Stephen Franks: Super City an elected dictatorship

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Auckland mayor Len Brown and council chief executive Doug McKay are bosses, not firsts among equals.  Photo / Greg Bowker
Auckland mayor Len Brown and council chief executive Doug McKay are bosses, not firsts among equals. Photo / Greg Bowker

The Auditor-General is unlikely to fix Auckland Council member Cathy Casey's complaint that the council was kept in the dark on the V8 race subsidy. The law setting up the Super City deliberately created a presidential mayoralty and gave councillors no clear rights to information.

It certainly does not protect council officers who want to provide unbiased information to councillors against the wishes of their bosses, the chief executive and the mayor.

The law may have been drafted out of frustration with years of indecision fuelled by endless reporting and consultation as excuses for inaction. Perhaps the law's designers chose to give elected dictatorship a go instead.

Amazingly till now there has been little publicised protest at the constitutional barbarity of this structure. Without clear rights to the same information available to the executive they must monitor, councillors become spare wheels.

"Carping critics" who are also unavoidably ignorant are in no position to maintain the safeguards of democratic control.

Some have called the Auckland governance structure the corporate model. If so it is a poor copy. The company model is robust about directors' rights to oversee management. Directors have an almost unrestricted right to information from anywhere in the company. Even conflicts of interest create only a partial exception.

The Auckland mayor holds central power in a hybrid Westminster/presidential system without separation of powers. Unlike all other mayors in New Zealand he is not first among equals. He is the boss.

Auckland Council workers report to his chief executive (not the council) and some have been told their duty is to implement the mayor's vision.

All that may be a useful reform, but it is not obvious where representative democracy fits in. There is plenty of consultation, the lip service version of democracy that is drowning councils and ratepayers across New Zealand in empty process but doing nothing to entitle councillors to timely answers to their queries.

Worse, there is no equivalent to central government's State Services Commission code for state servants, or the parliamentary conventions that oblige officials to provide honest and impartial advice to MPs in a select committee, and protect them from senior wrath when they give it.

Current law requires councils to have a code of conduct for councillors. It should be extended to officers.

In New South Wales the equivalent model code requires officers to provide information to councillors on request.

Councillor Casey has done what oppressed councillors do across the land, and asked the Auditor-General for help. Citizens turn to the Ombudsmen.

Perhaps together those officers could become the third limb in a local government constitutional separation of powers, an equivalent to the "judiciary" with enforcement powers to balance the information in the hands of the new local presidents.

Perhaps they could help preserve healthy democracy. Sadly, their recent interventions have often been late and not effective. Ratepayers of Kaipara got no practical or timely help from the Auditor- General after complaining of non-compliance with the law. The Ombudsmen are overwhelmed with business and have not enough resources.

Auckland badly needs a constitutional upgrade. Version 2 should enshrine the right of councillors to information. It should protect and constrain council employees along the lines of the State Services Commission code that guides public servants and protects the impartiality of their service.

Auckland Constitution 2 should also require council consultants to certify their work to councillors. They are now a vital part of local government quality control.

With intense competition and Auckland being the major employer of many consultants, the temptation is too great for consultants to tell council officers (who control where the next contract goes) what they want to hear.

Share prospectus law deals with similar pressure. Expert names are used to persuade people to invest. So they must certify references to their work. That would deal with a problem my firm has seen recently in helping Auckland clients, where low-quality professional reports were described to councillors (and in public documents) as if they said more than they did, and leaving out the weasel exclusions in the actual reports.

Consultant reputations would be better protected against misuse if the consultants had to certify that "summaries, references and extracts of their reports are fair, balanced and properly informative for their intended purposes in the form and context in which they appear" and if they were liable for false or reckless certification, as company directors are.

Such constitutional upgrades could be in the Government's announced local government reform bills.

Let's hope Councillor Casey does not just wait for the Auditor-General fairy to give her x-ray vision. She could get alongside Councillors Fletcher, Wood and Cameron Brewer, who have been warning of this constitutional problem for some time, to get the upgrade under way.

Stephen Franks, a former Act MP, is a principal of the Wellington law firm Franks & Ogilvie.

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