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New Zealand Human Rights Commission Submissions |
Last Updated: 26 May 2015
Submission by
the
Human Rights Commission
(AUCKLAND LAW REFORM) BILL
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Auckland Governance Legislation Committee
12 February
2010
Sylvia Bell
Principal Legal and Policy
Analyst
Phone 09 306 2650
1.1 Human rights underpin New Zealand’s system of government, our ability to have a say, equal opportunity and fair treatment. While central government has specific responsibilities for the promotion and protection of human rights, those responsibilities extend beyond the State to regional and local government.
1.2 The promotion of concepts such as participation, transparency, equity and accountability which are central to a human rights approach would increase public confidence and trust, and core services would be delivered more effectively.
1.3 The Human Rights Commission (“the Commission”) supports a more effective and democratic local government structure for New Zealand’s biggest region which is premised on human rights principles.
1.4 This submission on the Local Government (Auckland Law Reform) Bill by the
Human Rights Commission (“the Commission”)
complements the
Commission’s submission on the Local Government (Auckland Council) Bill -
now the Local Government (Auckland
Council) Act 2009.
1.5 The Commission recognises that, to some extent, a number of issues identified in our earlier submission have been addressed in the Local Government (Auckland Council) Act 2009. However, others – such as ensuring a reasonable submission period, clarification of roles of local boards, the ability to participate meaningfully in the electoral process and the provision of seats for Māori - were deferred to this Bill.
2.1 Human rights and good governance are closely connected. Rights such as democratic participation, transparency and accountability apply at all levels of government, including local government. A human rights approach:
2.2 The effect of a human rights approach is to improve services and enhance public satisfaction and engagement in how those series are delivered. The issues addressed in this submission are:
3.1 The ability to participate in public affairs is one of the foundations of
a democracy. Art.25 of the International Covenant on
Civil and Political Rights
(ICCPR) states that everyone has the right to take part in the conduct of public
affairs[2]. Participation should be
both free and meaningful. While voting is a fundamental aspect of participation
so, too, is the ability
to contribute to the development of legislation.
3.2 In its submission on the Local Government (Auckland Council) Bill the Commission commented that the time allowed to develop submissions on the Bill had been inadequate, limiting the opportunity for consultation with, and among, those most affected. It asked that at least twelve weeks be allowed for any future submissions to ensure genuine consultation and input. The Commission considered that this would result in greater community understanding of significant issues, improve the debate in the media, enhance the quality of submissions and enable the Committee to engage more constructively with members of the public.
3.3 While the Commission recognises that it is probably too late to rectify
it, we wish to record our concern at the abbreviated submission
process for such
an important reform and the lack of public confidence as a
result[3].
3.4 The Commission is also concerned about the drafting of the Bill and the lack of clarity. Aspects of the Bill are obscure. It has an abbreviated explanatory note and extensive cross referencing to other legislation. This may well be a result of the limited timeframe required to ensure the legislation is introduced before the local government elections in 2010. However, it effectively makes a mockery of meaningful public consultation, given the difficulty for people not familiar with legislation coming to grips with what is proposed.
3.5 The Commission registers its strong opposition to the rushed process and piecemeal approach to legislation that will make a major difference to the lives of one third of New Zealanders.
4.1 Various international human rights documents emphasise the importance of universal suffrage[4]. States are expected to ensure that the right to vote is available to everybody and people are not denied the right because of, inter alia, their status as members of a particular group[5].
4.2 It has been suggested that the principle of one person, one vote could be undermined – possibly inadvertently – as a result of clause 35 which extends the right to vote for local boards to “ratepayer electors”. Theoretically this could result in landlords who pay rates on properties they own in districts they do not live in being able to vote more than once simply because they pay the rates. The effect of this would be to confer greater rights on those who own property than people who rent.
4.3 The problem seems to have arisen because local boards are not specifically identified in the Local Electoral Act 2001 (LEA). While much of s.24 LEA (ratepayer electors) is replicated in clause 35 of the Bill, the clause does not include a provision analogous to s.24(2) LEA which specifically excludes ratepayers being able to nominate different people to vote in the same region, district or community.
4.4 The Commission recognises that this concern may be illusory as the Bill is subject to the LEA (by reason of s.5 LEA) and s. 20 of that Act only allows an individual to vote once in any election or poll[6]. It would nevertheless be preferable to have this situation clarified in the Bill itself. The Commission therefore recommends the inclusion of a specific provision analogous to s.24(2) LEA.
