Local government watchdog Council Watch has expressed concerns about the appointment of a government official to advise Christchurch City councillors, and believes it could raise serious constitutional issues.

Following a meeting between Local Government Minister Nick Smith, Earthquake Recovery Minister Gerry Brownlee and the Chief Executive and councillors of Christchurch City Council the government appointed Sir Kerry Marshall MBE as a ‘Crown Observer’ to help Christchurch City Council to “address its governance issues and help ensure it is functioning well so as to support Christchurch's earthquake recovery”.

A Council Watch spokesperson, Jim Candiliotis, is questioning the statutory authority of the Crown Observer and says the lack of legislation supporting the appointment is concerning.

“The Minister has the power to do one of four things if he feels the council are not performing: appoint a review authority, replace the Council with a Commissioner, appoint a person to undertake a review or some other specific function of the Council, or call a new election,” says Mr Candiliotis.

“These powers are clearly outlined in the Local Government Act and are accompanied by clear requirements to follow if used.

“I believe the appointment of this so-called ‘Crown Observer’ is not derived from the LGA and therefore questions should be asked as to the legality and transparency of such an action.”

In fact, it appears the Minister has borrowed from the Education Act 1989.  Under S.195C of that Act the Minister of Education may appoint a Crown Observer to the council of a Tertiary Institution.  The summary issued by the Beehive late yesterday (Friday) was similar in wording and structure to this section of the Act, making it seem like a cut-and-paste effort.

Government delegates responsibility to local authorities to manage affairs on behalf of citizens.  These citizens pay a tax – called a “rate” – directly to that local authority.  Under the current structure Councils have a level of kawanatanga (governorship) – they stand apart from central government.

Mr Candiliotis says this point seems to have been forgotten lately, “The old adage applies that there should be no taxation without representation.  The council collects rates, we elect the councillors to manage those funds.  Where does the Minister get the right to interfere with the operation of a duly elected local authority aside from the provisions in the Local Government Act?”

He is further concerned about the legal position of allowing Sir Kerry access to meetings that have been deemed “publically excluded” by councillors.  In such an instance all members of the public must leave the room and any notes or minutes taken are rarely if ever published or released under the Local Government Official Information and Meetings Act.

“If this ‘Crown Observer’ holds no official status under the LGA or any other Act or Regulation then for all intents and purposes they are a member of the public.  Thus, by what authority can he remain in a meeting held under public exclusion?”

“What is the status of Sir Kerry when it comes to officially-held information?  Is he required to keep a record under the Public Information Act?  Can a citizen or a media organisation ask for his notes?  Can his actions or advice be investigated by the Office of the Ombudsmen?  All we have been told is that the Minister has attached a person to the very heart of Christchurch City’s municipal organisation, with very little accountability to the ratepayers of that city.

“I am keen to know whether the advice provided to Minister Smith by his parliamentary staff covered these highly sensitive issues.  The people of Christchurch are very interested in what’s happening in the Council and would no-doubt love to be privy to what goes on behind the scenes.  For all the rhetoric about improved communication that we’ve seen over the past week, it seems an odd thing to place an observer in the council chambers who reports to only one person – by rights there are 400,000 local ratepayers and citizens he could also report back to.”

 References

1.       Media statement from Christchurch City Council(Tony Marryatt refunding pay rise): -

http://www.ccc.govt.nz/thecouncil/newsmedia/mediareleases/2012/201201272.aspx

2.       Media release from Minister Smith’s office (“Crown Observer to assist ChCh City Council”): -

http://www.beehive.govt.nz/release/crown-observer-assist-chch-city-council

3.       Crown Observer proposal: -

http://www.beehive.govt.nz/sites/all/files/Crown_Observer_Proposal.pdf

4.       Power to appoint a Crown Observer to the council of a tertiary institution: -

http://www.legislation.govt.nz/act/public/1989/0080/latest/DLM184194.html

5.       Powers of the Minister under the LGA2002: -

http://www.legislation.govt.nz/act/public/2002/0084/73.0/DLM174076.html

http://www.legislation.govt.nz/act/public/2002/0084/73.0/DLM174077.html

http://www.legislation.govt.nz/act/public/2002/0084/73.0/DLM174078.html

http://www.legislation.govt.nz/act/public/2002/0084/73.0/DLM174079.html