Part 4: Problems and Current Trends
Introduction
401
As well as interpreting and analysing the legal requirements for public
consultation there is the important matter of their practical application.
A legalistic approach to consultation tends to emphasise an "individualistic"
(even adversarial) feature in the process, which is potentially at odds with
its spirit.
402
Since the introduction of these accountability requirements, councils have
been faced with a range of questions:
- How should they interpret the legislation?
- What are the problems and issues of applying it to their activities?
- What is the role of consultation in the management and decision-making process?
403
More recently, there have been increasing concerns that - instead of creating
increased confidence in local government - the special consultative procedure
may be operating in a way that seems to be undermining public confidence,
and contributing to growing disillusionment with local government.
404
In the paragraphs that follow, we discuss some of the problems that are being
experienced with the special consultative procedure and current trends in
applying the legislation. The information used has come from discussions
with local authority staff, chief executives, and elected representatives, as
well as from our observations from dealing with ratepayer groups and
ratepayer enquiries we have received.
Perceived Problems with the Special Consultative Procedure
The Perception That Consultation Is "a sham"
405
The public may develop an opinion that the consultation process carried out
by a local authority was not adequate or appropriate. Possible reasons for
this attitude that have come to our attention include:
- The local authority is unwilling to listen - Although a local authority carried out a consultation process, it had already made up its mind. It was not ready to listen to the views expressed nor change its position regardless of any views put forward. People gave up making submissions to the local authority on the grounds that all their previous submissions had been ignored and so they assume that the same fate awaits any new views they might present.
- Too little time for compiling submissions - Often, the organisations that would be interested in making submissions to a local authority are voluntary and only meet monthly. This is a problem if the consultation period is the minimum one month that is required under the Act.
- Too little time for presenting submissions - Some local authorities have restricted the time available for making oral submissions (e.g. 10 minutes per person or organisation regardless of the number of issues covered by the submissions). Given the complexity and significance of some issues, people felt that this was inadequate to make a suitable submission.
- Lack of feedback about the final decision - Despite the time and effort that some groups or individuals invested in a submission, often they received no information in return about the final decision taken, why it was taken, and any impact their submission had.
- The vested interest of a council and its officers - Some people have voiced a concern that local authorities have learned how to work with the legislation and use it as a means of eliciting citizen support for activities which they intend to undertake anyway. This can be a concern particularly with a smaller authority where the councillors and officers who develop the proposal may well be heavily involved in or responsible for the public consultation process.
- Different expectations - In making submissions, some members of the public assumed that they were taking part in a genuine debate over the issues and that their views would determine the outcome. This has been the case particularly when a local authority proposal attracted a large number of submissions. People tended to see the consultation process as a referendum or survey that the local authority would treat as binding.
- Avoiding making a decision - People are concerned that some local authorities are avoiding making hard decisions by constantly putting off those decisions pending further consultation.
Costs of Consultation
406
Concerns also exist that the heavy emphasis on consultation may be giving
rise to difficulties and costs that were not fully anticipated. Examples that
have come to our attention include:
- Publishing and distribution - Costs are incurred in publishing and sending annual plans and annual reports to a large number of national agencies; e.g. the Department of Conservation and Fish and Game Councils. On matters in which local residents are not necessarily interested, ratepayers are incurring the costs of keeping central government and other agencies "informed".
| Other Formats |
|---|
| One local authority has developed its draft annual plan in a number of different formats in order to try and reach a much wider crosssection of the population. For example, it has developed a "youth's" version, which is specifically designed to attract the interest of and elicit a response from an interest group that has usually been over looked in the annual plan consultation process. |
- Keeping in touch - In smaller local authorities, the councillors and staff feel that they have good contacts with the public and know all the issues in their area. Why then should they go to the expense of carrying out further public consultation? And why waste scarce resources that could be applied to other activities?
