I have reluctantly withdrawn the Judicial Review against the Rotorua District Council’s decision to seek a law change in Parliament to accommodate an undemocratic and unlawful representation model.
The first objective of this legal action was to ensure that Rotorua would have a free and democratic election in 2022 and that has been achieved.
On 6 May the Court set a timetable leading up to a one-day hearing in the Rotorua High Court on 4 August. Both parties had filed their main evidence and had co-operated at every stage of the proceeding, including an Agreed Statement of Facts. I was due to file a small amount of reply evidence on 22 July and Opening Submissions on 27 July. The Council’s lawyer was due to file their Submissions on 1 August and everything was ready for the hearing.
Predetermination of “initial” representation model
I believe that the evidence provided by the Council that demonstrated predetermination of Council decisions was particularly overwhelming and indefensible. Council admitted that they held four “Elected Member Workshops” between June and August 2021 during which they initially considered 12 representation models. These were whittled down to 8 models and then down to 3 models and finally down to 1 model. These are undeniably “decisions”.
It was this one model that Council staff “recommended” to the SP&F Committee in August and which was adopted by the SP&F Committee as their “recommendation” to Council.
It was this one model that Council decided would be the “initial” model that was put out for public consultation.
After the 2019 election the Mayor admitted that “We hold the majority too and that’s important.”
Had the hearing gone ahead I would have argued that the decision-making actually occurred in the secret “Elected Members Workshops” that the public and media were excluded from and that the Council meetings were mere “rubber-stamping” exercises by the “Mayor’s Majority” that confirmed the decisions that were predetermined in the Workshops.
The law is clear in this area:
The decision-maker [in this case the SP&F Committee] must also not allow another person [in this case the “Elected Members Workshops”] to have a decisive say in the matter, or on how to make the decision, or ‘rubber stamp’ the decision of someone else. If any of these things occur, the decision-maker may be said to have acted under dictation and the decision-making power would not have been properly exercised.
The name “Elected Members Workshops” is misleading. In their evidence Council provided a list of attendees of the relevant Workshops which showed that people who were not elected members of Council also attended these Workshops.
Some of the attendees of the Workshops are associated with Te Tatau o Te Arawa, including a number of people who are not Te Tatau’s representatives on the Council’s committees.
This would undoubtedly have been justified by the existence of the Te Arawa Partnership Agreement that Council has with Te Tatau o Te Arawa.
However, under the Local Government Act:
Principles relating to local authorities
- In performing its role, a local authority must act in accordance with the following principles:
(a) a local authority should-
(i) conduct its business in an open, transparent, and democratically accountable manner; and …
The secret Workshops fail to meet this principle.
Only the Mayor and the Councillors have decision-making powers.
The members of the Strategy Policy & Finance and Operations & Monitoring Committees who are not Councillors can only make recommendations, not decisions. They should not be present and voting at Workshops at which the Council is conducting its business and making decisions.
The persons associated with Te Tatau o Te Arawa should not be present and voting at Workshops at which the Council is conducting its business and making decisions.
In any event, even the Mayor and the Councillors can only exercise their decision-making powers in public meetings that have been publicly notified, with published agendas that are open to the public. They cannot make decisions at these Workshops.
Predetermination of “voter parity” models
The Council received 169 submissions from the public, 38% of which supported “equal suffrage” and the 3M-7G model. 17% supported a Rural Ward. Only 4% supported a “voter parity” model and only 2% supported the Council’s “initial” 2M:4G:4AL model.
On 19 October 2021 the Council held a public hearing for those who wished to make submissions in person. The Mayor admitted to the Local Government Commission that she had a “light-bulb moment” when the four “Ngati Whakaue Economic Entities” presented a submission in which they sought a “co-governance” model whereby the voters in the Maori Ward would have the same number of votes as voters in the General Ward. This is despite there being 21,700 people on the Maori roll and 55,600 people on the General roll.
The Council have admitted that on 21 October another “Elected Members Workshop” was held.
Council have provided a list of attendees of that meeting and once again it includes members of the Rural Community Board and Lakes Community Board and people associated with Te Tatau o Te Arawa.
Deputy Chief Executive Oonagh Hopkins told the Local Government Commission that:1
And again, just to step in on that one. As part of the overall process following the hearings, it was noted that the information that was coming out of those hearings and the very strong themes in the submissions, the Councillors, the Council, the Elected Members needed to have another forum.
As we said before, our forums are an opportunity where all of our elected members come to a table and have opportunity to go through all of the information and to set direction. That additional forum was set up and again all our members were able to be in attendance at that. And it was in that forum where a conversation was directed to the staff and the organisation to consider the feedback around parity and equality and why couldn’t there be equal numbers between the Maori Ward and the General Ward.
That was the clear and definitive message from that forum and from that forum we sought our legal opinion, went out and worked with producing a model that was lawful and met those requirements. All of that was then brought back to the Strategy, Policy & Finance Committee and then at that stage the Strategy, Policy & Finance Committee discussed and agreed to recommend to Council a 1:1:8 model.
(emphasis added)
As with first round of Workshops, the “clear and definitive message from that forum” amounts to a decision and demonstrates that the Council was conducting its business in secret and predetermining the next Council meeting in a secret Workshop with people present who do not have any decision-making powers.
The Agenda for the SP&F Committee of 16 November 2021 included a “staff recommendation” of two “voter parity” models being:
- the 1M:1G:8AL model that the Local Government Commission rejected; and
- the 3M:3G:4AL model that the Attorney General concluded:
The 1M:1G:8AL model particularly upset Te Tatau o Te Arawa who had widely consulted and wanted a 3 seat Maori Ward.
Nevertheless, the two “staff recommendations” were adopted with the assistance of the “Mayor’s majority” and this became the recommendation to Council.
On 19 November 2021 Council decided to adopt the two “staff recommendations” that had been recommended by the SP&F Committee with the assistance of the “Mayor’s majority”.
Co-governance, partnership and legality of the Te Tatau o Te Arawa Partnership
In 2015, despite significant public opposition, the Council entered into a “partnership agreement” with Te Tatau o Te Arawa.
At that time the Rotorua Pro Democracy Society Inc, the predecessor of the Rotorua District Residents and Ratepayers Associationobtained a legal opinion from one of New Zealand’s foremost experts in administrative and public law from one of New Zealand’s leading law firms, Russell McVeagh. Mr Butler summarised his concerns about the Te Arawa Partnership Model (TAPM) as follows:
2. In summary, we consider that there is a real issue in terms of the TAPM’s compliance with the Local Government Act 2022 (“LGA”) and the RDC’s actions under that statute and under administrative law, which could lead to a successful judicial review of RDC actions under the TAPM. Specifically, there is a good argument to be made that:
(a) the TAPM constrains the RDC’s powers to appoint committees in a manner inconsistent with the LGA’s provisions;
(b) the TAPM is not consistent with the provisions of the LGA and the Resource Management Act 1991 (“RMA”) relating to the Treaty of Waitangi (“ToW”) and Maori involvement in local governance; and
(c) the TAPM is not consistent with the LGA’s purposes relating to democratic local governance.
With the benefit of hindsight, Mr Butler’s assessment can now be seen in an almost prophetic light.
The Rotorua District Council Representation Review is a case-study that demonstrates that the Te Arawa Partnership Agreement, at least as implemented, is inconsistent with the Local Government Act and the principles of administrative law.
These are the arguments that I was keen to argue in the High Court, but was prevented from doing so.
Intervention of the Attorney General and the Court
On 10 June the Attorney General filed a Memorandum in which his Counsel argued:
Application of the Parliamentary Privilege Act 2014
6. There are serious questions about the jurisdiction of the courts to entertain this claim, given the terms of the Parliamentary Privilege Act. His Honour Justice Williams summarised the overall effect of ss 10 and 11 of the Act in Ngāti Mutanga O Wharekauri Asset Holding Company Ltd v Attorney-General:1
No Court may receive evidence or hear submissions about a Bill intended to (a) question the intention of the Bill or a person associated with it; or (b) invite the drawing of any inference about the meaning or effect of such Bill; or (c) seek some form of relief in relation to the Bill.
