Hard News by Russell Brown

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Hard News: Still not all that Super?

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  • Russell Brown,

    Go.

    Auckland • Since Nov 2006 • 22747 posts Report Reply

  • Michael Robinson,

    I heard someone on National Radio's 9 to Noon programme some weeks back discussing CCOs and how they can be controlled by detailed Statements of Intent. Unfortunately, I didn't have time to listen to the full discussion, so missed the end of it.

    Could someone tell me how a detailed enough Statement of Intent would not form a suitable democratic control over the behaviour of a CCO?

    Wellington • Since Apr 2007 • 8 posts Report Reply

  • Andre,

    What was Bridgecorp's statement of intent?

    New Zealand • Since May 2009 • 350 posts Report Reply

  • recordari,

    Could someone tell me how a detailed enough Statement of Intent would not form a suitable democratic control over the behaviour of a CCO?

    That would depend on who wrote it, wouldn't it?

    There's some discussion of this here

    The discussion document says “Effective working relationships will be essential to the success of this governance model” (page 3). We agree with this statement as a high degree of collaboration will be required to make it work. However, this will require some formal communication structures in place to ensure this will happen. What mechanisms will be put in place to ensure that the proposed CCO’s are responsive to local needs and processes? Clear reciprocal commitments, expectations, accountabilities and reporting need to be built into Local Board Plans as in CCO’s ‘statement of intent’.

    And a sample Statement of Intent here.

    It might make it more transparent, but I don't see how it will make it necessarily more democratic.

    AUCKLAND • Since Dec 2009 • 2607 posts Report Reply

  • Michael Robinson,

    Andre: I'm not sure how that answers my question.

    Bridgecorp clearly didn't have a controlling Statement of Intent in the same way that an SOE or CCO does -- what it did have was directors currently charged with Security Act violations, and I'm fairly confident that that is an exception, not a rule, with a CCO.

    recordari: It would indeed.

    Being from Wellington, I'm not sure I know what the proper model for Auckland is -- but I suspect at the moment there's a lot of heat being generated by assumptions that "all corporate bodies are evil by nature", which I don't think is the case.

    Having said that, I agree with NSCSS (in that provided link) when they talk about "formal communication structures". But should such structures be in the Act, or should they be set up by the Council?

    Wellington • Since Apr 2007 • 8 posts Report Reply

  • Russell Brown,

    Hide sounded odd at the press conference. All that "it took me a while to get my head around the changes" stuff. Was he sulking?

    Auckland • Since Nov 2006 • 22747 posts Report Reply

  • Sacha,

    I heard someone on National Radio's 9 to Noon programme some weeks back discussing CCOs and how they can be controlled by detailed Statements of Intent.

    Michael, that was probably the interview with Peter McKinley from AUT's school of local government, discussed in another thread here (maybe someone else can find it). Other experts disagreed with his optimism, and I believe even he subsequently changed his mind a bit, but I do not have a concise single reference to point you towards.

    It's worth noting that major government agencies like Treasury recommended against putting Transport functions for instance into a CCO. The government ignored that just as they did most of the Royal Commission's careful recommendations - notably about the major structural elements and the checks and balances they embodied.

    I haven't read the detail reported back today, but it sounds like little has changed. The proposed arrangements smooth the path for future privatisation of large chunks of operations like water and transport but do nothing much to ensure coordination - which is one of the supposed justifications for this whole expensive exercise in the first place.

    Ak • Since May 2008 • 19680 posts Report Reply

  • Michael Robinson,

    @Sacha

    Michael, that was probably the interview with Peter McKinley from AUT's school of local government, discussed in another thread here (maybe someone else can find it). Other experts disagreed with his optimism, and I believe even he subsequently changed his mind a bit, but I do not have a concise single reference to point you towards.

    Thanks, that's about what I was looking for.

    Wellington • Since Apr 2007 • 8 posts Report Reply

  • Sacha,

    I suspect at the moment there's a lot of heat being generated by assumptions that "all corporate bodies are evil by nature", which I don't think is the case.