5.1 The decision to depart from the findings of the Royal Commission (which
recommended the establishment of a Council with significant
powers supported by
six local councils that focused on local engagement and the delivery of quality
local services) and introduce
a second tier of approximately 20 to 30 local
boards with considerably less power, attracted criticism when the Local
Government
(Auckland Council) Bill was introduced.
5.2 The change was justified in the explanatory note to the Bill as being more democratic[7]. However, there was wide spread concern that the resulting dilution of power would result in weak, ineffective boards that would be of little real benefit to the communities they represented. The Commission recommended that the eventual legislation should ensure that boards had meaningful powers and responsibilities clearly defined and protected by statute.
5.3 Despite reassurance that this would be the case, the eventual legislation passed the initial allocation of powers to the Auckland Transition Authority without defining the powers and roles of the Boards[8].
5.4 Although the boards will theoretically decide local issues, the Council will have the ultimate say on what is local and what is regional. If the Council decides that a matter is better dealt with at regional level then it can refuse to delegate it.
5.5 The Commission recognises the potential difficulties with prescriptive lists of roles in legislation. However, without greater role clarity, the new Council and local boards are likely to divert time, energy and resources defining their roles and accountabilities rather than efficiently and effectively carrying out their local governance functions.
5.6 The omission to identify in statute the powers and responsibilities of the boards has the potential to minimise local input and to centralise power in the Council. The Commission therefore reiterates that there needs to be greater statutory recognition of the role and power of boards to ensure they can genuinely influence local issues.
6.1 The Commission’s position on the Treaty as it relates to local
government is relatively straightforward - where the Government
delegates
authority to another entity that entity should be subject to the same duties as
the Government itself. As the Crown has
committed itself to upholding the
principles of the Treaty, we would argue that these principles should apply
where relevant to the
activities of local authorities.
6.2 The Commission remains concerned about the mechanism proposed for representation of Māori in the new structure. In our earlier submission, we supported the establishment of safeguarded Māori seats to give effect to obligations under the Treaty of Waitangi and the special status of tangata whenua[9]. Despite significant support for identified seats for Māori, this was not the approach adopted.
6.3 While the Committee acknowledged the importance of Māori representation it recommended that the Auckland Council should be responsible for providing for Māori representation. To give effect to this, the Bill establishes a statutory board to “promote issues of significance for mana whenua and Māori of Tamaki Makaurau”.
6.4 The Board has no real power. It is purely advisory and the provision of advice does not extend to the CCOs. The Council is only required to take the Board’s views “into account”. In other words it can disregard the Board’s views. As the Ministry of Justice note in their Bill of Rights compliance advice:
The [Bill] only goes so far as is necessary to ensure their informed participation and input, and does not confer a right of veto. The Bill does not attempt to assign particular weight to the Board’s advice and the Council is not required to follow it.[10]
6.5 The Commission considers the way in which Māori representation is addressed in the Bill is incompatible with commitment to the Treaty. There should be specific seats on the Council itself for Māori. The Commission therefore opposes the proposal outlined in Part 7 of the Bill and recommends the issue is revisited.
6.6 If, however, Part 7 is retained, then given that the Board’s role involves matters that are of “significance” for mana whenua and Māori of Tamaki Makaurau, clause 73(c) should be amended to require the Council to “give effect to” the Board’s advice rather than simply take it into account.
6.7 The Board’s provision of advice needs to be extended to CCOs, given their significance in local government.
7.1 It does not follow that making provision for specific representation for Māori in this way would require similar arrangements to be made for other ethnic groups. While it may be argued (and undoubtedly will be) that provision of identified seats for Māori amounts to special treatment and therefore discriminates against other ethnic groups on the ground of race, the Commission believes that it can be justified both under the Treaty and the internationally recognised right of Māori as indigenous people to participate in decision making[11].
7.2 The Bill does, however, provide for a Pacific Peoples Advisory Panel and an Ethnic Peoples Advisory Panel to identify and communicate to the Council the interests and preferences of Pacific peoples and Ethnic communities of Auckland respectively. The Mayor will control the establishment of both panels.
7.3 As with the Board there is no requirement for the views of these groups to be taken into account. They also have a limited life and will be disestablished on the 1st November 2013: clause 111(4). They will only exist for the first term of the new Council. In addition, as with the Board, there is no requirement for CCOs to liaise with the Panels[12].
