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Thursday, 22 April 2010

SIR HUMPHREY RULES THE ROAD--OK?

The Waiheke Transport Forum is a community body set up to advise the Waiheke Community Board on transport matters. At the April meeting, during yet another vigorous debate on The Esplanade (whether it should be closed to all but emergency traffic and reserved for pedestrians, cyclists and equestrians), a council officer became so angry that he blurted out the blunt truth.

That Yes Minister television series, in which the bureaucrat Sir Humphrey rules, with democracy always a distant second (unlike public servants, who really do serve the people faithfully and well), is a penetrating portrayal of real life. But it is still a shock to be bluntly told the same thing out in the real world. The Sir Humphreys are not normally purveyors of the crystal-clear truth.

The issue of The Esplanade issue is controversial, so the Transport Forum at its previous meeting in March had spent a long time thrashing out the wording of a survey to be sent out to the community so that the Community Board would know what most Waihekeans want. Arriving at the final text took a long time because there are many different views, but in the end we saw the miracle of a unanimous vote of approval. On Waiheke!

At the next meeting of the Community Board that wording was endorsed.

Then Sir Humphrey struck. Council officers wanted changes and additions; they wanted what they consider to be a survey that obeys what they have decided is the Auckland City Council standard for surveys (which of course includes irrelevant stuff with which they can fine-tune the vote--i.e., our votes are weighed on their scales instead of just being counted; then they can interpret the vote to their liking). But they were bluntly told to accept our democratic will.

That is why The Esplanade Survey was back Transport Forum's agenda in April, and why the council officer, the traffic engineer, ultimately blew a fuse when he was told that that was the wording that had been democratically agreed to, so that is to be the wording that goes out to the community.

He bluntly told us that if that was to be the wording the survey would NOT be going out. He also bluntly told us that the decision about The Esplanade would not be made by us. It would be made by 'the officer with the delegation--Andrew Allen' (the senior traffic engineer over in the city, and his boss).

Section 10 of the Local Government Act 2002, which is very the heart of local-government law in New Zealand, says 'The purpose of local government is (a) to enable democratic local decision-making and action by, and on behalf of, communities; and (b) to promote the social, economic, environmental and cultural well-being of communities in the present and for the future.'

All the Sir Humphreys should read that, learn that, get that nailed into their skulls and predicate every decision on that--on that and nothing else. (Copy it out and put it on the wall by your phone, and quote it every time you are getting the run-around from a Sir Humphrey--tell him plainly that his job exists first and foremost to fulfil that law.)

But what they actually do is to be Sir Humphreys. In that they are supported by a professional trade association called the Society of Local Government Managers (www.solgm.org.nz), a kind of Protect Sir Humphrey Society. Its view of how things should be run in local government is officer-centered, and is spelt out in black and white in the 2010 version of the diary it issued to bods in local government.

The preface, jointly written by SOLGM and the law-firm Simpson Grierson (which happens also to be Auckland City Council's external legal adviser), quotes section 12 of the Local Government Act 2002 virtually word for word--but then it tacks on an extra bit: ''For the purpose of carrying out its role a local authority has full capacity to carry on or undertake any activity or business, do any act, or enter into any transaction, and for these purposes has full rights, power and privileges (referred to as the power of general competence)'.

That bit in brackets is not part of the law, it is only an antiquated lawyers' paraphrase of it, but as you can see it means something very different in everyday speech. And if it is taken in isolation, any officers bent on getting their own way will arrive at a very different conclusion than if they were aiming 'to enable local democratic decision-making and action'.

It should be noted that 'local authority' in section 12 means the elected council, not the employed one, because the employed are legally defined as employed by the local authority--which is a fact usually denied by the CEO, who claims, contrary to law, that he employs them, and that he is the only employee of the council.

The phrase 'general competence' is deep in council officers' mythology; they are led to believe that it is in the Local Government Act 2002. It is not. Nowhere.

Using it as it is understood in everyday speech is a gross misinterpretation of section 12, which is just saying that councils have the legal power to make legal decisions, which is obviously needed, otherwise their decisions would neither be valid nor enforceable. But to paraphrase section 12 in a way which in effect says that council officers have the power to make decisions regardless of what the people want, and that they somehow have a superior level of competence, is somewhere between blatant arrogance and bureaucratic dictatorship.

Thus does Sir Humphrey, as always, run things by the mythical laws in his head instead of the ones printed in the lawbooks. The Esplanade, and everything else on Waiheke, have to take the consequences. OK?