    I disagree. The arrangements as proposed before today would fall foul of standard corporate good governance too - and are being imposed on Auckland in a way that is distinct from every other local body area. Yet.

    Ak • Since May 2008 • 19680 posts Report Reply

  • Russell Brown,

    Being from Wellington, I'm not sure I know what the proper model for Auckland is -- but I suspect at the moment there's a lot of heat being generated by assumptions that "all corporate bodies are evil by nature", which I don't think is the case.

    No, I don't think so either. I never bought the hysteria about Metrowater -- I could see why it was hived off from the general rates take, and appreciated that capital work that had been delayed by councillors for decades was being done.

    But I'm with Sacha. The way the CCOs were set up has been weird and unacceptable, and it can only really be read as a prelude to privatisation. And even that wouldn't be such a problem if those concerned were only honest about it.

    Auckland • Since Nov 2006 • 22747 posts Report Reply

  • Andre,

    Putting our utilities under private control doesn't make any sense knowing that we were overcharged $2.5 billion for power in the last five years - and that was by SOE's in the main.

    New Zealand • Since May 2009 • 350 posts Report Reply

  • recordari,

    For some reasons the terms 'stakeholder' and 'shareholder' seem important distinctions here. Corporate Governance from a Shareholder perspective is quite different from that of the 'Stakeholders', at least in this instance. One wants affordable, clean water when they turn on a tap, and the other wants to know how much they can justify charging per litre. In and out.

    I'd be interested to see what Joel Cayford makes of it. He pre-empted it a bit on his blog yesterday.

    Not really familiar with this 'spatial plan' proposal.

    This, from Herald, doesn't fill me with feelings of democracy in action though.

    "Opening the door to the privatisation of Auckland's assets - especially that of water delivery - is also another choice Mr Hide has made," Mr Clendon said.

    "Mr Hide's reassurance that water will not be privatised has a hollow ring given the introduction of a Bill that amends the Local Government

    Act to allow for contracts of up to 35 years," Mr Clendon said.

    AUCKLAND • Since Dec 2009 • 2607 posts Report Reply

  • Richard Love,

    But what kind of idiot would write the original draft that didn't require this kind of basic transparency anyway?

    The kind of idiot that knew that the original draft would go down like a cup of cold sick. And so thought they could make this change, and then point to it and say "see we listened to you during the consultation process".

    Or alternatively the sort of idiot that thinks "commercial confidentiality" (whatever that is) trumps citizens right to know about the decisions that affect their city.

    Either kind of idiot would write an original draft like that.

    Since Jun 2009 • 25 posts Report Reply

  • Russell Brown,

    Or alternatively the sort of idiot that thinks "commercial confidentiality" (whatever that is) trumps citizens right to know about the decisions that affect their city.

    Not to mention "trumps citizens' right to know what's being done with hundreds of millions of dollars of their rates money every year." That's the big one, I think.

    Auckland • Since Nov 2006 • 22747 posts Report Reply

  • Kumara Republic,

    "Commercial sensitivity" has become the private sector's Area 51.

    The southernmost capital … • Since Nov 2006 • 5415 posts Report Reply

  • Just thinking,

    Can anyone cut & paste The Press Perspective from today, on Ecan?

    It has the brilliant line on the Henry VIII clause. Which means any unhelpful LAW from the RMA can be dispensed with, as unhelpful wives were by Henry VIII previously.

    Trusts are used to obsfuscate lines of Democracy and Responsibility, at least here in Christchurch.

    Of course each new business/trust requires directors and directors fees!

    This house of cards built on Trusts is going to come crashing down, and I hope soon. A Trust needs to be a Trust not a front to hide: responsibility, money, debt etc.

    Putaringamotu • Since Apr 2009 • 1158 posts Report Reply

  • Hilary Stace,

    Last year I heard David Shand talk about the Royal Commission on Auckland Governance, of which he was a member. The Royal commission's findings - which were arrived at after a thorough and open process -all seemed very sensible and workable, with the only omission a recommendation on STV or other proportional voting system. Of course that was all thrown out and we have since seen a peculiar mix of hobby horses, political ideology and patchwork without any apparent coherent substance or direction.