7.4 The Commission considers that it is inappropriate to disestablish the Panels after two years. Auckland is the most ethnically diverse region in New Zealand[13]. People of different ethnicities are already under represented at local body level yet hold just 4% of council seats.
7.5 While we recognise that it would not be practical to have designated seats on the Council for the large number of different ethnic communities, the voice of the diverse communities in the decision-making process is crucial to the credibility and effectiveness of the new structures[14]. The discretion for the Mayor to establish a process or mechanism for the Council to engage with the people of Auckland generally in relation to matters of (for example) cultural or ethnic interest[15]does not compensate for the termination of the statutory Panels.
7.6 Without such panels important decisions on local issues are at risk of being made behind closed doors, without democratic input, effective scrutiny or widespread support[16]. The Commission recommends the deletion of clause 111(4) and making the Pacific and Ethnic Advisory Panels permanent. We also suggest that the relationship between the Advisory Panels and the various organs of local government is strengthened and CCOs have an obligation to liaise with the Advisory Panels.
8.1 Until now CCOs or Council-controlled organisations - the mechanism by which most non-regulatory activity is delivered – have been established under the Local Government Act 2002. A special consultative procedure is required under s.56 to establish a CCO. Under s.83 a proposal to establish a CCO is available for public inspection. There is a written submission process and opportunities for people to be heard. Deliberative meetings are open to the public and written submissions publicly available. Local authorities also have to have an objective and transparent process for appointing Directors.
8.2 The Bill changes this. Clause 35G allows the Auckland Transition Agency to establish one or more entities as CCOs on the recommendation of the Minister.[17]Even then there is an element of discretion vested in the Minister who will only be able to recommend the establishment of a CCO if it is “necessary for the effective and efficient governance of Auckland” and “does not inappropriately constrain the discretion and accountability of the Council”. The Minister will also appoint the first boards of Directors of CCOs: cl.35H.
8.3 In other words, the Minister – via the Auckland Transition Agency (ATA) (a non-elected body) - will have responsibility both for appointing the Directors of CCOs and determining the objectives and structure of those CCOs. The changes will allow for the termination and reconfiguration of existing CCOs[18]and, given the lack of control through elected representatives, could pave the way for privatisation of some the assets falling within the jurisdiction of the CCOs. The considerable power vested in the Minister could undermine the role of the Council if too many CCOs with are established without the Council being able to set their strategic direction or control policy[19].
8.4 The change will also limit community input. As noted already, CCOs are not required to heed the advice of the Pacific Peoples, Ethnic Panels and Māori Boards. The decision to restrict public input will undermine established community relationships that stakeholders have with facilities such as the provision of water and transport, the Zoo and the Auckland War Memorial Museum.
8.5 The lack of transparency in decisions about appointments is undemocratic and could see power transferred to un-elected Ministerial appointees. It is not only Māori, Pacific and Ethnic groups who will be affected. Women are under-represented on CCOs[20]. The evidence suggests that few women are appointed to CCOs throughout New Zealand at present and, while there has been little research on why this is so, the fact that the process will be not be subject to public scrutiny is likely to exacerbate this.
8.6 The Commission opposes cls.35G, H and I as well as cl.76 (councillors unable to be appointed as directors of substantive CCOs.) We recommend that Directors of CCOs are appointed by the elected Council and that the process for establishing CCOs is transparent and participatory, including advertising publicly for CCO directorships.
9.1 The right to water is a fundamental human right found in many human rights treaties[21]. It underpins the right to health in Art.12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
9.2 Drawing on the international authorities the UN Committee with responsibility for monitoring economic, social and cultural rights stated in 2002 that water was itself an independent right falling within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. It said:
The human right to water entitles everyone to sufficient, safe, acceptable physically accessible and affordable water for personal and domestic use... [22]
9.3 An amendment to clause 18 of the existing Shareholders Agreement with Watercare will enable directors of retail water companies to be appointed to the Board of Watercare by the Shareholders Representative Group (SRG). The Board of Watercare will therefore be changed by the SRG before 1 November 2010.
9.4 Watercare itself is exempted by the Bill from the status of a CCO until 1 July 2012[23]and until 2015 there are restrictions on price setting and the form and asset ownership of Watercare[24]. Thereafter the Council has the discretion whether to provide water services for Auckland, leaving open the possibility that the operation of providing Watercare could be privatised after 2015.
