JUST HOW MUCH DEMOCRACY is really left in our political system? The young Green Party city councillor from Dunedin, Aaron Hawkins, is wondering. In his latest posting, “What If Our Government Tried to Guide Democracy Instead of Dictate to It?”, Aaron describes what he calls “The Activist’s Dilemma”:
“If someone had told me sooner, I may have been more sympathetic towards the silence of some who have come before me. If a bylaw (that is, a local rule) is up for review, expressing a public opinion for or against any proposal is judged to give you a greater interest than the general public. This is seen as a conflict of interest, and disqualifies you from being on the panel hearing and reporting on public submissions. This can mean that the people most able to work on an issue could rule themselves out of doing so, to the detriment of the policy making perspective.”
Just think about that for a moment.
If someone is elected to a local authority on the strength of the campaign they waged against the effects of a particular by-law – or proposed by-law – then they are immediately disqualified from considering and/or voting on that by-law.
Now, Aaron describes this situation as a “conflict of interest”, but the more accurate term is “bias”.
Under New Zealand law conflicts of interest almost always involve money. No one with a “pecuniary interest” in the outcome of a decision is permitted to play any formal role in making it.
The law relating to bias is slightly different. According to the Office of the Auditor General (OAG):
“The common law requires that public decision-making be procedurally fair. In particular, conflicts of interest are usually dealt with under the rule about bias. The law about bias exists to ensure that people with the power to make decisions affecting the rights and obligations of others carry out their duties fairly and free from bias. It is summed up in the saying ‘no one may be judge in their own cause’.”
To reassure the public that they will always be given a fair hearing, the OAG goes on to say that:
“The law about bias has been developed to achieve two main goals. First, it ensures that the best decision is made based on relevant information and arguments, not ulterior motives or prejudices. Secondly, it ensures that people affected by, or interested in, a decision have trust and confidence in the process – meaning they are more likely to accept a decision once it is made.”
The test question, derived from case law, for any elected member of a local authority is:
Would a fair-minded observer reasonably think that a member of the decision-making body might not bring an impartial mind to the decision, in the sense that he or she might unfairly regard with favour (or disfavour) the case of a party?
Once again, this bears a moment’s evaluation.
Let’s apply the OAG’s thinking to a situation akin to that which divided Aaron’s city, Dunedin, back in the early 1980s.
A large aluminium smelter at the entrance to Otago Harbour was one of the key industrial projects included in Sir Robert Muldoon’s infamous “Think Big” economic development programme. The proposed site for this second smelter was an extensive salt-marsh adjoining the tiny holiday settlement of Aramoana. The smelter was to be powered by a massive hydro-electric dam on the Clutha River at Clyde.
Not surprisingly, the National Government’s proposal gave rise to a large, confident and highly creative “Save Aramoana” campaign.
Now, just imagine that the present Economic Development Minister, Steven Joyce, has convinced his colleagues to resurrect the second smelter project. Once again a large and even more vociferous “Save Aramoana” campaign is launched to save the salt marsh (as well as the site of the tragic 1990 Aramoana Massacre).
With the local government elections only months away a colourful slate of “Save Aramoana” candidates is chosen. To the delight of those Dunedin residents opposing a second smelter, the “Save Aramoana” slate secures a majority on the DCC.
The huge multi-national corporation behind the smelter proposal is not in the least bit dismayed. Its high-powered legal team reassures them at if any of the “Save Aramoana” city councillors attempt to participate in the planning and consent procedures pertaining to the project; or, if the DCC as a whole attempts to thwart the Government’s plans; then they will immediate seek a judicial review of these decisions on the grounds of bias.
The court will be told that the councillors involved had made statements and conducted themselves in ways that indicated they had predetermined the matter of a second smelter before hearing all the relevant information (that is, they had “closed” minds). They will further claim that the “biased” councillors were all deeply involved in, and had close relationships with individuals belonging to, the “Save Aramoana” campaign.
Whether or not the New Zealand judiciary came down in favour of such a claim would largely depend on how committed the latter is to the whole idea of democratic representation, and to the duty of elected representatives to do their outmost to fulfil their electors’ mandate.
The OAG’s advice to local authority representatives states:
“You are not expected to approach matters without any existing opinions at all. Elected members take office with publicly stated views on a wide variety of policy issues. In local authority decision-making, the courts therefore acknowledge that a degree of local knowledge and pre-existing views – especially where a matter involves wide public policy issues – is both inevitable and desirable.”
“The critical factor is that you remain, and are seen to remain, open to persuasion. That is, that you do not express views in a way that implies an unwillingness to listen fairly to new arguments or to give the matter further consideration when it comes before the authority.”
The consequences of these rules relating to bias are distressingly clear, and Aaron Hawkins sums them up very neatly:
“The dilemma is this: Can you do more to advance the concerns of your constituents by making a public song and dance for them, or by helping as best you can to get positive policy outcomes? There will no doubt be occasions when the former may be worth the gamble. If making a scene triggers broader public support, it might pay off, but if people and/or the press ignore you, it may well be in vain. If you get the boot from the process, your colleagues may ask the questions you would anyway, but there’s no guarantee.”
If the New Zealand courts interpret the bias question conservatively, then one must seriously question whether it will any longer make sense to organise politically, seek a mandate, and attempt to implement the programme the voters have supported. If the representatives they elect are not entitled to stand firm on the issues they were elected to resolve, then the law – at least at the level of local government – is requiring citizens to completely depoliticise the processes of local governance.
The choice seems to be: speak out and organise on an issue – and be excluded from all decision-making processes related to your mandate. Or: give the electors absolutely no idea what you stand for or wish to achieve – and enjoy full decision-making powers.
Whatever form of government that is, it has nothing to do with democracy.
And people wonder why fewer and fewer New Zealanders bother to vote.