The Court That Broke Jersey by Steven Malanga, City Journal Winter 2012
Posted by BR:AKL_Admin01 on February 7, 2012 · Comments Off
Could this happen here in Auckland?
Technically no as far as the courts are concerned as we have the Parliamentary Sovereignty (or Parliament is Supreme) system where our NZ Parliament can create any laws it deems fit including “challenging” our court system as Sir Robert Muldoon with compulsory super when he got elected in 1975. Something anyone will learn in NZ Politics or LAW 121 at the University of Auckland. However there is nothing to stop Parliament effectively carrying out what the Jersey Supreme Court did (and still does) upon Auckland and the Auckland Council due to a few quirks in our laws. Also there is nothing stopping Auckland Council running away with its own agenda if the mayor or council have a simple majority to do so. If Auckland Council stayed within the confines of the Local Government Act 2009 (Auckland Governance) and was deemed functional by the central government – then Auckland Council could do as it wishes as the we do not have “Recalls,” binding referenda (both as the Americans have in their State and City Legislatives), nor minority councillors calling for a vote of “no confidence” (well least I think they can not – never have seen it). All us voters can do is wait three years to try to turf out the sitting council members and the mayor on the vote. If Auckland Council did step outside its mandate per the Local Government Act (and in part the Resource Management Act 1991) the courts can challenge the council. It is of note that the Environment Court which oversees and interprets the Resource Management Act (the High Court can as well on points of law) can challenge and strike down Council decisions if the court believe’s the Principles of the RMA were breached (and the Environment Court has down so quite regularly). So basically our courts can challenge Auckland Council (and it is usually the Environment Court that will if a case is brought before it) but not to the active degree seen in Jersey. We also have other checks and balances such as the Ombudsman to “prod” Auckland Council from time to time such as Local Government Official Information Act requests.
However our Courts are the least of Auckland Council’s worries – if you look at Environmental Canterbury and Christchurch City Council our own Parliament would be more a worry against Auckland Council.
As a supposed safe guard in the Local Government Act (and presumably (someone correct me if I am wrong please) the RMA), the Minister of Local Government (current the Hon. Nick Smith) can either appoint a monitor to “monitor” a dysfunctional council or as happened with Environmental Canterbury (when the Hon. Rodney Hide was Local Govt Minister), the Minister can sack the Mayor and entire Council and replace it by Commissioners the Minister’s choosing until the next local elections are held. Oh and by the way Hamilton City Council is close to being sacked as well as of current. As a side note, the Canterbury Earthquake Recovery Authority and related issues around that in Christchurch are unique given the double Earthquake and I would not use it as a focus point here.
Now appointing a monitor or replacing a council with commissioners is a safeguard encoded in our legislation – in theory the Minister can not do it willy-nilly and would need the situation to fulfil criteria first including having confidence of the Prime Minister before installing monitors or commissioners. Now I said that in theory – there is alway politics and the Super City of Auckland is no stranger to politics especially around the Council Controlled Organisations and the City Rail Link. In theory as well especially if the the council was hung, in conflict with the mayor or basically infighting – more to the point perceived by Parliament, the Government could sack the council and install commissioners who would do (not so implicit) the government’s bidding. Effectively another version of the Jersey Supreme Court here in Auckland that has central government “policy” enthrusted up the city whether we like it or not.
Fortunately for Auckland we have not drawn the attention for commissioners to be installed – although parliament does try to rule Auckland out of Wellington in local government affairs (transport being the main one). However there is nothing stopping it from happening to which our Courts would be powerless as Parliament can write a law to over ride a court decision.
Maybe as a safeguard at our own end the Recall function should be added to our Auckland Council. Simply put if a petition of either 51% or 67% of eligible Auckland voters go for a “recall” then the Council is effectively sacked and we go to the polls early to elect a new Auckland Council and mayor. This has happened in California to mixed results. If Auckland Council did become dysfunctional then the Recall system might give us an opportunity to
reign in the renegade council before Wellington does.
So could what happen in Jersey State happen here in Auckland due to not our Courts but our own Parliament – and do we need a recall system as a check and balance for Auckland Council? An interesting question it might be.