9.5 The provisions in clauses 65 to 74 of the Bill set out how Watercare is to operate and are notable for the lack of transparency and public input, focusing as they do on financial performance. In the Commission’s view this is inappropriate in relation to a commodity that is a basic necessity and an essential public service and incompatible with the requirements in s.10 LGA 2002.
9.6 It is unclear whether Auckland Council will be able to privatise the new water company after 2015[25] but the Commission considers that it should be explicitly stated that existing privatisation protections will continue to apply to Watercare.
9.7 The Commission is therefore opposed to clause 73 which allows for the possible privatisation of Watercare and recommends that the Bill explicitly states that Watercare will not be privatised.
10.1 Under Schedule 3 the sum available for campaign spending has been increased. Currently electoral expenses in a local government campaign for an area with a population of 250,000 are limited to $70,000[26]. The intention is to increase this by adopting a formula which allows for a sum of $100,000 plus 50c for each registered voter where the constituencies exceed one million.
10.2 Applying this formula to the new Super City means that candidates will be able to spend $580,000 in the last three months of the campaign. Effectively this will limit the candidates who can run for election as mayor to those with money, those who have wealthy backers or who are put up by political party “tickets”.
10.3 Art.25 ICCPR refers not only to the right to vote but also to the ability to stand for election[27]. The Committee with oversight of the ICCPR has interpreted this as requiring that everyone should be able to access the right to stand for electoral office without discrimination and that any restrictions needed to be objective and reasonable.[28]
10.4 The Commission considers that the increased limits for campaign spending arguably infringe the right to stand for elective office. While we accept that it will be necessary to increase the amount of spending for campaign purposes – and some candidates will always find it difficult to compete – we consider the level proposed is excessive and unfairly disadvantages some candidates. Rather than calculating the amount using the formula suggested, the Commission considers it would be preferable to either amalgamate the sums currently available to existing councils or use similar amounts to the campaign limits available in Parliamentary elections[29].
10.5 The proposed campaign limit of $580,000 eliminates the prospect of running for the mayoralty for a large number of suitably qualified candidates. The Commission recommends deleting the formula proposed in Schedule 3 and substituting a sum that will ensure a larger, possibly more diverse, range of candidates[30].
11.1 In its earlier submission the Commission identified its concern at the possible effect of the amalgamation on existing local government employees. In particular, we were concerned to ensure that the “good employer” provisions in the Local Government Act were adhered to in the reassignment of staff and recruitment reflected a genuine commitment to the diversity of the greater Auckland area. In particular, we noted our concern that any benefits that accrued as a result of length of employment were adequately protected and in the event of redundancy adequate social support was available.
11.2 The Commission recognises that an attempt has been made to address the employment issues arising out of the amalgamation in Schedules 4 and 5. We accept that it provides clarity to employees and that people will be transferred where possible to comparable positions on similar terms and conditions. We are also reassured that where positions are contestable selection will be decided on merit, service and competency.
11.3 We would, however, question the implication that redundancies are automatically a consequence of restructure in light of the global recession and the fact that New Zealand’s unemployment rate has risen to 7.3%. The Household Labour Force Survey, December 2009 quarter shows that the number of people employed in Auckland decreased by 16,900 last year. Commentators generally consider there is unlikely to be a jobs-led recovery for several years.
11.4 The Commission recommends that a similar approach could be adopted for local government staff to that taken in Queensland[31] and New South Wales where there was no forced redundancy of staff below senior level for three years after the merger or restructure
12. CONCLUSION
12.1 Local government, by its very nature, requires public authorisation about structure, role and functions as well as the process of establishment for it to work.
12.2 The Commission believes that the inadequate submission and consultation process, the lack of role clarity relating to the Council and Local Board interface, the confusion about ratepayer electors, the concentration of ministerial power over CCOs, and the big increase in campaign spending, taken separately and together will undermine local government democracy.
12.3 Aucklanders also deserve to have local government representation that
honours the Treaty of Waitangi and that acknowledges the
cultural and gender
diversity which is integral to the city’s character and which underpins
the city’s significant economic
and social contribution.
12.4 The Auckland Governance Committee has an opportunity to exercise its
select committee powers to ensure the proposed legislation
upholds basic human
rights principles of improved participation, fair representation, strengthened
democracy, and greater effectiveness
and efficiency.
12.5 The Local Government (Auckland Law Reform) Bill needs substantial amendment to satisfy these human rights principles. Without it, the opportunity for strong and vibrant local governance in Auckland will be lost.
12.6 The Commission recommends that:
[1] International Council for Human Rights, Local Government and Human Rights: Doing Good Service, Geneva (2005) at 4.
[2] Public affairs are defined as all aspects of public administration and the formulation and implementation of policy at all levels including at regional and local levels: General Comment 25 CCPR/C/21/Rev.1/Add.7 at para 5.
[3] The Bill was introduced on 10/12/09 which meant there was less than 10 weeks to make a submission and the period coincided with the traditional New Zealand summer holiday break.
[4] See, for example, the
Universal Declaration of Human Rights, the ICCPR, European Convention for the
Protection of Human Rights,
and the Charter of the Organisation of American
States.
[5] Arts.2 and 25 ICCPR
[6] Section 20(4)
LEA
[7] Explanatory Note, Local
Government (Auckland Council) Bill at p.4
[8] The ATA says it expects to have “meaningful information” about the roles and functions of boards (which will apply when the boards come into existence in November) by March
[9] The Commission recognises that even if there are specific seats reserved for Maori, there are complexities relating to the selection of who should fill those seats that are not easily resolved – for example, whether seats should be reserved only for mana whenua or whether there should only be one designated seat for mana whenua with others reserved for Maori generally to accommodate Maori living within the Auckland region with no ancestral ties to the area.
[10] Ministry of Justice Consistency with the New Zealand Bill of Rights Act 1990: Local Government (Auckland Law Reform) Bill available www.justice.govt.nz
[11] This is not say there is no discrimination but rather that it can be justified under the test in s.5 of the New Bill of Rights Act. See also the advice of the Ministry of Justice at paras 9 et seq. The Commission is not, however, convinced that the Ministry’s argument that the decision to limit the Pacific and Ethnic Peoples Panels to 2 years can be justified. Nor is it entirely convinced, given New Zealand’s ratification of the United Nations Convention on the Rights of People with Disabilities, that disqualifying a person because they are subject to certain orders under the Protection of Personal and Property Rights Act 1988 does not amount to disability discrimination.
[12] Unless the Council imposes some such requirement on a CCO under clause 75(2)(c), for example.
[13] According to the 2006 census 56% of the regional population identified with European ethnic groups, 19% with Asian, 14% with Pacific people and 11% with Maori.
[14] We note, for example, that one of the top ten race relations priorities in this year’s Race Relations Report is to ensure mechanisms are in place to make sure that Maori, Pacific and ethnic communities have an effective voice in the decisions of the new Auckland super city council at the regional and local level.
[15] The power found in section 9(3)(a) of the Local Government (Auckland Council) Act 2009 survives the sunset clause in the Bill.
[16] Harland, C. Council controlled organisations and community engagement Institute of Public Policy, AUT (2009) at 23
[17] The Commission understands
that the Transition Agency intends to publish a discussion document for CCOs. It
is still unclear whether
the public will be able to provide feedback or if it
will be restricted to Councils, affected organisations and staff.
[18] Harland, C. supra fn14 at
16
[19] Councillors are unable
to be appointed as Directors.
[20] 20% compared to 29% for elected women council members: Human Rights Commission, New Zealand Census of Women’s Participation (2008) at 57
[21] Convention on the Elimination of All Forms of Discrimination Against Women: Art.14; Convention on the Rights of the Child: Art. 24; Convention on the Rights of Persons with Disabilities: Art.28.
[22] UN Committee on Economic,
Social and Cultural Rights, General Comment No.15: the Right to Water
(2002) UN Doc.
E/C.12/2002/11
[23] Until then it
is subject to the Local Government Act 2002 by reason of s.124
[24] Clause 71
[25] Cabinet paper, EGI (09)
212: Removing Barriers to Water Infrastructure Development in the Local
Government Act 2002, Cabinet Economic Growth and Infrastructure Committee
(16/10/10) at para 6
[26]
S.111(1)(j) LEA 2001
[27] See
also s.12(b) New Zealand Bill of Rights Act 1990
[28] General Comment 25
CCPR/C/21/Rev.1/Add.7 at 15
[29] Under s.205B Electoral Act 1993 (inserted by s.6 Electoral Amendment Act 2009) individual candidates have a spending limit of $20,000 for general elections and $40,000 for by-elections.
[30] In line with the comments of the Auckland Governance Legislation Committee, Commentary on Local Government (Auckland Council) Bill: 36-2 at 10
[31] In Queensland the
number of councils reduced from 157 to 73.
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