10.4.2 General decision making requirements of the Local Government Act 2002 and Local Government (Auckland Council) Act 2009

 

1. The Local Government Act 2002 and the Local Government (Auckland Council) Act 2009 set out substantive decision-making principles and requirements that apply to council decisions.  

2. Specific legislative requirements under which decisions are made will make these general principles less important. For example, decisions under the Resource Management Act do not generally refer to the Local Government Act 2002 and the Local Government (Auckland Council) Act 2009, as the Resource Management Act contains its own comprehensive set of decision-making requirements.  However, all council decision-makers should be aware of Local Government Act principles and how they might apply to their decisions.

3. General legislative requirements

   • The basic procedural decision-making requirements in the Local Government Act 2002 and Local Government (Auckland Council) Act 2009 are: 

     i) to identify all reasonably practicable options for achieving the decision’s purpose and assess the advantages and disadvantages [1]
     ii) to consider the views and preferences of people likely to be affected by, or have an interest in, the decision (this does not require the council to iii) undertake consultation) [2]
     ii) to conduct any consultation in accordance with the principles outlined in the legislation [3]
     iv) to identify any significant inconsistency between the decision and any of the council’s policies or plans, and to provide reasons for the inconsistency [4]
     v) to provide opportunities for Māori to contribute to decision-making, including providing relevant information for that purpose [5]
     vi) for the governing body to consider the views and preferences of local boards if the decision may affect their responsibilities or operation or the well-being of their communities [6]
     vii) for local boards to cooperate with each other when the interests of their areas are better served by doing so [7].

   • Decision-makers can decide how to fulfil these requirements [8]. The more significant a decision is, the stricter the compliance should be.

4. Consultation and engagement with communities.

   • Public consultation and engagement are key parts of the council’s decision-making processes. Where there are no specific legislative requirements, the council can decide what level of consultation is appropriate [9].  

     i) the extent to which the council already knows the current views and preferences of the people who may have an interest in the decision
     ii) the nature and significance of the decision
     iii) whether there are good reasons for withholding information from the public
     iv) the costs and benefits of any consultation process or procedure.

   • The council’s Significance and Engagement Policy sets out how and when communities can expect to be engaged. Decision-makers should also consider [10]: 

     i) the extent to which the council already knows the current views and preferences of the people who may have an interest in the decision
     ii) the nature and significance of the decision
     iii) whether there are good reasons for withholding information from the public
     iv) the costs and benefits of any consultation process or procedure.

   • Consultation should be undertaken in accordance with the principles in the Local Government Act legislation [11]. These are that: 

     i) people affected by, or interested in, a decision will be provided with clear information; and that they are encouraged to – and are given reasonable opportunity to – present their views to the council in a way that is appropriate to them
     ii) the council will receive and consider their views with an open mind
     iii) people who present their views to the council will have access to a clear record of, and reasons for, the decisions
     iv) the council must have processes in place to consult with Māori.

   • For some types of significant decisions (e.g. bylaws and the long-term plan), the council is required to use the special consultative procedure set out in the Local Government Act 2002 [12]. Where this applies, the special consultative procedure overrides the general requirements for consultation [13].

5.  Decision-making duties to Māori

   • The Local Government Act 2002 and Local Government (Auckland Council) Act 2009 gives the council general decision-making  responsibilities relating to Māori and the Independent Māori Statutory Board (IMSB). These duties include: 

     i) providing opportunities for Māori to contribute to its decision-making processes [14] 
     ii) supporting Māori in contributing to the council’s decision-making processes [15] 
     iii) consulting the IMSB on matters affecting mana whenua groups and mataawaka of Tāmaki Makaurau, ensuring their input is reflected in the council’s strategies, policies, and plans, and on other matters [16] (see Section 7.3.3: Key Programmes)
     iv) providing information to Māori and the IMSB for the purpose of allowing them to contribute to the council’s decision-making processes [17]
     v) taking into account the relationship of Māori with their ancestral land, water, sites, waahi tapu, valued flora and fauna and other taonga [18]

   • In practice, the council needs to ensure all decisions should consider the impacts on Māori.

 

 

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