Publicly Speaking

08 Apr 2008

Reviewing Bylaws

This FYI provides information on reviewing bylaws: when a local authority has to review its bylaws; how it has to carry out its bylaw reviews; and the consequences if bylaw reviews are not completed within the specified timeframes.

This is likely to be of interest to local authorities (and their staff) who are currently reviewing bylaws or have bylaw reviews scheduled to occur shortly.

Under the Local Government Act 2002 (LGA 02) all local authorities are required to review their bylaws within certain set time limits. The exact time limits depend on when each bylaw was made and whether the bylaw was made under the LGA 02 or the Local Government Act 1974 (LGA 74).

To assist, we have prepared an easy-to-follow flow chart which summarises the different review deadlines for each type of bylaw (on the back page).

If a bylaw was made under the LGA 02, then the local authority must review the bylaw no later than five years after the date on which the bylaw was made.

If a bylaw was made under a section in the LGA 74 which is still in force now, then the next date to check is when the bylaw was made.

If the bylaw was made before 1 July 2003, then the local authority must review the bylaw no later  than 1 July 2008.[1] If however the bylaw was made after 1 July 2003, then the local authority must review the  bylaw no later than five years  after  the bylaw was made.[2]

If a bylaw was made under a section in the LGA 74 which is no longer in force, then the bylaw will be revoked on 1 July 2008.[3] The  local authority cannot review or amend this type of bylaw - the bylaw will automatically be revoked on 1 July 2008.

Bylaws which were made under neither the LGA 02 nor the LGA 74 are not subject to these review requirements.

What are the procedures for a bylaw review?

To review a bylaw, the local authority must follow the same procedure as if it was making the bylaw afresh. This means that the local authority must:

1. determine the perceived problem that the bylaw is addressing;
2. determine whether a bylaw is the most appropriate way of addressing the perceived problem;
3. determine whether the proposed bylaw is the most appropriate form of bylaw; and
4. consider whether the proposed bylaw gives rise to any implications under the New Zealand Bill of Rights Act 1990 (NZBORA).[4] (This last requirement is a "show-stopper" as no bylaw can be made which is inconsistent with the NZBORA).

If the local authority follows the steps listed above and concludes that the bylaw is the most appropriate way (and form) of addressing the problem, then the review is complete.[5]

However, the bylaw review procedure does not include the special consultative procedure that follows once the local authority has decided whether or not to amend, replace or revoke the bylaw, or leave the bylaw as is. In other words, the special consultative procedure is not part of the review, and does not have to be completed by the review date. This may assist local authorities in meeting the statutory time limits for reviewing bylaws. (As noted earlier, it is not possible to review those bylaws made under a section of the LGA 74 which is no longer in force as they will be automatically revoked on 1 July 2008. If a local authority wishes to create a new bylaw to replace a bylaw which will be automatically revoked, then it needs to ensure that it has an existing statutory power to do so, and that it follows the special consultative procedure required to make the new bylaw).

What happens if the bylaw review is not completed in time?

All bylaws (except those which will be revoked automatically on 1 July 2008) must be reviewed. The LGA 02 states that if a bylaw is not reviewed within the set time limits (as outlined above) and the bylaw has not been revoked already by the local authority, then the bylaw will be revoked on the date that is two years after the last date on which the bylaw should have been reviewed.[6]

"Revoked" means that the bylaw is no longer valid and cannot be relied upon. This means that if a review has not been completed in time, then two years after the review deadline, the local authority will be unable to rely on that bylaw. (To determine the exact review deadline for a particular bylaw, please refer to the flowchart).

The two year delay before a bylaw is revoked does lead to some interesting considerations.

If, for example, a bylaw was required to be reviewed by 1 July 2008, and the review did not take place, then under the LGA 02, the bylaw will be revoked on 1 July 2010. However, between 1 July 2008 and 1 July 2010, it is arguable that the bylaw continues to apply until 1 July 2010, the date on which it is revoked. This could be useful for local authorities who wish to rely on a bylaw even if the bylaw had not been reviewed within the set time limits.

After the review

If, once the review is finished, the local authority considers that the bylaw should be amended, revoked and/or replaced, then the local authority has to use a special consultative procedure to do so.[7]

As noted above, while the steps for the special consultative procedure (refer ss83 and 86 of the LGA 02) are not part of the review, they are necessary if, after the review, the local authority intends to amend, revoke or replace the bylaw. In some cases, after the review, the local authority may instead elect to leave the bylaw in force and unchanged. In this event, the local authority must still go through the special consultative procedure. The only difference is that the statement of proposal must include:

1. a copy of the bylaw to be continued;
2. reasons for the proposal; and
3. a report of any relevant determinations by the local authority on the steps described at page 2 above.

Summary

All local authorities are required to review bylaws made under the LGA 02 or the LGA 74 within certain set time limits. The exact time limits will depend on when each bylaw was made and whether the bylaw was made under the LGA 02 or the LGA 74. The review process is that described above. Once the review is completed then the local authority can carry out the necessary special consultative procedure to amend, revoke or replace the bylaw, or allow the bylaw to continue. While there are a number of considerations that may arise if a local authority misses a bylaw review time limit, clearly best practice is for local authorities to complete their bylaw reviews within the set time limits.

[1]               Section 158(2)(a) LGA 02

[2]               Section 158(2)(b) LGA 02

[3]               Section 293 LGA 02

[4]               Section 155 LGA 02

[5]               Section 160(3) LGA 02

[6]               Section 160A LGA 02

[7]               Section 160(3) LGA 02

Authors

Padraig McNamara

Partner - Public Sector

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Jonathan Salter

Partner - Public Sector

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Ann Maddox

Senior Associate - Public Sector

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Graeme Palmer

Senior Associate - Public Sector

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Vivienne Wilson

Senior Associate - Public Sector

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Mobile: +64 21 918 423

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