10.6.3 Bylaws

 

1. A number of statutes empower the council to make bylaws. The most significant is the Local Government Act 2002. Others include the:

   • Dog Control Act 1996

   • Freedom Camping Act 2011

   • Health Act 1956

   • Litter Act 1979

   • Prostitution Reform Act 2003

   • Reserves Act 1977

   • Sale and Supply of Alcohol Act 2012

   • Waste Minimisation Act 2008

   • In addition, local boards can propose bylaws to the governing body.

   • All applicable bylaws are viewable on the council's website, search for 'bylaws'.

2. Process for making a bylaw under the Local Government Act The process for making a bylaw under the Local Government Act 2002 requires the council to take the following steps.

   • Determine whether a bylaw is the most appropriate way of addressing the perceived problem [1]. 

     i) This should be discussed in a council policy paper that identifies the problem, the range of existing regulatory tools available and their limitations. ii) The relative merits of any other non-regulatory options should also be considered.

   • If a bylaw is the most appropriate solution, create a draft [2].

     i) This involves considering the different forms a bylaw could take (e.g. standalone, amendment to existing, consolidation of other bylaws), the scope of the bylaw, and the powers it confers on the council. ii) It is important to confirm the proposed bylaw is within the scope of the empowering provisions that allow the council to make the bylaw.

   • Assess whether the draft bylaw gives rise to any implications under the New Zealand Bill of Rights Act 1990 [3]. A bylaw must not be inconsistent with the New Zealand Bill of Rights Act.

   • Determine which consultation process must be used, based on the council’s Significance and Engagement Policy [4]. 

     i) The special consultative procedure under the Local Government Act 2002 must be used if the bylaw concerns a matter identified in the policy as being of significant interest, or if the council considers the bylaw is likely to have a significant impact on the public. ii) In  all other cases, the council must consult in a manner that gives effect to the requirements of section 82 of the LGA 2002. This means that section 82A of that Act applies and must be adhered to.

   • Prepare and adopt a statement of proposal (for a special consultative procedure [5] or document meeting the requirements of section 82A(2) of the LGA02 (for a section 82A process). 

     i) This document will set out the relevant policy matters and include a draft of the proposed bylaw.
     ii) If necessary to enable public understanding, the council must also adopt a summary of the information in the statement of proposal [6].
     iii) The governing body has (in its terms of reference) retained the power to approve a draft bylaw prior to community consultation. 

   • Undertake the consultation process by publishing the material adopted in (v) above and explaining how people may present their views to the council [7]. 

   i) There is a minimum 30 day period for views to be presented if the special consultative procedure is used. The council must allow for people to present their views by way of spoken (or sign language) interaction with decision-makers, e.g. holding a hearing or have your say event.
   ii) If a section 82A procedure is being used, people should be given a reasonable opportunity to present their views. 

3. Consider the views of submitters in making a decision on whether to adopt the proposed bylaw. Any amendments must be within scope, i.e. within the reasonable contemplation of a person reading the original statement of proposal. If the governing body has delegated responsibility to a panel to hear submitters’ views, it must make a recommendation to the governing body. Only the governing body can make or amend a bylaw.

4. Provide a public notice with the date the bylaw will become operative and where copies are available [8].

5. Process for making a bylaw under other legislation

   • The process above may differ if a bylaw is being made under another enactment.

   • Some Acts require bylaws to be made as if they were created under the Local Government Act 2002 (e.g. the Health Act, the Dog Control Act and the Waste Minimisation Act). Some have modified procedures (e.g. the Freedom Camping Act and Prostitution Reform Act).  Some provide no specified procedures at all (Litter Act); the process for these should generally conform with the Local Government Act 2002. 

   • Care must be taken to ensure all relevant procedural aspects are followed if the council proposes making a bylaw under an act other than the Local Government Act.

 

 

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