Summary
On 22 April 2022, the Minister of Local Government, Nanaia Mahuta announced the reappointment of four commissioners to the Tauranga City Council. The initial 2021 Commission was a response to the turbulent history of the Tauranga City Council where independent findings found significant governance issues among elected representatives. However, this re-appointment has attracted controversy, due to its affront to democratic principles.
Minister Mahuta’s announcement means that Tauranga’s local body elections which were due to be held in October this year, will be postponed to July 2024. This decision has led to a petition by Tauranga Ratepayers’ Alliance and has been deemed as undemocratic by prominent locals such as Simon Bridges, Andrew Hollis and Greg Brownless.
The need for Commissioners
Commissioners form a Commission and have expertise in relevant skills needed to efficiently run local government. The Local Government Act 2002 (“the Act”) gives the Minister power to appoint a Commission when significant problems arise from a local authority.
Per s 258F of the Act, a Minister can use these powers if they, on reasonable grounds, believe that there is -
(i) a significant problem relating to the local authority that
(a) is impairing, or likely to impair, the good local government of the local authority’s district or region; or
(b) is endangering, or likely to endanger, the public health or safety of the people within the local authority’s district or region.
Additionally, s 258G of the Act notes that the Minister must appoint members of a Commission by notice in writing. The notice must include information regarding the problem which has led to the Commission, the limitations on the extent of its authority, and the start and end dates of both the member’s appointment and the Commission’s term.
The initial appointment of Commissioners in Tauranga City Council met the legal requirements. In 2020, reports of a deeply divided Council emerged. The situation worsened after the sudden resignation of then mayor, Tenby Powell. Powell urged for Commissioners after referring to the elected members as incompetent, “small thinkers,” “petty politicians” who were in desperate need of “progressive thinking”.
Similarly, in 2012, Commissioners were appointed to the Kaipara District Council due to “serious governance and financial challenges”that the then Councillors were unable to resolve. Likewise, the Commissioners were reappointed in 2015 for an additional year by then Associate Minister of Local Government, Louise Upston.
However, the legal framework regards the appointment of a Commission as a final resort. Section 258F(1) (b) – (d) of the Act, states that Ministers must believe on reasonable grounds that a specific event occurred. Namely; the local authority or Crown agents are unable to resolve the problem, or that the Minister has received written request from either the local authority or a Ministerial body currently or previously appointed to the local authority.
Power to postpone general elections
Ministers have the power to postpone a general election when appointing Commissions (s 258I). This can be done at the same time as notice is given for the appointment of a Commission, or during the Commission, if the Commission’s term is more than 120 days after the date of that election.
If a Minister postpones the general election they are obliged to give notice of the postponement, and before the term of the Commission ends, they must call a general election of the local authority by notice in the Gazette and give public notice of the calling of the election.
Ending a Commission
According to the legal requirements, a Commissioner’s term ends on the end date prescribed in the Minister’s notice of writing. Consequently,the local authority remains in office and is unable to act until the Commission term ends, or the Commission members vacate office. Members of the local authorities are only able to act alongside Commissioners if appointed by the Commission. Therefore, the re-integration of democratically elected officials is not within the control of Tauranga residents.
The affront to democracy appears to be legally permitted, as Minister Mahuta used her discretion to renew the appointment of the Commission. Due to the Act’s provisions, the only possibility of removal of the Commissioners before 2024, is by application of judicial review. Judicial review has the power of removing Commissioners if found that Minister Mahuta failed to lawfully follow the proper decision-making process in her choice to extend the Commission.
If you would like further information on local government commissions, please contact Director Brigitte Morten.
