Local Government Regulation of Moral and Spiritual Wellbeing

Abstract

The Local Government Act 2002 (LGA) is said to emphasise local authorities as “responsive, collaborative facilitators of community outcomes.” This paper explores the way in which New Zealand local government may be responsive to the moral and spiritual beliefs of its citizens. In the course of doing so, it seeks to identify what room exists within the legislative framework for morally and spiritually driven regulation. This is an angle on local government power which has previously not been attempted in New Zealand. It therefore broadens the current scholarship on the scope of modern local government function. In a climate of expanding responsibility for local authorities, it is important that the limits to their power are explored and understood. This paper contributes to that task. The LGA is examined in order to determine the scope of local government’s bylaw-making powers, as well as the potential for morally-driven action under the power of general competence. This will determine that the window for bylaw control of offensiveness is somewhat limited. However, where health or safety considerations are involved, these will often legitimise regulation without the need for a “moral mandate”. Where general competence is concerned, a wide range of decisions may be made to protect public morals, though coercive action is not within this sphere. The Resource Management Act 1991 (RMA) is then discussed. Under this legislation, district plans, abatement notices and resource consents represent the main avenues for protection of “metaphysical wellbeing”. Here too, room for regulation exists. However, as with the LGA, the most difficult task facing local authorities is correctly identifying what is, or is not “offensive” in a legal sense. The uncertainty which surrounds this term gives rise to questions under the New Zealand Bill of Rights Act 1990. The paper goes on to look at the way in which metaphysical regulation interacts with the rights of individuals, and whether rights may properly be curtailed by a concept as nebulous as offensiveness. Finally, it will be asked whether local government involvement in the metaphysical wellbeing of communities is, in fact, appropriate or desirable. Despite the difficulty in applying objectivity to issues of morality and spirituality, this paper concludes that uncertainty is not fatal to local government’s role in this area. The imprecision with which rules on offensiveness are applied is outweighed by the benefit accruing from a truly comprehensive local government mandate. A detailed analysis of any one area is not attempted. Rather, a meta-level approach is taken, using issues such as genetic engineering, abortion and commercial sex premises to draw conclusions on the breadth of local government power.