The constitution of local government

Another constitutional review

Constitutional arrangements in New Zealand are up for review again, just over five years since the last inquiry was published.  The terms of reference this time appear more focused - on electoral matters, Crown-Māori relationships, bill of rights issues, and the matter of a written constitution.

This blog considers where local government falls in New Zealand’s constitution.  It’s an issue that I think needs to be brought squarely into the mix, not just as a detail when considering Māori representation.

Report of the Constitutional Arrangements Committee, 2005

The last review decided that New Zealand’s constitution is one of “pragmatic evolution”.  It is based, the panel said, on New Zealanders’ instinct to fix things when they need fixing, when they can fix them, without necessarily relating them to any grand philosophical scheme. 

Lack of an underlying philosophy or consideration of the relationship between constitutional and democratic principles is a bit worrying.  Pragmatism can be ad hocery by another name.  It hardly makes for consistency or good government. 

Some of the concerns raised by the panel in the last review are also a bit of a worry:

“ Minor repairs here and there may alter the overall balance between the branches of government in a way that is not necessarily foreseen or intended. We are concerned that this has happened recently.

“Committee members offer different examples. Among them are

• the conferring of powers of general competence on local government

• the postulation of “principles of the Treaty of Waitangi” in legislation and the judges’ role in   elucidating them in the course of interpreting the phrase in the context of the particular statute

• the question whether state education is required to be secular” (P12)

A philosophical grounding – perhaps laid out in a written constitution – should avoid such concerns. 

Focusing just on the first concern: there is clearly discomfort that the Local Government Act 2002 broadened the powers of local councils.  Why?  Is the constitution just about protecting the power of one group over another?  Does local government not exist in its own right, but only at the pleasure of central government?  Is this constitutionally sensible? 

Federalism puts local first

Consider the experience of the former colonial states most like New Zealand.  Australia, Canada, and the United States all have written constitutions.  They were drawn up by federations of erstwhile separate provinces or states – former colonies.  Through federation they created and formally conferred selected powers on a central government.  These powers related to functions best performed in a united way at the centre.  They included defence, trade, property rights, and currency, for example. 

The point is that the central – federal – governments were created by the provincial governments.  The centre’s powers were conferred by the people through a written constitution.

Consequently, state or provincial governments in these countries empower local government, mainly to undertake functions best performed “on the ground”. 

In the United States local powers are defined widely.  Municipalities are typically involved in local infrastructure, parks, reserves and recreation, police, fire services, emergency management and services, urban planning, economic promotion, housing, transportation, court activity.  Given these local responsibilities local government is an important focus of democracy, and drives the character and quality of local life.

Creation of a centralised state in New Zealand

New Zealand is different.  We have a gap where provinces once existed, and local government remains subject to central edict.  The reasons lie in our constitutional history.

We could consider the Treaty of Waitangi as being parallel to the written constitution of those other post-colonial states.  The difference is that through the Treaty Māori ceded certain powers best implemented centrally to the British Crown rather than to an agency of their own making. 

Consequently, New Zealand’s arrangements for government were designed by the British Parliament.  In particular, the 1852 New Zealand Constitution Act created six provincial councils, a legislature, a central House of Representatives, and defined relations among them.  

Land wars and the demands of development in sparsely settled areas mean that the provinces struggled financially.  In the end, bickering among them and the emergence of separatist movements in the South Island led to their abolition in 1876.  Since then, local government has operated at the behest of central government. 

Consequently, the power of people and their communities depends on the goodwill of nationally elected representatives and a highly centralised bureaucracy.

Shifting the balance

Historical circumstances, small scale communities, and a unique if contested contractual place for Māori may justify New Zealand’s singular form of democracy. 

But the fact that conferring the power of general competence on local government disturbed central politicians in the 2005 review does raise questions around how rights are protected -- or evolve -- in an unwritten constitution.  Federal arrangements elsewhere certainly spell out the relationship between central and local (state or provincial) government more clearly on the basis that power is ceded by the people to their representatives, not the other way round. 

As it turns out the central politicians responsible for the last review need not have worried about what they might have away.  Any concession of authority was more form than substance.  It certainly did not stop central government from stepping in and reshaping Auckland. 

Maybe the centre has a case.  Local government does not always get things right.  But, then, nor does central government. 

Distrust of local by central government is a form of distrust in citizens and their communities.  That’s too bad in a democracy.  And perhaps it’s a state of affairs that the forthcoming constitutional review should confront.

Consider the possibility that communities might play a bigger rather than smaller role in democracy.  That building capacity in communities is one way of reducing the excesses of central government.  That civil society and voluntarism could contribute more to shaping New Zealand, and central government less. 

These propositions might require some radical rethinking about constitutional matters.  But through them we might just put the demos – the people in their territories – back into our democracy.