David Round - Thoughts for our Time - Article 10

The English Civil Wars, which culminated in the beheading of the king on the 30th of January 1649, had been preceded by a long period of widespread discontent and growing public anger. Four years after coming to the throne, Charles had embarked on what his opponents called the ‘Eleven Years Tyranny’; eleven long years when the king did not once summon a parliament, and attempted to survive financially not by Parliamentary grants but by a variety of increasingly resented expedients ~ the sale of monopolies and honours, forced loans ~ and the king also had the ancient right to imprison without cause, which he imposed on those who did not care to lend him money ~ and the rigorous enforcement of ancient prerogatives, many of which, indeed, had long fallen into disuse and been half forgotten. Prominent among such prerogatives was the right to levy ‘Ship Money’. Originally coastal towns had been obliged to provide ships for the navy, but this had long been commuted to a monetary payment which the king could demand in time of war for the defence of the realm. Parliament alone, of course, had the right to impose new taxes and impositions on subjects, but it was perfectly lawful for the king to exercise rights he already possessed.

Ship Money had previously been levied only on coastal towns, and in time of war. Charles, however, attempted to levy it over the whole country and in time of peace. John Hampden, a rich gentleman, was one of those who refused to pay, but in R. v. Hampden, in 1637 ~ also known as The Case of Ship Money ~ the judges decided, by a narrow majority (seven votes to five) in the king’s favour. When the king was eventually forced by circumstances to summon a parliament in 1640, Ship Money was soon abolished; and then after a later king, James II, was overthrown in another revolution in 1688, the Bill of Rights of that year ~ still part of the law of New Zealand ~ declared that the levying of money by the Crown by pretence of prerogative, without parliamentary grant, was illegal.

I cannot help but think of Ship Money, however, when I read of the monstrous charges which regional and district and city councils impose under the Resource Management Act. A glance at a website will rapidly inform us that mere applications for many permits will usually cost four figure sums. If there has to be a hearing, the Canterbury Regional Council will charge $11,500 just for the first day, and a similar but indeterminate sum for every other day. But it is not just hearings. There are swingeing fees for everything; and yet in most cases it is pretty certain that the resource consent applied for is going to be granted. It is not as if the council in question had to consider some genuine environmental question. You want to extend your house in Christchurch? The City Council requires at least $2,000 of you before you even begin, even though you will only be extending your house onto a bit of tatty lawn. You want to put up signage on you own property? $2,500. You are not doing anything environmentally damaging ~ you are paying a large amount of money for nothing more than a rubber stamp on a piece of paper. The idea that the Council has to spend a long time ‘processing’ your application is laughable. Every day councils all over the country are raking in preposterous fees for doing very little.

All these fees are of course legally authorised. There is no scope for a lawsuit a la John Hampden.

We have elected the local councillors and the members of our national legislative assembly who have approved them, and we have the right to vote them out and replace them with other people who will do our bidding.

But really, these fees are just as much arbitrary impositions as Ship Money was. Parliament authorises them only extremely indirectly ~ never gives them a thought, in fact ~ and elected councillors, much of the time, do whatever their unelected servants tell them to. This is, indeed, a good part of the reason for low turnout in local body elections ~ the public’s awareness that there is little point in voting, because the bureaucracy is in charge. As long as fees are not so outrageous as to cause public controversy, council staff can do whatever they like. And so we are back to the age of Charles I.

One might, indeed, say much the same thing of our rates. Just in the last three years the average rates increase around the country was something like 35%. 35%! In three years! This is why there is the entirely reasonable demand for a cap on rates increases. An excellent idea, and yet one which, so far, for whatever reason, most local body politicians do not seem to have taken on board. But even if the battle for a rates cap is eventually won, we can be sure that the bureaucrats behind the scenes will soon sabotage it. New projects will be found, or the presentation of the accounts quite innocently altered, to make it clear that greater expenditure is necessary. What do elected councillors do then? They will have to be firm. But now there are attempts to impose a new draft of conduct on all councillors which would not only forbid any councillors questioning Treaty interpretations and Maori privilege, but would also severely limit the ability of elected councillors to disagree with the staff......

David Round, a sixth generation South Islander and committed conservationist, is an author, a constitutional and Treaty expert, and a former law lecturer at the University of Canterbury.