Anticorruptionnz's Blog

19/05/2010

Do council staff make up the rules themselves?

Filed under: corruption,transparency — anticorruptionnz @ 1:20 am

Open letter to minister of local government and Mayor of Auckland

This is an official information act request for minister of local government and a LGOIMA request   for the Mayor of Auckland

Sirs,

We have a hierarchy of legislation and below legislation  we have  By laws  which are kept in check by  section 155  of the local Government Act 2002

Determination whether bylaw made under this Act is appropriate

(1AA) This section applies to a bylaw only if it is made under this Act.

(1) A local authority must, before commencing the process for making a bylaw, determine whether a bylaw is the most appropriate way of addressing the perceived problem.

(2) If a local authority has determined that a bylaw is the most appropriate way of addressing the perceived problem, it must, before making the bylaw, determine whether the proposed bylaw—

(a) is the most appropriate form of bylaw; and

(b) gives rise to any implications under the New Zealand Bill of Rights Act 1990.

I have by way Of LGOIMA to Auckland city council  requested  that they supply  the  references to any legal requirement to have   swimming pools inspected every  three or so  years they have failed to provide this information    but have had  a reply  in which they quote is section  10 and 11 of the fencing of swimming pools act 1987   .

FENCING OF SWIMMING POOLS ACT 1987

Section 10. Obligation of territorial authorities- Every territorial authority shall take all reasonable steps to ensure that this Act is complied with within its district.

Section 11. Power of entry for territorial authority officers- Without limiting any other powers of any territorial authority, any officer of a territorial authority who has reasonable grounds to believe-

  1. a. that there is on any land within the district of the territorial authority a swimming pool to which the Act applies; and
  2. b. that the pool is not fenced as required by this Act, or any condition imposed under section 6(2) of this Act is not being complied with,-

may at any reasonable time enter on the land and carry out an inspection to determine whether or not there is on the land such a pool that is not fenced as required by this Act, or whether or not the condition is being complied with.

Neither of those sections  provide for the ability of council to schedule inspections , however  section 11 does provide for council to be able to enter  If and when they have  reasonable grounds to believe that the pool does not comply.

To be subjected to  inspections  when there is no reasonable  grounds to suspect that the pool   does not comply with the act  is an abuse of   power and  contrary to  Section 21 of the bill of rights    states  Unreasonable search and seizure

  • Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

I have now  been threatened by Auckland city   that if I do not comply with their demand  to  enter my property they will seek a warrant , I have not been given  any reason as to  why they suspect that my pool does not comply with the   legislation   ,they have inspected it in the past have signed it off as complying  , so why do they think things have changed?

To that end I would ask the  mayor of Auckland  to advise me  why a warrant is being threatened   to force me  to comply with what I believe to be an unlawful order and please provide me with the policies which  give the council staff the  right to make such a threat.

It appears to me  that Auckland city in,   trying to enforce  regular pool inspections  are not  relying on any  law or by law and are actively  ignoring people’s rights by  “making up rules “.

I seek information as to  how councils can seek to enforce something which is not backed with legislation or By law , even to the extent of  subscribing a charge for the services ( being $210  for repeat   inspections ) and therefore request from

  • the Mayor Of Auckland  documents relating to any  By laws which  enable   rules and  enforcement issues  and charges to be made up and  the process by which this is done. And please also  provide    documentary evidence of how these  particular rules regarding swimming pools  were formulated and came about, who was involved in the decision making and when these were passed though council. ( that is the inspection and the charging ) I would also like  documentation in which council   examined  and questioned  the impact of these rules on the  bill of rights  and  any evidence that the bill of rights was considered in formulating  these  rules .
  • The minister   if there are any  provisions which enable  council officers to make up  rules  without the involvement  and  direction of councillors and which do not rely on any statute or by law , I request all documentation which  relates  to any discussion  enquiry , investigation or correspondence which  either prohibits, endorses or facilitates the ability or  council staff to  make up their  own rules and specifically the   rule with regards to inspections  and charging for pool inspections made subsequent to  any unlawful  search procedure. And also any exemption from complying  with the provisions of the bill of rights

For the record I have never denied the council  access to my pool , I have only asked  for them to  show that  they had a right of inspection , they have as yet  not provided any legal  grounds on which they have a right to enter my property for inspection  and until they do , I will not consent to an inspection  .

It appears to me that many people are being bullied into   compliance ( by threats of warrants )  when there is a  have a statutory right to  be secure  against  unreasonable search and council has the ability to enter the property and inspect the  pool in any case if they have reasonable grounds to suspect that the pool does not comply with the legislation .

I would  further  like to know from both the Mayor  and the minister of local government  if this action, which I consider to be  bullying , is sanctioned by them  and what other  matters  which are not set in legislation are being  enforced by council  by coercion  and what they are going to do to ensure that  councils are  not acting outside their  scope of powers.

Regards

Grace Haden

Phone (09) 520 1815
mobile 027 286 8239
visit us at  www.verisure.co.nz

Advertisements

Blog at WordPress.com.

%d bloggers like this: