23 November 2006

Stadium Aotearoa: the injunction

Bill Hodge was on the radio discussing the likely outcome of the injunction: > NatRadio: Stadium Injunction The gist of his comments generally reflect the legal position on local government consultation. However, there are a couple of points which should be clarified. A local authority’s obligation to take account of community views under section 78 does not, by itself, require that they consult. In particular, section 78(3) expressly says: "A local authority is not required by this section alone to undertake any consultation process or procedure." Looking more broadly at local authority decision making, it’s clear there are two distinct tiers of decision making: 1. Decisions generally. Section 78 requires that local authorities take account of community views. However, a local authority is entitled to make a judgement about how this is to be done and to what extent. It may be that the local authority can take account of community views simply asking themselves what they, as citizens, would think. In other cases, they could ascertain community views by other means such us talking with their citizens, running focus groups, or opinion polls, listening to delegations or reading correspondence from their community. Or the local authority may formally consult (if they decided to formally consult, then they would be obliged to undertake that consultation in accordance with the principles of consultation, but otherwise those principles will not apply). But ultimately the decision about whether they should consult lies with them. The only way to challenge a failure to consult under this section is to argue the local authority made a bad judgement. This is usually very difficult and requires the decision be "highly unreasonable" or "irrational". However, it may be possible in this case because local authorities are required, amongst other things, to comply with this obligation "largely in proportion to the significance of the matter affected by the decision" (section 79). Obviously this is a significant decision in relation to which one would expect a high degree of consideration of community views. 2. Significant decisions. A higher and more formal degree of public participation is required for "significant decisions". Section 97 requires that certain significant decisions, such as a decision to "commence ... a significant activity" or to "construct a strategic asset", only be taken if they are "explicitly provided for in the local authority’s long-term council community plan". This is the paramount council planning document and sets out their vision and proposed key activities for the next 10 years. A local authority is required to assess the significance of any decision by reference to their own significant policy. Clearly, a decision of this nature is significant. If the decision is not explicitly provided for in the long-term council community plan, the local authority must amend its plan through the special consultative procedure, that is, a formal decision-making process which sets out mandatory information requirements, a 1 month period for written submissions, and oral submissions directly to the local authority (section 83). (In this case, it may only take 7-8 weeks.) Auckland City is arguing that the waterfront stadium decision is already incorporated into its plan because there is reference to the following activity:
- contributing to regional, national and international facilities (such as a redeveloped Eden Park and/or a convention centre).
However, in my view, tt is simply not credible to say that waterfront option or this decision is "explicitly provided for", especially given the explicit complementary references to Eden Park. As Bill Hodge noted, the waterfront option has not been on the table or incorporated into the long-term council community plan. Auckland City cannot simply retrospectively squeeze this "fresh" option into the existing pigeonhole of an upgrade of a stadium in a completely different location.

21 November 2006

Stadium Aotearoa: the long-term council community plan

I've previously analysed why this decision should be incorporated in the City's long-term council community plan. See: > LAWS179: Stadium Aotearoa From my discussion with an officer about a LGOIMA request, the City is, I think, going to rely on the following provision in their LTCCP in the Strategic Milestones section of the part on "Arts, Community and Recreation":
Theme: Global city Auckland is a youthful, cosmopolitan and equitable global city. It is a great place to live and is welcoming of new migrants and businesses. Our diverse communities, and pioneer and distinct Pacific heritage, give us a special identity in the world.Auckland’s vitality and our special identity create social, cultural and business opportunities. Milestones: ... 6. Contribute to regional, national and international facilitiesWork with other external parties to develop regional, national and international facilities that attract visitors, boost the local economy and are a source of pride for all Aucklanders. a) Work with stakeholders to redevelop Eden Park to cater to 60,000 patrons by 2010 b) Work in partnership with others to develop the business case for joint funding of an internal-scale convention centre. Milestones to be finished by: [a)] 2010 [b)] 2007 Who is the council working with: [a)] Eden Park Trust Board [b)] Committee for Auckland (etc)
The narrative blurb at the front under “Key Decisions” also describes the following new projects:
- committing $100 million to create some amazing regional, national, and international facilities such as a redeveloped Eden Park and/or international convention centre
And in the “Descriptions of new projects”:
- contributing to regional, national and international facilities (such as a redeveloped Eden Park and/or a convention centre).
And further detail provided:
Name of Project: Contributing to regional, national and international facilities (such as Eden Park or a convention centre) Description: By working with other external parties the council will be able to help contribute towards creating some amazing regional, national and international facilities, which would attract more visitors, boost the local economy and be a source of pride for Auckland is. The draft long-term plan provided for a $50 million contribution towards international facilities for the city, such as the redevelopment of Eden Park and/or an international convention centre and signalled consideration or further $100 million. On 30 June 2006 the Eden Park Trust Board announced a $320 million plan to revamp Eden Park for the 2011 Rugby World Cup nearly double preliminary estimates. Auckland City increased the provision for international facilities, recognising the community facilities to be gained from the Eden Park development, and added a $50 million to additional transport initiatives to provide for improved traffic and pedestrian movement in the vicinity of the park. Key examples of a international facilities are: - a redeveloped Eden Park Eden Park needs to be redeveloped to cater for 60,000 patrons by 2010 for the Rugby World Cup in 2011. Total development cost would be considerably higher than the council's potential contribution and so this redevelopment would require working in partnership with other stakeholders. They council could contribute a certain amount in the form of a grant or a loan, but has not yet committed to doing so. - an international convention centre… Gross cost (before inflation): $100 million Contribution to the vision: Big city baseline - infrastructure and networks
There doesn’t appear to be any separate notation for stadia in the spending or asset information. Or in the three-year capital expenditure plans. But there is again reference to the upgrade of Eden Park in the narrative on “Events” (but no provision for capital expenditure). I think it must be embedded in the “Events organisation, facilitation and sponsorship” line item. The following entry is also found in “Significant Assumptions”:
6. The form of investment in international facilities has not been determined. While it has been treated as capital expenditure in this document, it may be equity in an entity, a loan, the acquisition of a fixed asset, a mix of all three or some other alternative. The final form of the investment will depend on the outcome of negotiation with the parties involved. Given the uncertainty, the investment had not been depreciated, consequential operational expenditure recognised or, as stated earlier, revalued. The impact of not depreciating this asset is not considered material.
Any injunction might then depend on whether the decision is “explicitly provided for” in its LTCCP in section 97(2):
(2) A local authority must not make a decision to which this section relates unless— (a) the decision is explicitly provided for in [its] long-term council community plan; and (b) the proposal to provide for the decision was included in a statement of proposal prepared under section 84.
I think it is not credible to say this decision is “explicitly provided for”, especially given the explicit complementary references to Eden Park. I seriously doubt the “such as” reference will be enough to incorporate reference to other options. Any holistic reading points to only one option being on the table: namely Eden Park. Alternatively, any putative provision for an international stadium, in any event, probably breaches the requirements of section 93(8) & (9) for the detail required in the LTCCP:
(8) A local authority must, in complying with the requirements of this Act in relation to the preparation and adoption of a long-term council community plan, act in such manner, and include in that plan such detail, as the local authority considers on reasonable grounds to be appropriate. (9) A local authority must, in deciding what is appropriate for the purposes of subsection (8), have regard to— (a) the provisions of sections 77, 78, 79, 80, 81, 82, 83, 84, 96, 97, and 101; and (b) the significance of any matter; and (c) the extent of the local authority's resources.
Again, although this is (principally) a matter for the judgement of the local authority, the City cannot credibly claim that the reference to international facility (along with explicit and implicit references to the upgrade of Eden Park) can be read to cover a brand new stadium on the waterfront. I stand by my view that this decision / projects is not provided for in the long-term council community plan and is required, as a matter of law, to be specifically consulted on through the special consultative procedure. A couple of other things: - Apparently someone is mounting an injunction application (I don't know who). - The City are adamant that the present community engagement process is not "consultation"; it is merely the seeking of views so the councillors can take account of community views (under section 78). Odd. No doubt because the present process would not meet the principles of consultation in section 82, particularly the requirements about information and reasonable opportunity to present views.

14 November 2006

Stadium Aotearoa - letter to Minister and the Mayor

Below is my letter to the Trevor Mallard and Dick Hubbard summarising my concerns about the decision-making process: Kia ora Minister and Your Worship I am writing to you both to express my concern about the present decision-making process for the stadium options in Auckland. I am a strong supporter of downtown stadium option. However, I am particularly concerned that the decision to adopt a particular option is to be made by the City within 11 days. In my view, this process does not adequately allow the community to have their say on the proposal and is in breach of the City’s decision-making obligations under the Local Government Act 2002. I urge you to extend the period for making the decision and allow the public to be consulted in accordance with the City’s obligations under the Local Government Act 2002. As you know, local authorities may not take certain decisions unless they are provided for in their long-term council community plan. Section 97, LGA 2002 provides: s97 Certain decisions to be taken only if provided for in long-term council community plan (1) This section applies to the following decisions of a local authority: (a) a decision to alter significantly the intended level of service provision for any significant activity undertaken by or on behalf of the local authority, including a decision to commence or cease any such activity: (b) a decision to transfer the ownership or control of a strategic asset to or from the local authority: (c) a decision to construct, replace, or abandon a strategic asset: (d) a decision that will, directly or indirectly, significantly affect the capacity of the local authority, or the cost to the local authority, in relation to any activity identified in the long-term council community plan. (2) A local authority must not make a decision to which this section relates unless— (a) the decision is explicitly provided for in its long-term council community plan; and (b) the proposal to provide for the decision was included in a statement of proposal prepared under section 84. The present waterfront proposal is not provided for in the City’s long-term council community plan. Clearly, it is a decision to which section 97 applies: it is a decision to commence a “significant activity” and/or a decision to construct a “strategic asset”. (The proposal is obviously a proposal of “higher significance” under the City’s significance policy. The term “activity” has a broad definition under the LGA 2002 and includes the provision of facilities and amenities and also regulatory and other government functions, ie whether or not the City will ultimately construct the stadium does not alter the fact the decision to support it is commencing a significant activity. Also, a decision not to adopt the waterfront stadium is also an decision to commence a significant activity because section 76(4) defines a “decision” to include a decision not to take any action.) In my view therefore, the City is required to amend its long-term council community plan to provide for this decision. As you will be aware, that requires public consultation under the special consultative procedure. The present expedited decision-making process is therefore flawed and does not accord with the City’s legal obligations under the LGA 2002. An “in principle” commitment and later public consultation is also flawed in my view. The government has made it clear that a decision one way or other needs to be made in the next 11 days. Committing to one option and then consulting the public would be perfunctory and amount to the predetermination of the decision. A failure to properly consult will place the ultimate proposal at risk of a legal challenge. I presume the legislation proposed by the government does not involve the validation of defective decision-making processes under the LGA 2002. Public consultation under the special consultative procedure could be undertaken and completed prior to Christmas, without unduly delaying the proposal. I urge you to allow adequate time for this important decision and to ensure the community is able to participate in it, as they are legally entitled. Regards Dean Knight Lecturer, Faculty of Law (Acting) Co-Director, New Zealand Centre for Public Law Victoria University of Wellington, Government Buildings, 15 Lambton Quay, PO Box 600, Wellington, New Zealand [ tel +64 (4) 463 6364 ] [ fax +64 (4) 463 6365 ] [ mob +64 (21) 684 544 ] [ dean.knight@vuw.ac.nz ] [ www.vuw.ac.nz/law ]

13 November 2006

Stadium Aotearoa

I should say I’m a big rugby fan and, while living in Auckland, we had season tickets at Eden Park. However, I fully support the idea of finding a downtown stadium site (although I have said for a long time that the Carlaw Park site must be a better option). As much as I liked the history and quirkiness of Athletic Park (I played on it a number of times and even once scored a try there!), the rugby and events experience from a logistically-sound, downtown stadium is superb.

But... Mallard is dreaming if he thinks that the Auckland City Council and Auckland Regional Council can make a decision about the stadium in 2 weeks. There’s a little legal obligation called participatory democracy that will stand in their way (quite apart from the question of any Resource Management consents). I’ll explain.

First, for all decisions, local authorities are required to take account of community view under section 78 of the Local Government Act 2002:

s78 Community views in relation to decisions

(1) A local authority must, in the course of its decision-making process in relation to a matter, give consideration to the views and preferences of persons likely to be affected by, or to have an interest in, the matter.

(2) That consideration must be given at—

(a) the stage at which the problems and objectives related to the matter are defined:

(b) the stage at which the options that may be reasonably practicable options of achieving an objective are identified:

(c) the stage at which reasonably practicable options are assessed and proposals developed:

(d) the stage at which proposals of the kind described in paragraph (c) are adopted.

(3) A local authority is not required by this section alone to undertake any consultation process or procedure.

(4) This section is subject to section 79.

However, section 79 allows local authorities to make judgements about the extent of compliance with this obligation “largely in proportion to the significance of the matters affected by the decision”.

The upshot is that local authorities must take into account community views but the method to achieve this and extent to which it is achieved is a matter of judgement for them. This section does not require that they consult – community views may be taken into account by applying their own judgement as citizens / delegate or through other means such as public meetings etc.

Secondly, the LGA 2002 requires a greater level of public participation for decisions which are “significant”:

- Section 97 says that certain decisions can only be taken if they are explicitly provided for in long-term council community plan:

s97 Certain decisions to be taken only if provided for in long-term council community plan

(1) This section applies to the following decisions of a local authority:

(a) a decision to alter significantly the intended level of service provision for any significant activity undertaken by or on behalf of the local authority, including a decision to commence or cease any such activity:

(b) a decision to transfer the ownership or control of a strategic asset to or from the local authority:

(c) a decision to construct, replace, or abandon a strategic asset:

(d) a decision that will, directly or indirectly, significantly affect the capacity of the local authority, or the cost to the local authority, in relation to any activity identified in the long-term council community plan.

(2) A local authority must not make a decision to which this section relates unless—

(a) the decision is explicitly provided for in its long-term council community plan; and

(b) the proposal to provide for the decision was included in a statement of proposal prepared under section 84.

Notably, the judgements about the nature and extent of compliance that apply to other decisions do not apply to section 97.

- Local authorities are required to have adopted a policy of determining significance, including the identification of strategic assets. Most of these have a set of quantitative thresholds, ie certain amount of spending, and some qualitative thresholds, ie the proposal affects a small number of people to a high degree or large number of people to a moderate degree. This policy acts as a filter for applying the obligations in section 97.

- If the proposal is not in the long-term council community plan, the local authority must amend the plan under section 84 to incorporate the proposal. Any amendment must be consulted on under the special consultative procedure. (The long-term council community plan is prepared and adopted under the special consultative procedure every three years.)

- The special consultative procedure is the most formalised means by which local authorities can take account of community views. Section 83 sets out a number of mandatory public participation requirements, including public notice of the proposal and a one month period for submissions.

The philosophy behind these requirements is to ensure that local authorities adopt a long-term strategic perspective for significant decisions mandated by public consultation – ensuring a local authority does not act on a “whim” when making a significant decision.

The short point is that the waterfront stadium option is not, as far as I’m aware, provided for in the City’s long-term council community plan.

You’ll find in the City’s long-term council community plan the City’s policy on significance. Clearly the stadium plan will qualify as a significant proposal. This will trigger the obligation to include the proposal in the long-term council community plan by the special consultative procedure.

The legal beagles may be thinking that that amendment can be made in due course, after the City has committed to the proposal. But that must be flawed. There can be no surety about the proposal until it’s in the long-term council community plan. And the City can’t treat the consultation as a mere formality to endorse a decision they’ve already committed to – this would breach the requirements to consult on the proposal with an open mind.

In my view, the only legal option is to expedite an amendment to the long-term council community plan. This would take at least 6 to 8 weeks (and that’s incredibly optimistic!).

10 November 2006

Censorship - appeal stats

Routinely you will see media releases from groups criticising the present censor and the censor's office about various decisions, either saying they're too liberal or too conservative. My own personal view is the counterveiling criticisms from conservative and liberal groups probably means the censor is doing a pretty good job! Anyway, I've obtained some details from the Office about the outcome of appeals from the censor to the Film and Literature Board of Review, which make interesting reading:
1995-2006PatersonHastings
Total Number of publications reviewed:1014457
Outcome of review:
- Original rating raised:14122
- Original rating maintained:631647
- Original rating lowered:24168

It shows that the present censor, Hastings, has been found to be too liberal with classifications in only 3.5% of the appeals - in contrast to 27% for the previous censor, Paterson. And too conservative in 14% (Hastings) and 24% (Paterson) of the appeals respectively.

The success of different groups who have appealed is also interesting:

- 100% Hoyts, Nobilangelo Ceramulus Publisher, NORML, John Nicholson, Tweak Holdings Ltd, UIP - 67% Individuals / organisations with no interest in publication wanting higher rating - 50% NZ Film Festival Trust, Sony/Columbia TriStar, Video Wholesalers - 25% Vixen - 13% Society for the Promotion of Community Standards - <1%> Individuals contesting forfeiture or defending prosecutions - 0% Individuals / organisations with no interest in publication wanting lower rating, Christian Heritage Party

It's encouraging to see some certainty in the evaluation process with 83% of the classifications being upheld under Hastings' tenure. I previously criticised the lack of predictability about classification decisions, particularly the disparity between the censor's office and the Board - especially where the possession offence does not require proof of knowledge of the objectionable status or content.

> See Dean Knight, "An Objectionable Offence: A critique of the possesssion offence in the Films, (etc) Classification Act 1993" (1997) 27 VUWLR 541.

I'm also pleased to find data confirming the robustness of the present censor's decision and refuting the supurious claims made about his decisions, particularly his alleged liberalness due to his sexuality. Bill is a good friend of mine and supervised my LLB(Hons) research paper (ie the one published above). I've always found him to care deeply about the proper interpretation and application of the law, regardless of his personal perspectives.

I'm rather keen to do an update on my 1997 article - I still find the possession offence objectionable, particularly as it has been applied to objectionable publications in someone's internet cache...

8 November 2006

NatRadio: Ignorance of Law

Below are links to my discussion with Kathryn Ryan on NineToNoon about ignorance of the law and mistakes: > NineToNoon: Law [archived stream] > NineToNoon: Law [mp3 podcast] And here's the favourite example I had in my notes but didn't get a chance to slip in:
For example: - a person is not guilty if they grew cannabis plants thinking they were tomato plants (mistake of fact); - however, a person is guilty if they grew cannabis thinking that growing them for medicinal purposes was lawful (mistake of law).

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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