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Powers of Competence Damnify Citizens' Rights

Powers of Competence Damnify Citizens' Rights

Monday, July 16 2001
Gerry Eckhoff Speeches -- Governance & Constitution

Speech Notes: Speech to Local Government Conference

Politicians of all persuasions love building monuments to themselves, usually at someone else's expense. To give local body councils the power of general competence is foolish in the extreme.

Councils should be constrained on behalf of the public to the provision of public goods - i.e. where all can benefit and none can be excluded. Under the provisions of 'general competence', the potential clearly exists for councils to be captured by single-issue politicians who might be confused by the difference between private and public goods.

Certainly, what I call 'political goods', will rear their ugly heads more often. The rights of councils and the coalitions they form with lobby groups will override the right and freedom of the individual.

As a learned judge at the end of the 19th century observed, "I know of no duty of the court , which is more important to observe and no power of the court, which is more important to enforce, than its power of keeping public bodies within their rights. The moment public bodies exceed their rights they do so to the injury and oppression of private individuals and those persons are entitled to be protected from arising from the operations of public bodies."

I believe a case in point is the RMA: Too many New Zealand laws damnify centuries of common law. Too often New Zealand Governments give polluters of all kinds, the most prized defence in court - the defence of 'statutory authority'.

Ronald Coase observed: "People that find it difficult to sleep because of jet engines roaring overhead; (publicly authorised and operated), when people are unable to think because of the noise and vibration from trains; (also publicly authorised and operated) when people find it difficult to breath because of fumes from traffic or from sewerage ponds; (publicly authorised and operated) when private driveways are blocked by road obstructions (publicly devised), and then with their nerves frayed and mental balance disturbed they proceed to declaim about the disadvantages of private enterprise and the need for government regulation!!

It is important for local body politicians and their officials to realise that existing law is there to protect them also.

I am sure that delegates here today, whether you are officials or politicians want to see responsible decision making, and checks and balances.

We are all well aware how single issue politicians have the ability to capture and misuse political power.

The existing Local Body law makes many potential activities 'ultra vires' for Local Authorities.

This is quite deliberate, as Parliament's intention was always to constrain the scope of Local Body activities. This, as much, protects local politicians from the vote buying excesses of their colleagues as it protects the officials who need from time to time to point out the inappropriate use of ratepayer's money.

It would seem that the delivery of general competence to local bodies will allow central Government to impose or authorise more and more requirements even extending to the delivery of health and educational services essential services normally the preserve of central government.

Perhaps councils could also run grocery stores in remote areas in an attempt to deliver a 'social service'. I believe most people do not want a bar of a partnership with either local or central government. A partnership denotes to me some kind of equal standing. Many rural landowners pay rates which are very poor value for the service that is provided. Where is the partnership in that?

Ratepayers give; local bodies receive. Yes, I suppose that is some form of partnership.

The Consultation Document from Internal Affairs proposes the following goal... "to promote the advancement of social, environmental, cultural and economic well being"

This is very is laudable, but I suspect it is not by mistake that "economic well-being" is the last goal on that list.

I would argue that economic well being, promotes all the others; especially the environmental goals. Increases in the standard of living creates demand for a higher standard of environmental care.

I note the Greens are keen on a greater range of pricing tools to ensure that schools, for example, "only pay for the service used". Jeannette must have read Richard Prebble's book "I've Been Thinking". Excellent work Jeanette!

The Greens also promote alleviation of the rate burden on people with fixed incomes including superannuitants. Presumably, this is to be achieved by placing the burden on others.

Can I now promote the alleviation of rates on landowners, especially landownwers who own land designated as an SNAs? Can I further promote the rating of Government Departments such as DoC?

DoC enjoys control over one third of New Zealand and yet they have no rates to pay!

ACT New Zealand welcomes the opportunity the present review of the Local Government Act gives for many of these issues to be addressed.

Judging by the consultation document however I suspect the review will most likely give more power to the Minister; more power to politicians and less power to their officials, one of whose jobs is, to keep the politicians aware of the legal limits to their power.

I do wonder how long Joe Ratepayer and Jill Taxpayer can carry on.

New Zealand is not a wealthy country. We cannot afford to diminish opportunities or to drive them away. We need a vigorous productive sector.

It is clear the Government wishes local bodies to take over the running of train services if they so wish. I assume the logic is that if local people want a particular service local people should pay for it.

Economics will go out the window and the justification of social service will dominate decisions. We all pay tax to central government for that public good provision or are we to pay twice?

I used to wonder why the word freedom was used by individuals and political parties in this country of ours. New Zealand is a free country is it not?

Its citizens are free to go about their lawful business; to conduct themselves in an appropriate manner, free from Government sanctions imposed by central and local Government. People should always be free to choose assuming the choice does no harm.

In 1703 the English Courts ruled that no "man shall do anything to damnify their neighbours land with the filth of their privy"

Since that time no body has been free to damnify their neighbour's land or waterways.

Freedoms that prosperous countries guarantee under law are being lost or attenuated in New Zealand.

Yet some people wonder why my party, ACT New Zealand speaks for those who deeply lament the loss of our traditional rights.

I unashamedly seek to control the excesses of those who would use collectivism to attenuate the rights:

of the individual.

constitutional rights

and property rights


The people must always have the ability to limit the excesses of the state by redress in the Courts.

The regulatory nature of the Resource Management Act reduces the right of the individual to have access to remedies under common law.

We desperately need a constitution that protects the rights of the individual against the power of the state.

The Local Government Review must be completed with this requirement constantly in our minds.

ENDS

For more information visit ACT online at http://www.act.org.nz or contact the ACT Parliamentary Office at act@parliament.govt.nz.


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