- Public meetings - Costs may be incurred in organising public meetings - and paying staff and councillors to attend - when no members of the public turn up or a small number of the same people attend all the meetings. Where is the value in this to ratepayers?
| "Go Where the People Go" |
|---|
The policy of one large city council is to use established organisations to communicate policies with the public rather than organising meetings in the hope that people will turn up.
Established networks that can be used, and usually welcome a "guest speaker", include local service organisations - such as Lions and not-for-profit clubs and societies. |
| Ongoing relationships can also be of value when it comes to notifying that a proposal is to be subject to consultation. A council could keep a register of the organisations that are known to have an interest in certain matters and notify them directly of the proposal. Such a register may initially favour established groups, but over time a reasonably comprehensive register could be compiled listing the co-ordinating bodies in the community that could be used as a channel of communication. These bodies could include ethnic councils, chambers of commerce, councils of social services, and arts and recreation groups. |
Undue Pressure Group Influence
407
Both local authorities and members of the public have expressed concern
that public consultation processes can be dominated by sectional interest
groups. This is sometimes known as the "squeaky wheel" syndrome, where
a minority group is able to get its way at the cost of the "silent majority".
Examples of undue influence that have come to our attention are:
- Reluctance to voice opinions - The dominance of one particular sectional interest group at all public meetings tends to overwhelm other groups and individuals, making them reluctant to express their view.
- Local authority "capture" - The local authority is continually persuaded by persistent representations from a well-organised and/or well-resourced group. However, there can be a tendency to dismiss such a group for being too enthusiastic or persistent rather than give it the appropriate level of attention. Some groups will always be more active than others in being attentive to notifications of consultations, but a balance can be achieved by use of a register as described in the previous example.
| Sectional Interest Groups |
|---|
| Regional councils have a particular problem with public consultation, in that their role is usually more strategic and proposals do not impact directly on the majority of the public. Identifying and developing links with sectional interest groups (e.g. farmers or fishing clubs) is one way of focussing the consultation process to achieve meaningful results - subject to guarding against those groups exerting undue influence as a result. |
- The nature of the process - The facts that the notifications are made through public notice sections in newspapers, and submissions have to be in writing, tend to alienate many individuals or sections of the community. Consequently, some sections of the community have better access than others to the local authority and programmes or resources available.
- The "squeaky wheel syndrome" - Some councillors feel that they are constantly subjected to the same views from the same minority groups or individuals. The special consultative procedure provides an opportunity for determined opponents, or well-organised sectional interest groups, to play a dominant role (at least in terms of timing) as opponents prove able to drag out the decision-making process. But what is the view of the "silent majority"? Should a council take silence as acceptance? How can it get feedback from the wider community?
408
The difficulty is how to treat all submissions on their merits, rather than
give extra weight to a vocal group or dismiss the group as a nuisance.
409
One option would be to improve the information available on the purpose of
consultation and how the process works – making it clear that consultation
is not a referendum but an opportunity for the council to obtain community
views on the potential impact of a proposal. Clarifying the purpose of
consultation would be useful not just for the community – councillors and
council staff also need to fully understand the purpose.
Current Trends
410
Eight years have now elapsed since the special consultative procedure was
introduced. Local authorities have been through a difficult period of learning
that implementing the special consultative procedure is not by itself sufficient
to maintain public confidence in the decision-making process. Aside from the
direct problems (some of which we have highlighted above), implementing
the special consultative procedure and developing consultation practices must
be seen within a wider context. We have observed the following trends over
the eight years.
Increasing Diversity
411
Local authorities find that they are dealing with an increasingly diverse
range of interest groups and communities of interest – as society has become
more pluralistic, multicultural and complex. Associated with this is an
increasing diversity of community expectations, which encourage local
authorities to be involved in a wider range of social and economic activities.
412
Such expectations require local authorities to move outside the confines of
their traditional infrastructure and regulatory core functions. Examples of new
areas of activity include crime and public safety, Treaty of Waitangi, youth,
education, and local health care.
