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4 AUCKLAND CITY HARBOUR NEWS, AUGUST 7, 2013
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Battle over the right to know
When you vote for someone to be
your voice at the Auckland Council,
do you expect them to be blocked
from doing what they and you see as
Top level Auckland Council
executives are battling with a senior
councillor who wants access to a so-
far undisclosed report. It deals with
legal aspects of the vexed unitary
plan report which is certain to
become a major public issue well
before polls close on October 12.
The inner sanctum rumpus began
when veteran local body person
Sandra Coney asked council officers
for a copy of something which
sounds extremely dull but which
has become very interesting in its
absence -- a legal review of the coun-
cil's controversial unitary plan.
The plan is a road map on Auck-
land's slow march towards facilities
for a population of a million.
First outcome: Council chief plan-
ning officer Dr Roger Blakeley said
a fairly elaborate no'' -- that even
as a member of the council planning
committee Ms Coney had no right to
access. In familiar local body jargon,
he said: There is a principle here
about the respective roles of govern-
ance and management. Manage-
ment of any council has the respon-
sibility to ensure that high quality,
evidence-based, legally accurate
advice is given to the governance
The governance members (coun-
cillors) have the responsibility to
make decisions. You quote several
clauses from the Local Government
Act relating to the obligations of
councils to conduct their business in
an open, transparent and
democratically accountable manner.
But that refers to the process of
decision-making by the local auth-
The issue here is about a legal
review as a technical input to
ensure accuracy of advice that
comes to elected members.
Your request appears to confuse
those clear lines of responsibility.
You appear to be asking for a report
which is part of management's res-
ponsibility of ensuring that the
advice that comes to the governance
body is thoroughly tested and accu-
rate. Accordingly, we will not be
releasing the legal review.''
Not surprisingly, Sandra Coney
wasn't put off. She has always been
a challenging opponent in causes
she believes in -- and takes no
prisoners. Local government officers
would do well to study her CV. She
had a major role in the campaign in
the 1980s exposing National
Women's Hospital secret experi-
ments on patients, the infamous
Unfortunate Experiment'', later
confirmed by the Cartwright Com-
mission of Inquiry.
Ms Coney has been equally hard-
working, inquiring and constructive
during her 12 years representing
Waitakere -- as a city and Auckland
regional councillor, particularly in
defence of the environment, notably
her much-loved Waitakere Ranges.
Few local body members read
their meeting's advanced agendas
as closely and as well as she does.
And few are as consistent and as
vigorous as she is on her right -- and
your right -- to know. I know
because we sit alongside each other
on the Waitemata District Health
Board and often share a viewpoint.
Our placement is coincidental --
based solely on the alphabet, Booth
after Abbott and before Coney.
Unfazed by that first refusal, she
pressed on: You seem to think you
can judge what is necessary for me
to govern. This is fundamentally
wrong. The legislation charged elec-
ted people with the responsibilities
and accountability to govern well,
not the management.''
The council heavies gave Roger
Blakeley support. Chief executive
Doug McKay and general counsel
Wendy Brandon backed his refusal.
It's a management matter, not
governance. We have a duty to
ensure advice we give is legally and
The legal advice will also be pub-
licly available as part of the section
32 analysis that the council is requi-
red to provide to the minister for the
environment before the proposed
unitary plan can be notified.
The information at dispute here
is not designed to assist your
decision-making, nor was it com-
missioned for that purpose, as I
have previously advised you, and I
decline your request to access it.''
The Coney reaction: I would
have thought a second tier manage-
ment decision to decline a councillor
access to documents held in the
organisation would be of interest to
you. I have been following the situ-
ation of Christchurch City Council.
There the council seems to have got
itself into trouble by relying on the
reassurances of the CEO.
Without wishing to make a dir-
ect parallel, my request should be
interpreted as the wish of an elected
member to see for herself, rather
than rely on managers. I think
there are lessons for all elected
members in the position that the
elected Christchurch City Council
finds itself in, or rather, has put
itself in. In representing my con-
stituents and the public, I should
not be expected to rely on managers'
views or advice, rather than pri-
mary reports, and I am surprised
you would think this is adequate ...''
And she reached for a legal opin-
ion -- from lawyer and local govern-
ment expert Dr Grant Hewison.
His opinion: As a member of the
Auckland Plan committee consider-
ing the unitary plan, she was enti-
tled to have access to the legal
review, Dr Hewison said.
He backed this with a House of
Lords judgment that ruled: Coun-
cillors should have access to infor-
mation necessary to properly dis-
charge their duties under what is
known as the need-to-know test'' -- a
principle ruled on by the House of
Lords and applied by the Ombuds-
man in New Zealand.
Dr Hewison said that as a coun-
cillor Ms Coney had a duty to assure
herself the plan was legally correct.
In light of the need-to-know prin-
ciple', in our opinion as a member of
the Auckland planning committee
you are entitled to have access ...
assisting yourself to be sure that
the plan is legally correct ... this is
a proper discharge of your duties.''
Chief executive Doug McKay: I
disagree with Grant Hewison ...
Roger, Wendy and I have considered
each of your requests and signed off
on the responses. It is not a debate
I wish to swap interpretations on ...
If you remain unhappy with this
position then I suggest we take it to
the Ombudsman as it is an import-
ant point of principle for us and
clearly for you too.''
Interestingly, former Ombuds-
man Sir Brian Elwood once defined
the need-to-know test as a council-
lor being entitled to all relevant
information on which to make infor-
Ms Coney couldn't have said it
better. Significantly, in October, she
will be a candidate for the Waita-
kere Ranges Local Board and not
the Auckland Council.
When I asked if the unitary
report issue had been a factor in
that decision, there was a long
silence, then ... It's true that I've
struggled with the council culture
...'' Reading those emails, who could
blame her? It's the council and rate-
Pat Booth's email address has
changed to pat.booth@fairfax
media.co.nz. Due to a problem with
his email over the past weeks some
readers' emails may not have gone
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