Greg Presland: Blame lies with Minister of Local Government

Minister of Local Government Rodney Hide. Photo / Dean Purcell

I note that Paul Goldsmith has suggested Len Brown is to blame for the current issues relating to tangata whenua representation on the Auckland Council.

I believe that he is misguided in blaming Len and he should instead aim his sights on Minister of Local Government Rodney Hide.

I am a member of the Waitakere Ranges Local Board and a lawyer. I was also previously a councillor on the Waitakere City Council.

These comments are my personal beliefs, do not represent the Auckland Council's formal position and are uninformed by the advice that the council itself has received.

But I think that on the question of "blame" it is clear who is responsible.

Goldsmith suggests that the problem lies with Auckland Council's overly cautious interpretation of the various applicable pieces of legislation and suggests that with a sufficiently wide interpretation of the legislation the current position could have been avoided.

I believe that the result is unavoidable once the pieces of legislation are considered.

A starting point is section 85 (1) of the Local Government (Auckland Council) Act 2009 which provides: "The [Maori Advisory] board must appoint a maximum of 2 persons to sit as members on each of the Auckland Council's committees that deal with the management and stewardship of natural and physical resources."

Please note the emphasis. Appointees are not observers or advisers but "members".

The next matter to consider is the voting rights that a member of a territorial local authority has. Schedule 7 of the Local Government Act 2002 deals with the conduct of business by a local authority and its committees. Rule 24 of the schedule provides as follows:

"(1) The acts of a local authority must be done, and the questions before the local authority must be decided, at a meeting by - (a) vote; and (b) the majority of members that are present and voting."

There is an exception if the standing orders of the authority expressly provide otherwise. But the standing orders must not contravene the Local Government Act 2002.

Hide has hinted that the Auckland Council should change its standing orders, presumably to prevent appointed members from voting. This is, as a matter of principle, appalling and clearly discriminatory.

If such changes to the standing orders were made they would be in breach of among other things section 14 (1) (e) of the Local Government Act, which provides that "a local authority should provide opportunities for Maori to contribute to its decision-making processes".

Removing from tangata whenua representatives the right to vote bestowed on them by legislation would be clearly wrong as it would be lessening an opportunity for Maori representatives to contribute to the council's decision making processes.

The basic problem is the decision to designate the appointees as "members". I suspect this was an oversight, rather than intended.

There have been numerous criticisms of how the Super City process was rushed and would result in unforeseen consequences and, I believe, this is yet another example.

Having refused to allow democratically elected representatives of Maori from being elected, it is hard to believe that the Government could then decide to give appointed representatives the right to vote.

Can the councillors refuse to accept legal advice and nevertheless remove the voting rights of the appointees? Well, they can, but in some circumstances this can result in personal liability for debts so they do so at their peril.

I am quite sure that any such change could be successfully challenged on review.

I agree with Mr Goldsmith that the amounts set aside for administration of the board are significant but again the blame is not with the Auckland Council but Parliament. It has directed the council to pay the board's expenses.

Under clause 17 of schedule 2 of the Local Government (Auckland Council) Act 2009 the council is directed to appoint an independent expert as soon as practicable after it is elected to inform it of appropriate fees for the council to pay the members of the board.

The independent expert must consider the board's purpose, functions and powers and must make a recommendation to the board. The Auckland Council must act in accordance with the information provided to it by the independent expert.

So, again there is not a huge amount of discretion left to the council.

Much has been made of the tenfold increase from the Transition Authority's estimate to the initial amount agreed to by the council.

If you look carefully at the breakdown the difference is clear. The Transition Authority thought that the advisory committee would be advisory only and have no vote.

The council has, rightfully in my view, concluded that the appointees have a vote.

This means that they must have independent access to expert advice if they are to be expected to do their job properly. They also must have separate premises, an independent secretariat and other resources.

I agree entirely with Mr Goldsmith that this situation is unacceptable. But I suggest that he looks to Wellington rather than Auckland in working out who is to blame.

* Greg Presland is now a member of the Waitakere Ranges Local Board.