413
Improved consultation and communication practices are seen as the
mechanisms to effectively communicate with diverse communities and to
fairly represent councils’ increasing range of interests. A council is likely to
be more successful in carrying out formal consultation when it:
- provides good quality information;
- actively involves affected groups in the development of policies; and
- is itself clear about the purpose of consultation and makes that purpose clear to others.
Balancing the Budget
414
Communities are increasingly interested in what activities their local
authority intends to undertake with the resources available in the annual
budget, while insisting that rates are kept to a minimum. The focus of
consultation, debate and decision-making is increasingly about making
funds available for social and economic activities that the community has
requested.
415
At the same time, both the community and the local authority are keen to
examine ways to rationalise and make savings in the “traditional” activities
like water and roads and the operating costs of the authority. Councillors are
faced with a number of dilemmas:
- Which projects should be given priority?
- How can those projects be done without over-burdening the ratepayer?
- How can they meet their statutory obligations and provide the increased services requested by the community?
416
Answering those questions points towards an increasing role for dialogue
and consultation between local authorities and their communities, to
determine the range and scope of services that should be available locally
and how they should be funded.
| Social Programmes |
|---|
| We have been told that community expectations of local government have increased as central government has reduced its levels of service or withdrawn from the provision of certain services. In many areas, local government is seen as the only form of government. The issues are local and, generally speaking, are best handled locally. It was felt that the demand by communities for a wider range of “social cohesion” initiatives would continue to grow in the future. |
Need for Resources
417
As communities become more diverse and their expectations of consultation
have increased, it has become apparent that significant skills and resources are
required to develop and carry out appropriate consultation that will provide
useful information. Staff time, councillors’ time, and a sufficient operational
budget are essential components of adequate consultation.
418
In some smaller local authorities even complying with the minimum
requirements of the Act can take up a substantial amount of staff time and
budget.
419
On the other hand, it is questionable whether all interested groups and
individuals within the community have the resources available to be able to
make an effective response to proposals put out for consultation by local
authorities.
Changing Community Expectations
More Frequent and More Detail
420
The community increasingly expects to be consulted about issues that affect
it. Our observation is that people have a growing expectation that they will
be consulted about more issues and at a greater level of detail.
421
Communities now expect to be consulted about a wide range of local
authority activities – either before or after the annual plan consultation
process – in more detail about the specifics of design and implementation.
Typically, development of parks, drainage systems, flood protection schemes,
the location of bus stops, parking arrangements and street tree planting are
now projects that will involve fairly detailed community consultation.
422
Communities are becoming more discerning and are making greater
demands for information. A more active public has implications for local
government in the sense of increasing accountability for decisions.
Different Expectations
423
A number of people have told us that time spent on making clear not only
what the local authority is consulting about but also what consultation
consists of (and its limits), is likely to be repaid in avoiding needless
dissension later.
| “We know best” |
|---|
| We have been told that, historically, the approach among councillors and officers of a particular local authority was one of “we know best”. A number of decisions made with that attitude were now a major headache for the local authority because of constant ratepayer complaints, long discussions at committees about what should be done, and even (in some cases) litigation. The local authority was using significant resources trying to “put the decisions right” after the fact. |
Annual Plan and Strategic Plan Relationship
424
The more direct the effect a proposal or policy will have on a community
or individual, the more likely they are to be interested and become involved.
Local authorities are still struggling to come to terms with how to present strategic plans to the public in a way that is interesting, understandable and
pragmatic. The annual plan is still seen as the primary “working agreement”
or contract between the local authority and the community.
425
Where a strategic plan is successfully operating, the annual plan becomes
a reflection of projects being undertaken each year to achieve the long-term
objectives of the strategic plan. In these circumstances, periodic consultation
to review strategic objectives is more critical than consultation about each
annual plan objective.
426
Improved information on what is being done might help concentrate the
expectations for consultation on the matters affecting what might happen.
There is no point in responding to community pressure to undertake
consultation on a matter on which decisions have already been taken.
| Consultation Goals and Objectives |
|---|
We have observed that, within the annual plan and annual report documents, many local authorities are setting themselves specific goals, objectives and performance measures with regard to public consultation. The following is an example of a goal:
|
Changing Role of Consultation
427
The introduction of legislative requirements to carry out public consultation
was a significant step in the development of accountability and representation
within local government. However, having embraced the changes required by
the legislation, some local authorities have gone further – they have
recognised and capitalised on a range of additional benefits which public
consultation can achieve.
The Act as a Minimum Requirement
428
Local authorities are interested in developing new and better ways to consult
with the community to an extent well beyond the statutory requirements.
The special consultative procedure in section 716A of the Act is increasingly
viewed as the “bottom line” or a “minimum standard”. The practical
experience of people in local government has led to the development of
some principles that might be regarded as forming the basis for best practice.
We expand on these later.
More Time for Consultation
429
Some local authorities have recognised that the compulsory minimum
one-month consultation period is a problem for groups or organisations that
meet on a monthly basis. As a result, those authorities have set a minimum
period of six weeks to allow sufficient time for such groups to become involved.
An Attitude Shift from “requirement” to “investment”
430
The attitude of some local authorities to public consultation has shifted from
just a legal requirement to good management practice – and a better way to
communicate with their community and to represent its interests and
expectations.
Informed Decision-making
431
The most tangible benefit of adequate and appropriate public consultation
is that it will help to produce better decisions. Informed policy decisions are
less likely to need constant review and revision. Projects that are understood
and accepted by the community are also less likely to face pressure for
revision or cancellation. Good consultation can produce better, sustainable
decisions. Getting it right first time can save time and money.
432
The “traditional” approach of placing public notices in newspapers,
holding public meetings, and receiving written and oral submissions has its
shortcomings. It is a method known to reach only a limited number of people
within the community, and elicits a response only from those who are
knowledgeable and confident about the system. By its very nature, it excludes
those who do not read the public notices section of newspapers, and those
who do not want to or cannot provide a written response.
| Good Ideas |
|---|
| “Good ideas come out of consultation.” We have been told of a project to provide a culvert for a stream that ran along the back of a number of properties and was a maintenance problem for the local authority. The residents, who were approached as part of the consultation process, suggested a different solution that would allow them to extend their boundaries down to the stream in return for them carrying out the maintenance. The result was a reduced capital investment cost and reduced long-term maintenance costs. And happy residents, of course! |
Providing a Balanced View
433
In order to develop balanced policy and to make informed decisions, a
council should take into account the widest practicable representation of
community views and concerns. Annual consumer surveys are one way to
achieve this. While not always ideal, an increasing number of local authorities
are carrying out such surveys to assess what the community thinks of their
performance.
Gaining Experience and Knowledge
434
A local authority can set up a network of representatives – groups and
individuals – throughout the community. The network provides the means
for two-way communication between councillors, council staff, and the
community – to constantly exchange information, opinions and options
about a wide range of issues.
435
Such a working network effectively extends the pool of experience and
knowledge that the local authority can draw upon to identify issues and
concerns, develop policy, and deliver services. A successful dialogue with the
community can reduce the need for (and costs associated with) major or
haphazard consultation exercises, while obtaining significant relevant and
useful information for the decision-making process.
Testing Assumptions
436
In some local authorities, particularly the smaller ones, councillors and
officers can feel that they are sufficiently “in touch with the community” or
that “there are no issues”. We agree that the nature of the special consultative
procedure, particularly when applied to the annual plan, is such that
proposals that are put forward for consultation will often have a certain
inevitability about them. As a result, the local authority may see consultation
as an unnecessary expense or the public might see it as “a sham”.
437
In order to make sure that any assumptions are correct, and that issues are not “hidden” within the community, some local authorities employ independent
facilitators to conduct periodic “community forums”. These can be a regular
way to test, independently, the assumptions behind a local authority’s
decision-making.
438
Another advantage of using an independent facilitator is that it may avoid
allegations of bias, where otherwise the council officer may be required both
to serve the decision maker and to conduct the consultation on behalf of the
decision maker.