Local Government Official Information and Meetings Amendment Bill

Local Government Official Information and Meetings Amendment Bill

Government Bill

202—1

Explanatory note

General policy statement

The broad policy and purpose of the Bill is to provide clarity and certainty for local authorities on provisions of the Local Government Official Information and Meetings Act 1987 (the principal Act).

The policy proposals include—

  • changes to improve natural hazard information provided in land information memoranda (LIMs); and

  • aligning the withholding and certification processes with the Official Information Act 1982.

Natural hazard disclosure in land information memoranda

LIMs under the principal Act are the main source of property information for the public and are a key tool for communicating natural hazard information to buyers so they can make informed decisions.

The provision of better natural hazard information (including about the impacts of climate change) in LIMs is an essential step to help property buyers understand natural hazard risk and make informed decisions when deciding whether to purchase a property. Improving natural hazard information in LIMs is a key action under New Zealand’s first National Adaptation Plan.

However, there are challenges with how LIMs currently provide natural hazard information. LIMs may lack key natural hazard content, they are not effective at communicating natural hazard information, and legal liability issues can inhibit full disclosure of natural hazard information by local authorities.

This Bill amends the principal Act to introduce—

  • clearer requirements to provide natural hazard information in a LIM (including the impacts of climate change):

  • a statutory responsibility for regional councils to provide natural hazard information (including about the impacts of climate change) and support to territorial authorities:

  • a specific purpose for providing natural hazard information:

  • provisions to develop regulations for providing natural hazard information in LIMs:

  • limitation of legal liability for local authorities when disclosing natural hazard information in good faith.

These amendments are aimed at achieving the key objectives of—

  • ensuring that LIMs provide natural hazard information to property buyers that is clear, concise, nationally consistent in its presentation, and easily understood:

  • providing certainty for local authorities about sharing natural hazard information in LIMs and reducing exposure to legal liability.

The proposed limitation of local authority liability will incentivise greater sharing of natural hazard information, while preserving the ability to bring legal action against local authorities where natural hazard information is known but has not been provided. This will provide local authorities with a similar level of protection to that they currently have when sharing other official information under the principal Act. Affected parties may still bring complaints to the Ombudsman and apply for judicial review.

The new statutory responsibility for regional councils will ensure that regionally held natural hazard information is included in the LIM. Regional councils often hold significant natural hazard information and have access to technical expertise. This new responsibility will formalise existing information sharing between regional councils and territorial authorities. Territorial authorities will retain the sole responsibility for processing LIM applications.

Aligning the withholding and certification processes with the Official Information Act 1982

Like the Official Information Act 1982 (the OIA), the principal Act enables official information held by local authorities to be available for or protected from public release. Unlike the OIA, the principal Act does not provide conclusive grounds for withholding information—

  • that would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

  • that is entrusted to the Government of New Zealand from another Government or international organisation.

The principal Act also does not allow the Prime Minister to certify that certain information should not be released if it would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand.

The lack of these conclusive grounds for withholding information may inhibit the ability of local authorities to seek or receive advice on security risks and increase the risk of disclosure of information that could prejudice New Zealand’s security or defence or the international relations of the Government of New Zealand.

The Bill amends the principal Act to align it with the equivalent provisions in the OIA and improve management of national security risks.

Departmental disclosure statement

The Department of Internal Affairs is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=bill&subtype=government&year=2022&no=202

Regulatory impact statement

The Department of Internal Affairs produced regulatory impact statements on 2 November 2021 and 16 June 2022 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Copies of these regulatory impact statements can be found at—

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. Part 1, which makes amendments relating to land information memoranda, comes into force on a date set by Order in Council or 1 January 2025, whichever is earlier. Part 2, which makes amendments relating to official information, comes into force on the day after Royal assent.

Clause 3 provides that the Bill amends the Local Government Official Information and Meetings Act 1987 (the principal Act).

Part 1Amendments relating to land information memoranda

Clause 4 amends the interpretation section of the principal Act.

Clause 5 amends the purpose section of the principal Act to include a new purpose of providing for the issuing of land information memoranda (LIMs).

Clause 6 inserts a new Part heading that relates to LIMs.

Clause 7 amends section 44A of the principal Act. That section is about when a LIM needs to be issued and what information it needs to include. As amended, a LIM will need to include information about natural hazards in addition to information about other special features or characteristics of the land concerned.

Clause 8 inserts new sections 44B to 44D as follows:

  • new section 44B(1) sets out that the purpose of new section 44B is to ensure that LIMs contain understandable information about natural hazards and any impacts of climate change that exacerbate natural hazards in relation to land:

  • new section 44B sets out the information about these issues that a territorial authority must include in a LIM. A LIM must include information, to the extent that it is known to the authority, about natural hazards and any relevant impacts of climate change. This must include information about hazards and impacts that currently affect the land concerned, potential hazards and impacts (if the authority is satisfied that there is a reasonable possibility that they may affect the land concerned), and the cumulative or combined effects on the land concerned of those hazards and impacts. Regulations may require that additional information be included to make the information in the LIM more understandable, or require that the information be summarised and presented in a certain way:

  • new section 44C provides for a new obligation for a regional council to share information, to the extent that it is known to the council, about natural hazards and any relevant impacts of climate change with a territorial authority within or partly within its region. This must include information about hazards and impacts that currently affect land in the region, potential hazards and impacts (if the council is satisfied that there is a reasonable possibility that they may affect land in the region), and the cumulative or combined effects on land in the region of those hazards and impacts. Regulations may require that additional information be included to make the information provided to the territorial authority more understandable, or require that the information be summarised and presented in a certain way:

  • new section 44D provides that territorial authorities and regional councils are not liable in civil or criminal proceedings for making information available in good faith about a natural hazard or any relevant impacts of climate change either in a LIM (in the case of a territorial authority) or to a territorial authority (in the case of a regional council).

Clause 9 amends section 55 of the principal Act to provide that the Minister may only recommend that regulations be made for the purposes of new Part 6A if the Minister has consulted the persons or organisations that the Minister considers appropriate to consult.

Clause 10 removes the definition of territorial authorities from Schedule 1 of the principal Act because a territorial authority is now defined in section 2(1) of the principal Act.

Part 2Amendments relating to official information

The effect of the amendments in clauses 11 and 12 is to align the principal Act with equivalent provisions in the Official Information Act 1982.

Clause 11 creates new conclusive reasons for a local authority to withhold official information. An authority may withhold the information if releasing it would be likely to prejudice New Zealand’s security, defence, or international relations, or the entrusting of information to the New Zealand Government by another Government or an international organisation on a confidential basis.

Clause 12 replaces section 31 of the principal Act. Under section 31, an Ombudsman can recommend that information be made available if they have investigated a decision not to release it. However, they may not make that recommendation if the Attorney-General certifies that making the information available would be likely to prejudice the prevention, investigation, or detection of offences. New section 31 provides that the Ombudsman may also not make a recommendation if the Prime Minister certifies that making the information available would be likely to prejudice New Zealand’s security, defence, or international relations.