The Activist’s Dilemma: Overcoming the Bias Against Local Democracy.

By   /   November 29, 2013  /   4 Comments

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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.

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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.”

But:

“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.

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4 Comments

  1. Indeed, Chris.

    And how strange that the trest of “bias” was not applied to Roger Douglas and his cronies from 1984-89, when he applied his agenda to the country.

    Where was his ““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.”” then?

    And what about the thousands of submissions made against asset sales; weakening of labour laws; mining in conservation lands – how “unbiased” were National MPs on select committees?

    Or does this test of “bias” apply only to elected representatives from the centre-left?

    One wonders what is the point of electing representatives based on certain political perspectives and agendas if, afterwards, they are effectively neutered by this farcical situation.

    • Jenny Kirk says:

      Sometimes Frank, you can get around the issue by laying out arguments for both sides, and saying why you prefer one side rather than the other.
      This is what is in the OAG’s advice quoted above –

      “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.” –

      However, this is very difficult to do when it comes to resource consent approval/decline issues – because legal intricacies can trip even the most careful person when the matter goes to appeal.

      As you say, the situation is farcical and a denial of local peoples’ rights via technically legalistic bullsh– .

  2. Flip says:

    In a democracy where elected people make decisions you cannot avoid bias. What issues you campaign on should not exclude you from the decision making process around that issue. In fact just the opposite should be the case as they are likely to have the most knowledge and experience. Exclusion should be on the basis of personal benefit not bias.

    You’d fundamentally need to change who is responsible for the decisions to a more judicial process to eliminate/reduce bias. The other alternative is some form of open informed participatory direct democracy.

    I do think there is a legal challenge that can be made of bias provided elected representative conducts themselves fairly and listens to a balance of arguments and can soundly justify the decision.

    The political problem will come should a representative be persuaded to change their view from what they campaigned on. This must be a real possibility. It is less likely if people are involved who know about the issue but it must be a possibility.

    A change of view would need to be explained well to society and I think the only option in a representational system with integrity would be to disqualified themselves from the decision.

    Obviously those who have not campaigned on the issue have less of a problem but they are less well informed. I supposed that means we’ll have more ignorant politicians or they should have vague campaign promises which enable them to make decisions in either direction.

  3. Marc says:

    Quote from Chris’ post:

    “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.”

    Now surely, the law, the courts and the OAG cannot be seeing this as having to be applied that strictly and rigidly as some here may think!

    “Procedural fairness and the principles “nemo iudex in causa sua” and “audi alteram partem” apply for hearing and reporting on submissions, and unless there is a direct personal interest of a “pecuniary” kind, political interest cannot bar a person from sitting on a panel.

    This happens all the time with select committees at Parliament, and surely they are made up of MPs from the main and not so main parties, who all have clear personal views on matters before them. Nevertheless that is all legal and acceptable under law, and has not been challenged, has it?

    I personally would though dare to challenge the way select committees are being run these days, as the government of the day tends to simply “abuse” such committee hearings and reports as mere “theatre”, because they hardly ever abide by the report findings. Well, they do to a degree of course, because the majority in Parliament usually also has the majority in committees, so the reports state dissenting views as supporting views. But in the end, no matter whether the vast majority of submissions are against a new law or law change, the government will tend to wipe that aside and still go ahead and pass laws as it sees fit with its majority. This happened with the Mixed Ownership law, same as the recent social security welfare law changes.

    The fact that there is no second chamber gives the democratic majority in Parliament virtually absolute powers, as the select committee as a “check and balance” institution is not taken seriously. So Aaron Hawkins and others should in view of that not have to worry, should they?

    What really worries me is how government departments do not strictly abide by natural justice and procedural fairness. One example is the Ministry of Social Development. Under the Social Security Act 1964 and section 10B subsections (3) and (4) the “Chief Executive” (usually a staff member of MSD or WINZ acting on that one’s behalf) appoints what is called a ‘Medical Board’ to hear appeals by beneficiaries who object to decisions made on health grounds and on grounds relating to work capability.

    http://www.legislation.govt.nz/act/public/1964/0136/latest/DLM5487423.html

    Now I have had a bit of experience with this stuff, and the reality is, it is an Appeals Coordinator in the relevant MSD Regional Office who appoints such a supposedly “independent” panel. The ones appointed are usually from a pool of their selected “designated doctors”, who usually make up at least 2, sometimes even 3 of the panel hearing an appeal by a beneficiary.

    Important to know is, that since 2008 those “designated doctors” have also been trained, mentored and are being liaised with regularly WINZ’s Principal Health Advisor David Bratt, or some of his subordinate “advisors”. So they are instructed along which lines to make decisions. There is no right of appeal after a decision is made by such a board! Only a judicial review, which I know no beneficiary ever having seen through and succeeded with (given the difficulty to get legal aid and finding a lawyer for such “civil” cases), is a means of challenging an MAB decision.

    Also, would MSD and their main department WINZ not have something like a “pecuniary” interest in the decision, as it could save the costs to have someone denied a higher paid benefit like Supported Living (on health grounds)? I am sure they have.

    This is going on every week, and has been for years, and many affected have felt “short changed” or treated unfairly.

    Now where is the “natural justice” and “procedural fairness” in that, I ask? The law works for those with the stronger arm and more financial and personnel resources, I am afraid, and the same applies for government. Sadly we have the wrong “activists” for big business in charge, and they get away with it. So Aaron should not worry too much, I say.

    As for the above re MSD and Medical Appeal Boards, more is found here:
    http://accforum.org/forums/index.php?/topic/15463-designated-doctors-%e2%80%93-used-by-work-and-income-some-also-used-by-acc/


 
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