12 October 2007
Christchurch City, Council offices, and (un)constitutionality
> ThePress: "Council and iwi in last-minute HQ deal" > ThePress: "New civic HQ good news for ratepayers" > ThePress: "Voters opposed to civic 'palace'" > CCC: "Christchurch City Council Agenda, Thursday 11 October 2007" At its final meeting of the year the Christchurch City Council voted to enter a $52M contract for new Council premises. The item was added to the Council agenda as a supplementary item at the 11th hour, without notice, and was discussed as a public-excluded item. In my view, this type of decision-making is egregious, arguably "unconstitutional", and may provide grounds for invalidating the election. Given the rapidness of this issue arising, I have not been able to undertake a complete review of the background to this decision. However, my understanding is as follows: - The issue of new premises for the Council has been a long-standing issue for Christchurch. - The Council has been searching for suitable premises for some time and has made some provision for funding this in its long-term council community plan (although, from a quick glance at the long term council community plan, the organisational arrangements for the funding of the premises seems rather complicated and involve other Council controlled organisations). Most recently, in June it widened the scope of its search, asking for the CEO to "report back" in September. - At yesterday's meeting, the Council resolved to enter into an agreement with Ngai Tahu in relation to the new premises, with a cost to the Council of around $52M. - The question of the new premises and the associated decision-making process have been major issues on the hustings. The upshot is that the Council has determined a matter of significant expenditure and public interest – without notice in a public-excluded meeting – less than 48 hours before the close of polling, some 19 days into the voting period. My initial thoughts are as follows: 1. The decision must be a breach of the principle in s14(1)(a) of the LG Act 2002 "(1)In performing its role, a local authority must act in accordance with the following principles ... a local authority should ... conduct its business in an open, transparent, and democratically accountable manner". Taking the decision at the end of the voting period removes any prospect of democratic accountability for the decision. Ratepayers have no ability to express their disapproval at the ballot box in the ordinary way. My concern is not principally directed at the lack of advance notice or public-excluded meetings (such measures are routine and often justifiable). That said, in this case, these measures exacerbate the lack of democratic accountability, particularly the lack of advance notice. Further, the grounds for invoking these measures are doing so appear dubious and weak. In particular, no explanation is provided for the late addition of the supplementary report apart from an assertion that it is "urgent" and cannot wait until the next meeting. The purported reason given by the Mayor on the radio – that is, it would take more time for new members to get up to speed on the issue –appears irrelevant and disingenuous. 2. Whether a breach of this principle gives rise to ground for legally challenging the decision is complicated and unclear. While compliance with the principle is mandatory, the principle is "high level" and the courts may have some reluctance in invalidating the decision because of such a breach. 3. There may also be more direct administrative law grounds under the general decision-making provisions to challenge the decision but I haven't yet had an opportunity to run the ruler over them. Initiatively, the nature of the decision-making would at least raise suspicions about non-compliance with those requirements. 4. In any event, the last minute decision may provide a ground for challenging the outcome of the election itself: a. Section 99 of the Local Electoral Act allows the District Court to void any election if there has been "any irregularity in any proceedings preliminary to the voting" and that irregularity has materially affected the result. The District Court in Aukuso v Hutt City Council  DCR 322 gave a broad interpretation to the term "irregularity". It potentially includes improper conduct by the local authority which could influence the election or a breach of the principles in s 4 of the Local Electoral Act. b. In my view, the conduct of the Council is improper and arguably unconstitutional, largely for the reasons noted above. Although the existence of constitutional conventions in relation to local government is unclear, there is a strong case for arguing that there is (or, alternatively, should be) a convention that significant decisions should not be made by the local authority during the voting period. Otherwise, it undermines ratepayers voting rights. This is exacerbated by the fact that, I understand, people who have sought to change their vote today have not been allowed to do so. As central government has a specified polling day, and Parliament is formally prorogued, there is no direct comparator to the situation. However, there's some analogy to the caretaker government convention that says an outgoing government should not undertake any new policy initiatives. c. Further, a more direct challenge may be available, based on a breach of the principles in s 4 of the Local Electoral Act. Amongst other things, section 4(1)(b) sets out the principle that "all qualified persons have a reasonable and equal opportunity to… cast an informed vote". In my view, taking a significant decision such as this 90% of the way through a voting period undermines the ability of ratepayers to make an informed assessment about candidates. I think any reasonable person, stepping back from this issue and viewing it in the round, would be extremely concerned about the effect of such last-minute decision-making on the democratic process. That initiative assessment is often the best guide on its constitutional propriety. I doubt we've seen the last of this issue.