New Zealand: One Council, Many Voices - The Local Government (Auckland Council) Act

Last Updated: 12 October 2009
Article by Iain Thain, Linda Going and Mark Williamson

The new Local Government (Auckland Council) Act, recently passed under urgency, provides for the governance structure of the Auckland Council. The changes from the initial Bill which received its first reading back in May are significant. Among other things, the Act adopts the recommendations of Parliament's Auckland Governance Legislation Committee which are intended to substantially increase the powers and responsibilities of local boards. In this update we briefly look at some of the issues relating to those local boards. What are local boards?

Local boards represent the so-called 'second tier' of governance in the Auckland Council structure. They are special creatures of statute. As the commentary to the Bill stated 'These boards are a new form of governance body'. Importantly, a local board is unincorporated (ie unlike a company or the Auckland Council itself, a local board does not have separate legal personality and cannot sue or be sued in its own right). A local board is not a local authority or a community board or a committee of the Auckland Council. It will not itself own property or employ staff. A local board is a decision making body.

What does the Act say about local boards?

The Act endeavours to put the 'local' back into local government, without compromising the benefits of 'one council' for the Auckland region. However it is important to recognise that the structure contemplated by the Act remains a work in progress. Much of the detail governing the relationship between local boards and Auckland Council is still currently being developed. This further detail will appear in the third piece of reform legislation, expected to be introduced in November this year.

In the meantime, the concept of 'shared governance' promoted by the Royal Commission has returned to prominence. The governing body of Auckland Council and the local boards are to sit alongside each other and have distinct roles, rather than operating in a typical hierarchical relationship. Decisions on local matters made by local boards will legally be decisions of Auckland Council. However, it is each local board that will be responsible and 'democratically accountable' for its local decisions (as opposed to the governing body of Auckland Council).

Decisions relating to regulatory matters are to remain the responsibility of Auckland Council. But, decision making responsibility for all 'non regulatory' matters should be allocated to local boards unless Auckland Council determines that the decisions are best made regionally. We understand the present intent of Government is that the next piece of legislation will prevent Auckland Council removing an allocated function of a local board without that board's consent. It is also envisaged that the third Act will put in place a dispute resolution mechanism to manage disputes between Auckland Council and local boards.

Annual budgets for local boards will be set by Auckland Council having regard to a range of factors prescribed by legislation. Each local board will also have a 'local board agreement' with Auckland Council and is required to prepare and adopt a three year plan for its area in accordance with the special consultative procedure set out in the Local Government Act 2002.

Key issues

Ensure no loss of regional focus

Clearly, a great deal of thought, hard work and leadership will be required to ensure that Auckland Council is not distracted from its regional focus by the management of multiple relationships with local boards. To some degree, the flavour of the Royal Commission's approach to what it referred to as 'local councils' has now been adopted in the context of local boards (particularly, the concept of shared governance). The challenge will be applying these concepts in an environment with 20 to 30 or so local boards, rather than only six local councils as the Royal Commission had recommended.

Local board responsibilities

One of the first key matters will be the initial allocation of local board responsibilities and local budgets which are intended to apply from 1 November 2010. While the commentary to the Bill refers to this process, the Act itself gives no guidance. Again, we expect that this may be one of the matters which will be dealt with in the third piece of legislation. Fundamentally, the Agency will need to decide which 'non regulatory' decisions are best made at a local level and which decisions should best be made at a regional level. The decision by the Legislation Committee not to specify particular decisions which should be made 'locally' in the Act is good (although it will be interesting to see whether this approach is carried through to the third piece of legislation).

With its 'on the ground' knowledge of each current council's activities, the Agency should be better placed to make such judgements. A good example relates to the provision of libraries. Decisions relating to libraries are referred to in the commentary to the Bill as being among the functions which Parliament expects would be delivered by local boards. While some decisions relating to libraries may well be local, much work has been done in the region in recent years to improve the regional operation and co-ordination of libraries including development and implementation of a regional information technology platform. Clearly, the allocation of decision making responsibility will need to reflect the local and regional aspects of delivery of this particular service.

Timing

As with every task allocated to the Agency, timing will be a significant issue. This is particularly the case with local boards as the Local Government Commission is not required to determine the number and boundaries of local boards until 1 March 2010. Given this, it will be interesting to see the approach taken by the Agency. One approach would be to leave most functions remaining with Auckland Council until the structure is, to some extent, bedded down and it becomes clearer where responsibility for decision making will best lie.

Equity

Looking ahead, clearly issues of equity between local boards will need to be carefully managed. In allocating funding between local boards, Auckland Council is required to balance a range of competing factors such as the level of dependence on local government services and facilities in each local board area with the rates revenue derived from that area. Accordingly, we would expect the content of Auckland Council's local boards funding policy to be hotly debated across the region and in particular amongst Auckland Councillors and members of local boards. The Act refers to a funding policy which will apply from when the LTCCP for the period from 1 July 2012 is adopted but the Act contains no details of what is to occur in the interim period. We assume that the third piece of legislation may provide that the initial funding policy applicable from 1 November 2010 (together with initial local board plans and local board agreements) will be developed by the Transition Agency.

Roles and responsibilities of Auckland Council staff

Post 1 November 2010, Auckland Council staff will also need a clear understanding of their roles and responsibilities in relation to local boards (as noted above, local boards themselves cannot employ staff). We anticipate these issues are currently being worked through by the Transition Agency. A few staff will presumably have dedicated responsibility to a local board (to assist with administration and representation issues). A range of other staff will presumably continue to be based at regional centres providing support to one or more local boards within defined areas. The remainder of Auckland staff will presumably have responsibility for delivery of centralised services and addressing regional issues.

Strong leadership

Strong leadership by the CEO of Auckland Council will be critical to address these issues and to deliver effective management of the local board structure. The Act specifically provides that the Auckland Council CEO is responsible for a range of matters relating to local boards including implementing the decisions of the boards and implementing each local board agreement. Effective leadership of each local board, through its chairperson, will also be essential.

Shared vision

Finally, the many decisions to be made by the Transition Agency and Auckland Council relating to local boards involve a high degree of discretion and judgement. To avoid the possibility of pointless and costly disputes and litigation, a strong relationship between Auckland Council and the local boards will be critical. Adopting the language of the Royal Commission in the context of local councils, the success of the relationship will depend on:

  • the cultures of each elected body. In particular, whether the elected members of Auckland Council and the local boards take on board the fact that they are all part of the same organisation and act accordingly; and
  • the extent to which the members of the Auckland Council understand that a local voice and influence is essential, in order for the organisation as a whole to function effectively.

As always, we will keep you posted as the process of reform continues.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions