15 September 2011

Nationalisation of RWC party central?

Much has been made of Murray McCully’s so-called “nationalisation” of the waterfront for RWC party central, through the exercise of reserve powers under the special legislation for the Rugby World Cup. 

The legal position is, however, very different.  While some regulatory approvals for standard event-based activities may be fast-tracked through a special process under the RWC 2011 (Empowering) Act, the RWC Act does not give the Minister the ability to “take control” of the waterfront.  The Minister’s statutory role is reactive only, namely, considering applications made to and assessed by the independent RWC Authority. Any ability for the government to “take the lead” on the party central activities must have been garnered collaboratively, and does not come from the exercise of power under the RWC Act.

In any event, the applications presently being made urgently are conjoint applications from the Ministry of Economic Development and the Auckland Council’s events team.  These applications were, I understand, in the process of being prepared collaboratively before the Minister’s announcement. And the fast-tracked approvals currently being sought are largely mundane.

Finally, I think McCully may well be forced to relinquish that power to sign-off the applications to some other minister, because his actions may have predetermined the outcome and created a disqualifying conflict of interest.
First, let’s be clear about what the RWC Act allows and what it doesn’t.

The RWC was passed late last year to provide for special procedures for regulatory approvals for RWC activities and liquor licences. An independent RWC Authority (chaired by former judge, Sir Bruce Robertson and joined by a number of experts) was constituted to consider applications.

For some time, anyone seeking approval or consent (or declaration of permitted activity status) for a RWC activity that could not reasonably be obtained in time under the usual processes could apply through the special fast-tracked process.

Such applications were still subject to a formal, but expedited, participatory processes.  They were determined by the RWC Authority, rather than the local authority or agency usually responsible.  Numerous such applications have been granted by the RWC Authority.

The legislation also provided for an even more expedited process “in circumstances of urgency that, for good reason, were not foreseen”.  A higher threshold was required (necessary to “secure public safety”, to “avoid seriously compromising” the RWC, or to “provide support for” RWC organisers). 

A different, and more expedited, process was provided for. Rather than being determined by the RWC Authority, the RWC Authority only assesses the application and makes an recommendation to the Minister for the RWC.  There is no obligation to subject the application to a participatory process.

The decision about whether the approval should be granted then falls to the Minister for the RWC.  He must consult the Minister for Economic Development and other relevant Ministers.  He must take account of (but is not bound by) the recommendation of the RWC Authority.  His decision is final.

(If the application is for a declaration that something is a permitted activity, the Minister formally recommends to the Governor-General that regulations be promulgated confirming the activity is permitted.  But otherwise the application for consent is merely approved by the Minister.)

That’s all.  They are the only “special” powers under the RWC Act.  The Act does not provide any power to assume control over or nationalise events.  The Minister’s role is reactive, as ultimate decision-maker, once an urgent application is made. And then only after the independent RWC Authority has scrutinised it.

Secondly, we can see these powers in action by looking at what has been applied for in the most recent application.  The application is a joint one, between the Ministry of Economic Development and Auckland Council’s events unit.  MED is seeking permission to use Captain Cook Wharf for fanzone events and Auckland Council are seeking to extend the existing liquor licence over the Wharf. 

The MED application is totally mundane.  As the Coastal Plan limits the activities that can be undertaken on port land, permission is needed under the Resource Management Act to engage in non-port activities, to install temporary structures like viewing screens, small stage facility, food and beverage kiosks, toilet facilities and temporary fencing, and (only by way of caution) to exceed noise controls.  This is standard event stuff.  But the usual RMA process wouldn’t enable it to be considered in time, hence the resort to the special expedited process under the RWC Act. 

The same goes for the Auckland Council’s application to extend its existing liquor licence.  (As an aside, I don’t see any special power to expedite liquor licence applications or for an applicant to apply to vary the condition of the licence.  But I stand corrected.)

The RWC Authority is considering both applications following a very brief period for public submissions and is holding a public hearing today.

Thirdly, it’s clear from the application to the RWC Authority that an application is being made to Auckland Transport / Auckland Council to also temporarily close Quay Street to provide access and 

The Council has the power to temporarily close roads under s 342 and Schedule 10 of the Local Government Act 1974. (I think, given the Auckland Council reforms, these powers have been vested in Auckland Transport, but I haven’t traced it through the legislation.)

If closure is needed for an event, public notice of intention to close the road is needed.  If closure is “during a period when public disorder exists or is anticipated”, no notice is needed. Again, standard stuff. And no need to resort to the special RWC Act.

Finally, returning to the Minister’s special power to approve urgent applications under the RWC Act.  It’s a basic principle of administrative law that decision-makers exercising statutory powers must keep an open mind and must not predetermine the outcome of applications (especially where the legislation directs them to consider certain matters and consult other people).  That ensures applications are properly considered and there is no conflict of interest.  In rare cases, the legislation might implicitly authorise or contemplate a certain decision-maker making a decision even when they have a conflict of interest, but I don’t think that applies here. 

Now, there’s a live question about whether McCully’s directives and public statements mean he has compromised his ability to personally consider the urgent applications.  It’s fair to say, I think, his conduct and statements mean he is now incapable of independently and dispassionately considering the very applications he has directed and championed. 

In such circumstances, s 7 of the Constitution Act 1986 allows another Minister to exercise that power (see also cl 2.70(c) of the Cabinet Manual).  It will be interesting to see if this happens.

- Local Government Act 1974        

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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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