1 Ngāti Mutanga O Wharekauri Asset Holding Company Ltd v Attorney-General [2020] NZCA 2, [2020] 3 NZLR 1.
7. The Attorney-General’s intervention is appropriate given the constitutional and general public importance of the principle of non-interference in parliamentary proceedings.2 The exact application of the principle in the current case is complex, and Counsel submits that the Crown’s perspective on this matter of high principle would be of benefit to the Court. It would also assist the parties and relevant non-parties.
Despite a number of prompts from the AG and myself the Court was unresponsive. Finally the parties, together with the AG, filed a joint memorandum that led to a belated Judicial Teleconference on 21 July.
Both parties and the AG’s Counsel were in agreement and were ready for a hearing on 4 August and everyone was willing to start an hour early at 9:00am to ensure the AG’s Counsel had a couple of hours at the end of the day to make her arguments and the court could hear any replies.
However, without any advance notice, the Court unilaterally decided:
[8] Ms Todd for the Attorney-General advises that the issues that the Attorney-General seeks to raise will affect all of the causes of action pleaded by the applicant and if resolved in favour of the Attorney-General would dispose of the application for judicial review.
[9] The issues raised by the Attorney-General are appropriately determined prior to the Court hearing and determining the substantive judicial review application and it is apparent from counsel’s estimates that the time required to hear and determine the intervenor’s issue means that the one day hearing scheduled for 4 August 2022 will be insufficient to ehar both the intervenor’s arguments and arguments in reply as well as the submissions for judicial review. I am also satisfied that until the issues related to Parliamentary privilege are heard and determined it would be inefficient for the Court to embark upon hearing the judicial review, irrespective of whether the Attorney-General’s intervention is dispositive of the judicial review proceeding itself.
Despite my protests, the Court unilaterally cancelled the 4th August hearing that both parties had spent a considerable amount of time and effort preparing for.
Decision to withdraw the Judicial Review
At face value, it seems inconceivable that the privilege that Parliament has granted itself to be immune from judicial review of its internal processes could possibly extend to a local government (in this case the Rotorua District Council). After all, it is the Parliamentary Privilege Act 2014 that the Attorney General proposes to rely on, not the “Local Government Privilege Act”, which doesn’t exist.
The addition of a “preliminary hearing” would have doubled the cost of the judicial review.
Even if I had successfully argued that Parliamentary privilege did not apply to a local government a decision would have been reserved and would probably not have been forthcoming until late August or early September. A hearing of the judicial review would likely have been scheduled in the new year at the earliest. By then two things will have happened:
- The Maori Affairs Select Committee will have reported back to Parliament (before 6 October); and
- Rotorua will have had a free and democratic election in accordance with the principle of equal suffrage (8 October).
The Select Committee may recommend that the Bill be rejected. The newly elected Council may decide to withdraw the Bill from Parliament. In either case the judicial review would be “moot” and so there would be no hearing.
In light of all of the above, the only sensible option was to withdraw the judicial review.
My Recommendations:
My recommendation to the incoming Council is that they:
- decide to withdraw the Bill from Parliament; and
- reconsider whether the TAPM is consistent with the Local Government Act and the principles of administrative law. I don’t believe it is.
I believe this tainted-decision making process is the source of the river of bad decisions that have emanated from this Council, particularly over the last three years. With the benefit of hindsight the public can now see that co-governance has been a disaster for Rotorua. Rotorua needs to return to proper democratic governance.
I would like to thank the Rotorua District Residents and Ratepayers Associate (RDRR), especially Reynold Macpherson who has been most supportive. I also would like to thank the 24 people who signed affidavits in support of these proceedings, including former Rotorua Mayor Grahame Hall and a number of prominent Rotorua business people.
Robert Lee