk to you about is the new Constitution we are proposing for New Zealand.

We are taking submissions and will put out a final version next year. We really do want involvement from the public. We have submission forms here for distribution. Please let us know what you think. The website is www.constitutionaotearoa.org.nz.

When I became the MP I met that interesting and well known Christchurch lawyer A C Brassington. He retired to Nelson not long after. He had taught constitutional law at the University of Canterbury Law School. He was known as Brasso and exhibited some eccentric habits, including a penchant for homburg hats and bow ties.

After he died I purchased much of his law library and a very good library it was too. The Law Reports and set of periodicals I gave to the University of the South Pacific to help with their library. But a number of his constitutional texts I still have.

Alan Brassington was a stalwart of the Constitutional Society. That organisation was formed in the years after the abolition of the Legislative Council in 1950. The Society earnestly advocated until the mid-1960s for a new upper house, a written constitution and a bill of rights to protect the basic rights of citizens.

But their submissions were rejected by Parliament.

What I want to say tonight is that Brasso was before his time in advocating a written constitution for New Zealand. But he was correct, as Andrew and I shall endeavour to persuade you.

I also acknowledge my friend and former colleague at the Law Commission Professor John Burrows QC who, with Sir Tipene O’Regan, led a conversation into New Zealand’s constitutional arrangements that reported in 2013.

Their work has been very valuable in our project, particularly on the level of demand in the submissions for a written constitution.  We have a research assistant examining those right now.  That inquiry demonstrated that citizens in New Zealand do not understand their own constitutional arrangements and there is an urgent need for better education in civics.

We also have here tonight Professor Philip Joseph of the University of Canterbury Law School who had written the standard text on New Zealand’s constitutional law. And greatly needed it is too, since the ingredients of our constitution are hard to find. And it is good of him to come here and speak about our project.

Clearly Christchurch has all the ingredients and the people to promote this project and I hope that will occur.

We had an excellent lunchtime meeting today at the Scorpio Bookshop where we spoke about the project to an interested audience numbering more than 60.

Local government

Alongside central government in most countries run some form of local government, generally carrying out a variety of functions. Some measure of local government is necessary in all properly governed countries. The issue is the form it should take.

The powers of local government are an important part of the public power that can be exerted in New Zealand, and finding the right balance between accountability and efficiency, and between local and central government can be difficult.

As it stands, there is an unsatisfactory and unfinished character to current local government structure in New Zealand.

What we do believe in this regard is that New Zealand does not need federalism. Both Australia and the United States have it but it makes things very complicated indeed. Constitutional change is much easier to arrange in a unitary state than it is in a federation.

Christchurch has reason above all places in New Zealand to be aware of the problems of local democracy.

First, the earthquakes resulted in great powers being given to the Executive Government by Parliament. In 2011 Canterbury, and particularly Christchurch, suffered grievously from multiple earthquakes. The Canterbury Earthquake Recovery 2011 Act was rapidly passed to ensure that urgent action could be taken. The prime purpose of the Act was “to provide appropriate measures to ensure that greater Christchurch and the councils in their communities respond to, and recover from, the impacts of the Canterbury earthquakes”. As a result of the Act, the Christchurch City Council lost much of its governance powers, powers which were instead vested in the temporary Canterbury Earthquake Recovery Authority (CERA), which was placed under the direct authority of the Department of the Prime Minister and Cabinet, with the appointment of a Minister for Canterbury Earthquake Recovery to oversee the efforts. Vast swathes of statute law, democratic protections and due process requirements were swept away. No doubt some extraordinary powers in Canterbury were necessary. But emergency powers, like other Government powers, are capable of being abused, and remedies against that abuse are greatly diluted by emergency legislation. It easily goes wrong. The recent report of the Human Rights Commission demonstrates the deprivation of rights that can occur in these situations.

The relationship between local government and central government in New Zealand is not satisfactory. The lessons seem to be clear.  Democratic government is frequently troublesome. The replacement of the Canterbury Regional Council elected members by Government appointed Commissioners by statute in 2010 was a sad day for local democracy. And it is not yet fully restored. Local decision-making, local responses to local issues, and local accountability are critical components of our democracy. Central governments in New Zealand frequently think they know best, but that confidence sometimes proves not to be justified.

Local government makes up a vital and continuing feature of governance in New Zealand. It can achieve a great deal for people. In the ever-widening diversity that characterises modern New Zealand there is a great deal of difference between various regions and their attitude to local government. There is a troubling pattern of constant amendment of local government legislation by central government aimed at allowing central government to get its own way. The Minister of Local Government always seems to be a very junior Minister. Things would be improved if the portfolio were given to a senior minister, because there is much work to do.

If the earthquakes past and present prove one thing it must be that we need stronger local government. And what we do not need is the pattern of constant change every time the political complexion of the central Government changes. Yet that is what we get.  Central government also has a propensity to load up local government with new tasks and new legislation, while providing no funding to carry out those tasks.

Local government needs more constitutional autonomy in New Zealand than it enjoys. Too often it is regarded as the agent of central government to be kicked around and told what to do and not properly consulted.

Local government in New Zealand could be more vibrant, effective and responsive to its communities on local issues if it were provided with a robust constitutional place upon which to stand and a more coherent and principled set of legal requirements under which to function.

Divided powers between central and local government add to the constitutional protections available to citizens. We hope that in providing constitutional protection for a strong, transparent and accountable system of local government, which has a right to manage its own affairs and is adequately funded, we can improve the system of governance we have here in New Zealand and improve people’s ability to participate in their community, and in government more generally.

We found this one of the most difficult issues to deal with in the entire Constitution of 118 Articles. At the core of what we propose is Article 110 which says in part that the State must have a democratic, transparent and accountable system of local government based on a number of principles including the principle of subsidiarity, meaning that the provision of services and the solution of problems should take place as close to the citizens as practicable as the nature of the relevant process allows subject to allocative efficiency. We advocate a transparent and accountable system of local government based on these principles. Here is what we came up with and we really do want to receive submissions on this.

110 Local government

(1) The State must have a democratic, transparent and accountable system of local government based on the following principles:

(a) the principle of subsidiarity, meaning that the provision of services and the solution of problems should take place as close to the citizens as practicable as the nature of the relevant process allows subject to allocative efficiency:

(b) the power of units of local government to manage their own affairs independently within subject-matters established in Acts of Parliament:

(c) fostering within each unit of local government the concept of community:

(d) local government representatives must be democratically elected by secret ballot:

(e) local government must be open and transparent in its decision-making and accountable to its citizens:

(f) the financing of local government by the imposition of rates on land and property provided for by Act of Parliament must be accompanied by a revenue sharing programme with central government negotiated between central and local government:

(g) Parliament may provide special procedures for central government to ensure compliance with the law and the execution of delegated responsibilities, including the appointment of independent commissioners in accordance with law.

(2) When any new responsibility is placed on local government by or under Act of Parliament, that must be preceded by adequate consultation and estimates of the financial and administrative costs of that new responsibility.

Conclusion

I leave you with the idea that significant constitutional change is required in New Zealand if local government is to flourish.

Tell us what you think.