KEY POINTS:
When we face issues that are immensely complex, important to the future, and require far-sighted and non-partisan thinking, we often turn to a royal commission to do the job. Think about genetic modification or our electoral system, both of which were the subject of royal commissions in the
last two decades.
Now Auckland's governance is the subject of a royal commission whose terms of reference and membership were announced on October 30.
How can we expect this royal commission to set about its task, and what opportunities will there be for input?
The commission will be chaired by a retired judge, Peter Salmon, QC, and Dame Margaret Bazley and David Shand will sit as commissioners. All three are highly experienced in dealing with public inquiries.
The first thing to note is that the commission's terms of reference are broad. They allow it "to receive representations on, inquire into, investigate, and report on the local government arrangements [including institutions, mechanisms, and processes]" that are required to maximise, in a cost-effective manner, the current and future wellbeing of the Auckland region and its communities, and the region's contributions to wider national objectives and outcomes.
The warrant lists a number of "relevant matters" regarding how Auckland is governed that the commission may take into account.
These include the collaborative arrangements between central and local government; ownership, governance, and institutional arrangements and funding responsibilities related to public infrastructure; and governance and representation arrangements.
The warrant even permits the commission to consider what changes to the boundary of the Auckland region are desirable.
To prevent re-inventing the wheel, the commission must take into account the findings of the recent inquiry into local government rates. And it is prohibited from inquiring into matters such as local government arrangements generally; central government agency and institutional arrangements; and the quantum of central or local government funding.
Royal commissions of inquiry are independent, quasi-judicial bodies. Once a commission has been established, the running of the inquiry is left to the commissioners, provided they keep within the terms of reference and comply with natural justice.
However, this commission will not do its work behind closed doors. It is required to undertake wide public consultation. Indeed, it must encourage people to express their views.
To facilitate this, the commission may publish discussion papers on any topic relevant to the inquiry.
While its warrant does not stipulate how consultation will occur, it is likely the commission will follow the model of the genetic modification inquiry. All submissions, evidence, relevant information and transcripts of hearings will be publicly available on the commission's website (except where confidentiality, as determined by the commissioners, requires otherwise). However, the commission will probably only allow the general public to make written submissions.
The act governing royal commissions provides for two ways in which people can be more closely involved in the inquiry, including by making oral submissions.
First, if a person satisfies the commission that she or he has "an interest in the inquiry apart from any interest in common with the public", she or he will be entitled to "appear and be heard at the inquiry".
You can establish such an interest if you can show a significant personal or private interest beyond that shared with members of the public, or that standing is in the public interest.
In the genetic modification inquiry, interested parties were entitled to be present at the hearings, be represented by counsel, make submissions on the scope and interpretation of the commission's warrant, present oral evidence, and call witnesses.
In addition, they could cross-examine other parties and/or their witnesses on their evidence (with the commission's permission), and make closing submissions. While members of the public had to monitor the media and website to stay informed of developments, interested parties were kept up to date by email.
A lesser degree of involvement can be granted under the act to any person who satisfies the commission that any evidence given before it may adversely affect his or her interests.
Once again, however, it is up to the individual or organisation to convince the commission that they deserve this status.
With a reporting date of December 1 next year, the commission will need to jealously guard its time and resources, and yet balance that against the need for Auckland's communities and businesses to thrash out the issues fully.
Inevitably some hard choices need to be made.
* Mai Chen is a lawyer and partner in Chen Palmer, public law specialists.
