The Watchdog

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Will Mayor Len Brown deny Auckland Mayoral candidate Penny Bright ‘speaking rights’ and call the Police as he did at the July 2010 Manukau City Council meeting?

12 August 2010

Manukau City Council
Mayor Len Brown

Manukau City Council CEO
Leigh Auton
(As per my telephone discussion this afternoon with the Manager for Democratic Services, Warwick McNaughton)

‘Open Letter’ Request for Speaking rights at the Manukau City Council Meeting on Thursday 26 August 2010:

A) I am requesting ‘speaking rights’ in accordance with Manukau City Council Standing Order 1.0 Deputations, 2.13.1.1, at the Manukau City Council meeting to be held on Thursday 26 August 2010:

1.0 Deputations

“2.13.1.1

Deputations may be received by the Council (or any committees thereof) provided an application for admission setting forth the subject has been lodged with the Chief Executive Officer at least fourteen (14) clear days before the date of the meeting concerned and has been subsequently approved by the Mayor or Chairperson. The Mayor or Chairperson may refuse requests for deputations which are repetitious or offensive or are not within the scope of the role of functions of the Council.”

B) My topic is :

The right of the public to participate in the democratic process of local government, by applying for ‘speaking rights’, to address Council, or Committees of Council, under the ‘Deputations’ provision of Standing Orders, whose ‘underpinning’ legislative basis is the Local Government Official Information and Meetings Act 1987.

http://www.legislation.govt.nz/act/public/1987/0174/latest/DLM122283.html?search=ts_act_Local+Government+Official+Information+and+Meetings+Act+1987_resel&p=1#DLM122283

“Purposes

4. The purposes of this Act are—

(a) To provide for the availability to the public of official information held by local authorities, and to promote the open and public transaction of business at meetings of local authorities, in order—
(i) To enable more effective participation by the public in the actions and decisions of local authorities; and

(ii) To promote the accountability of local authority members and officials,—
(a) and thereby to enhance respect for the law and to promote good local government in New Zealand:
(b) To provide for proper access by each person to official information relating to that person:
(c) To protect official information and the deliberations of local authorities to the extent consistent with the public interest and the preservation of personal privacy.”
____________________________________________________

1) ‘Democracy’ is not a ‘spectator sport’.
Mere ‘attendance’ at Council meetings is NOT ‘participation’.

2) A mechanism through which members of the public can ‘participate’, is set out in ‘Standing Orders – Deputations’ which cannot be arbitrarily and unilaterally altered on the whim of either the Mayor or Council Officers.

3) Please be reminded of the following:

www.manukau.govt.nz/SiteCollectionDocuments/04-1267%20Standing%20Orders%202004.pdf

Standing Orders (2004)
Minute Number: CL/JULY/1267/04

Standing Orders adopted under Schedule 7 of the Local Government Act 2002 which provides:

(1) A local authority must adopt a set of standing orders for the conduct of its meetings and those of its committees.

(2) The standing orders of a local authority must not contravene the Act, the Local Government
Official Information and Meetings Act 1987, or any other Act.

C) My reasons for requesting ‘speaking rights’ on this matter:

1) Quite frankly, I am deeply concerned at the lack of understanding by yourself, Mayor Len Brown and senior Manukau City Council Officers, of the democratic rights of the public, as outlined in the above-mentioned Local Government Information and Meetings Act 1987.

2) I was even more appalled to be advised by Kim Wichman, Rima Taraia, and Annie King, that after the (unlawful – in my considered opinion) denial of speaking rights for the Manukau City Council meeting held on Thursday 29 July 2010, that nine Police Officers were called, after the above-mentioned women had left the Council Chambers of their accord, after being requested to so do by a security guard employed Manukau City Council.

www.manukau.govt.nz/SiteCollectionDocuments/Council%20minutes%2029%20July%202010.pdf

2. DEPUTATIONS – 283-289 KIRKBRIDE ROAD MANGERE
(see Appendix “A”)
Portfolio Area : Not Applicable
Significance of Decision : Internal Procedure
Reporting Unit : Democratic Services
Reporting Officer : Janette McKain, Committee Advisor
Ward : Citywide

MINUTE NO. CL/JUL/743/10 – HIS WORSHIP THE MAYOR/CR GARY TROUP

That pursuant to Standing Order 2.13.1.1, a deputation from Paitai Taringa and Henry Herman from the Cook Islands Taokotaianga Charitable Trust be heard for a maximum of ten minutes with a further ten minutes allowed for questions.

CARRIED
Cr Daniel Newman entered the meeting at 5.10pm.
Cr David Collings entered the meeting at 5.14pm.

His Worship the Mayor required a member of the public to leave the meeting due to disruptive behaviour.

The meeting adjourned at 5.20pm with His Worship the Mayor leaving the meeting.
The meeting reconvened at 5.26pm with the following present:
His Worship the Mayor, Councillors Troup, Newman, Quax, Burrill, Filipaina, Williams, Koka, Collings, Ross, Taylor, Wichman, Brown, Stewart and Walker.”
______________________________

3) I also note that the Minutes of this Manukau City Council meeting of July 2010, are not a true and accurate account – in that they do not state that Mayor Len Brown declined a deputation request for ‘speaking rights’ from Kim Wichman and Rima Taraia on 19 July 2010.)

4) Having been subjected to the same (unlawful) denial of speaking rights at Auckland City Council, and defending the public’s right to ‘open, transparent and democratically accountable’ local government to the point of arrest on 22 occasions, and successfully defending myself in Court (21 -1 to me vs the Police and Auckland City Council), with all due respect, I believe it is fair to say that I have knowledge and experience in this area of NZ Local Government law that is unmatched.

a) In this respect, I fail to see any real difference between either yourself, Mayor Len Brown and Mayor John Banks, in terms of an effective abuse of lawful Mayoral power and authority.

b) Except that in the case with Mayor John Banks – the Police no longer attend Auckland City Council meetings to act as Auckland City Council’s ‘security guards’.

c) These above-mentioned 22 arrests have been a considerable waste of public money and Police resources, particularly when the Police have continuously lost in Court.

d) (Please be advised that the only case that I have lost, has now been lodged with the United Nations Human Rights Committee, given that I have now exhausted all legal avenues to appeal my criminal conviction for trespass at the Auckland Town Hall on 23 November 2005, at a time arguably the most public of all public buildings was open to the public.)

4) What is of particular concern to me, are the following reasons given for the declining of ‘speaking rights’, which have no lawful basis in either ‘Standing Orders’ or the underpinning legislation upon which these Standing Orders are based.

———- Forwarded message ———-
From: Warwick McNaughton
Date: Mon, 19 Jul 2010 16:29:32 +1200
Subject: Request for deputation
To: kim tetua

Hi Kim

I have discussed your (and Rima’s) requests for deputations with the mayor.

Your initial requests to speak again about the Kirkbride Road house and Manukau Water have been declined because you have already spoken on these subjects.

Your requests to speak about the “Manukau Corporation” and Cook Islands Investment Corporation and about pacific island representation on the Auckland Council are also declined.

The mayor’s concerns include the aspect that the monthly council meeting is not a public forum.

Deputations to council should normally be about matters that the council has on its agenda and will be deciding.

Furthermore it is likely that the council does not have the power to make decisions around such things as pacific island respresentation on the Auckland Council. It may be better to make these representations through the Pacific Island Advisory Committee.

Naku noa na | Regards

Warwick McNaughton
Manager Democratic Services
______________________________________________________

5) Those reasons for declining ‘Deputations’ are NOT stated in :

‘Manukau City Council Standing Order
1.0 Deputations

“2.13.1.1

Deputations may be received by the Council (or any committees thereof) provided an application for admission setting forth the subject has been lodged with the Chief Executive Officer at least fourteen (14) clear days before the date of the meeting
concerned and has been subsequently approved by the Mayor or Chairperson. The Mayor or Chairperson may refuse requests for deputations which are repetitious or offensive or are not within the scope of the role of functions of the Council.”

a) With all due respect, Mayor Len Brown, you do not have the authority to just ‘make it up’, and apply ‘discretionary authority’ for which there quite simply is no lawful basis.

b)What concerns me even more, is that you, Mayor Len Brown,
(unlike myself), are a qualified lawyer.

6) To make matters worse – the second request for a ‘Deputation’ at the upcoming Manukau City Council meeting on 26 August 2010, emailed by Kim Wichman on 6 August 2010, was also declined:

a) ‘Deputation’ request:

“Kia orana Len, I wish to apply for deputation for the next Council Meeting on the 26th August 2010 for status and clarification over the succession planning process in regards to the Memorandum of
Cooperation with Manukau City Council and the Cook islands government, as custodian over the Memorandum of Cooperation for the Cook Islands Indigenous peoples it is pivotal that(Aotearoa) C.I. landowners are informed on this and how that information is disseminated.

I wish to speak on this matter as the Auckland City transition will be binding on the wider Auckland Cook Islands community.
Look forward to your response.”
__________________________________

7) The reasons given for the (unlawful) declining of this ‘Deputation’, for the second time, to Kim Wichman, by yourself, Mayor Len Brown:

From: Warwick McNaughton
Date: Sun, 8 Aug 2010 13:47:38 +1200

Subject: RE: Deputations

To: kim.tetua@gmail.com
Cc: Leigh Auton , Len Brown
, Faama Viliamu
<Faama.Viliamu@manukau.govt.nz

Kia orana Kim

His Worship the Mayor acknowledges receipt of your request for a
deputation. He has declined it on the basis that it is not within the scope of the current council.
The question of the on-going status ofthe MOU is certainly a good question, however the mayor and the councillors are not in a position to be able to answer it or to change the legislation relating to it, neither is it a matter that is before the council by way of an agenda item.

He has therefore asked me to research it and to get back to you.
I suspect that the answer to your question is firstly a legal one.
The legislation relating to the Auckland Council makes provision for matters such as bylaws, statutory policies and the district plan to carry over to the new council. The status of a formal MOU is less clear. I will therefore ask our Legal Counsel to provide a legal opinion on this.

If it turns out that the MOU does not carry over then you may wish to have some information about the proposed arrangments for enegagement with the Pacific community that is in the new Auckland Council legislation. I can provide you with this if you would like to have it.

I will also respond quickly to your other email about speaking rights.

Meetings of the council are meetings of the mayor and councillors (who also have staff present to advise them).

They are not public meetings in the sense that the public can participate.

The Local Government Official Information and Meetings Act 1987 requires meetings to be open to the public to attend. "Attendance" does not mean speaking rights.

That Act goes on to state in section 50 that if the presiding member
believes a member of the public is likely to prejudice the orderly
conduct of the meeting then the presiding member can require that person to leave the meeting. If the person refuses to leave then "any constable, or any officer or employee of the local authority, may, at the request of the person presiding at the meeting, remove or, as the case may require, exclude that member of the public from the meeting."
www.legislation.govt.nz/act/public/1987/0174/latest/DLM123099.htm
l

It is not necessary to use trespass proceedings. The law (the Act above) allows an employee to actually remove the person, however our process is to call our security guard first and if the person still
refuses to leave the security guard will call the police.

Part of my role is to look after the democratic process.

In a demnocracy the people are free to elect their representatives who then make decisions on behalf of the community.

The elected representatives have the right, and the duty, to have regular meetings to consider the needs of the community.

They are required by law to adopt standing orders and to observe those standing orders in terms of the conduct of their meetings.

Those standing orders are quite formal at meetings of the full council. If a councillor refused to abide by the standing orders and continued to speak out of turn when ordered by the mayor to stop speaking then the mayor would have the ability to require that councillor to leave for contempt.

It is not appropriate for councillors to offend against the standing orders – it is certainly not appropriate for members of the public.

The standing orders around deputations provide for a speaking time set by council resolution followed by questions from councillors.

At your last deputation you continued to debate the matter after your speaking time had expired.
You may also be interested to know that the standing orders require of councillors that they do not ask formal questions at a council meeting unless they have been unsuccessful in getting an answer through officers. So for councillors there is an expectation that if they have a query, such as your query about the status of the MOU, they will get advice from officers in the first instance.

There is also a requirement on the council to consider the views of the community. When a specific issue comes up the council may conduct a consultation exercise for example. There are many ways in which the opinions of the community can be heard.

Another way is through public forums. At Manukau we have encouraged public forums at community board meetings and often a number of members of the public will attend a community board meeting to speak at the public forum.

We do not have a public forum at the council or council committee meetings. Some other councils do have this. If you have attended other councils you may have thought that when you spoke at Manukau that you were taking part in a public forum.

That would not have been correct – a deputation is a formal request to the council. A deputation usually relates to a matter on the agenda about which the council is to make a decision and the deputation requests the council to decide it in a particular way. It is not a platform for speaking about matters in general, whereas a public forum may well be.

In terms of issues relating to the pacific community the council has had a Pacific Island Advisory Committee in existence for many years. This is another avenue for members of the pacific community to raise issues.

I will get back to you with the legal opinion on the on-going status of the MOU.

Naku noa na | Regards

Warwick McNaughton
Manager Democratic Services

__________________________________________________

8.Please be reminded that Kim Wichman did NOT have ‘speaking rights’ as part of the ‘Deputation’ which addressed the earlier Manukau City Council 24 June 2010 meeting:

www.manukau.govt.nz/SiteCollectionDocuments/Council%20minutes%2024%20June%202010.pdf

“MINUTE NO. CL/JUN/621/10 – HIS WORSHIP THE MAYOR/CR COLLEEN BROWN

1. That pursuant to Standing Order 2.13.1.1, a deputation from Annie King be heard for a maximum of ten minutes with a further ten minutes allowed for questions.

2. That pursuant to Standing Order 2.13.1.1, a deputation from Rima Tamarua (sic Taraia) be heard for a maximum of ten minutes with a further ten minutes allowed for questions.
CARRIED
The deputations addressed the council and answered questions.”
____________________________________________________

9) Again, in my considered opinion, the reasons given for declining ‘speaking rights’ to Kim Wichman under ‘Deputations’, have no lawful basis under ‘Standing Orders’ or the underpinning above-mentioned Local Government Official Information and Meetings Act 1987:

“Manukau City Council Standing Order
1.0 Deputations

“2.13.1.1

Deputations may be received by the Council (or any committees thereof) provided an application for admission setting forth the subject has been lodged with the Chief Executive Officer at least fourteen (14) clear days before the date of the meeting
concerned and has been subsequently approved by the Mayor or Chairperson. The Mayor or Chairperson may refuse requests for deputations which are repetitious or offensive or are not within the scope of the role of functions of the Council.”

D) I look forward to commonsense and lawful due process being applied, and my request for speaking rights being accepted at your earliest convenience.

I also respectfully suggest that you reconsider your declining of ‘speaking rights’ to Kim Wichman, if you have not already done so.

Yours sincerely,

Penny

Penny Bright
Media Spokesperson
Water Pressure Group
Judicially recognised ‘Public Watchdog’ on Metrowater, water and Auckland regional governance matters.
“Anti-corruption campaigner”

AUCKLAND MAYORAL CANDIDATE

waterpressure.wordpress.com

Ph: (09)846 9825
021 211 4 127

waterpressure@gmail.com

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August 13, 2010 - Posted by | Auckland Mayoral campaign, Human rights

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