    Somewhere down the track there will be another royal commission type process and the cycle will start over. It's a bit like the history of Auckland's public transport system going back several decades. Something is all planned and ready to go and then there is a change of direction (government, council etc), so it isn't implemented and a couple of decades later the problems come to a head and another plan is made, and ...retracted.

    Not that anywhere else in NZ seems to do these things any better.

    Wgtn • Since Jun 2008 • 3196 posts Report Reply

  • philipmatthews,

    Can anyone cut & paste The Press Perspective from today, on Ecan?

    It has the brilliant line on the Henry VIII clause. Which means any unhelpful LAW from the RMA can be dispensed with, as unhelpful wives were by Henry VIII previously.

    Personally, I'm really fond of the quote from The Castle. Link here and text below.

    ECan Act staggering use of legislative power

    ANN BROWER - The Press

    Of the recent changes at ECan, sacking the council is the least offensive.

    The ECan Act shows a breathtaking use of parliamentary power, and could be a game-changer in New Zealand environmental law.

    Imagine a situation where a government gives a minister the power to ignore the law without asking Parliament.

    The Government did just that in section 31 of the ECan Act - formally called The Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010.

    Section 31 grants the Minister for the Environment, Nick Smith, special powers to decide where and when New Zealand environmental law applies in Canterbury.

    Associate Professor of Law Andrew Geddis described this as a "Henry VIII clause", by which the minister may disapply the Resource Management Act without asking Parliament. This gives Smith the power to let the appointed ECan commissioners ignore inconvenient sections of the Resource Management Act (RMA), just as Henry VIII beheaded inconvenient wives.

    Allowing the Minister for the Environment to summarily avoid applying sections of environmental law in Canterbury until he calls another regional election is so exceptional that it bears no further comment.

    Next, imagine a situation where one team changes the rules of the game at halftime because its side might lose.

    Sections 46 to 61 do just that to Canterbury water conservation orders, often called the national parks of rivers.

    A water conservation order preserves outstanding ecological, recreational or cultural characteristics of a river, and is affirmed in the RMA.

    The ECan Act section 46 suspends that part of the RMA until the next regional election in Canterbury (and there are no guarantees when that might be).

    Under the old water conservation order rules that still apply in all other regions, decision makers had to consider a river's outstanding characteristics before considering its economic potential. The ECan Act reverses the order, so use is more important than protection.

    The Hurunui water conservation order had been through council hearings, and Fish & Game's Environment Court appeal was scheduled to begin on May 30.

    In other words, it was halftime for the Hurunui.

    Changing the rules of the game at halftime is as unpalatable to the rule of law as it is to sports.

    In a case in 2000, Justice Thomas considered changing the rules at halftime to be constitutionally objectionable because it violates the principle of equal application of the laws.

    Finally, imagine a situation in which Aucklanders have the right to appeal their regional government's decisions, but Cantabrians do not.

    Section 52 of the ECan Act does just that for water conservation orders and regional plan decisions.

    Until the next ECan election, only the appointed commissioners will hear scientific evidence, and this evidence will never be cross- examined.

    This beheads the Environment Court, but again, only in Canterbury.

    The suspended jurisdiction of the Environment Court means those interested in Canterbury water have lost a long-standing right of substantive appeal that citizens of other regions still enjoy.

    The right to appeal the substance of a decision is very different to, and much broader than, the right to appeal on a point of law.

    This selective beheading of the Environment Court seems anathema to the guarantee of natural justice in New Zealand's Bill of Rights Act 1990.

    Different treatment under the law is just as constitutionally unpalatable, if not more so, than changing the rules when your side is losing.

    This is why the special powers of the Henry VIII clause, the changed rules for the water conservation orders, and the suspended jurisdiction of the Environment Court raise far more constitutional alarm bells than sacking the regional council.

    How can Parliament pass bills that its own Ministry of Justice deems constitutionally unpalatable?

    New Zealand's Constitution Act 1986 recognises Parliament has "full power to make laws".

    Professor of constitutional law Philip Joseph describes this power as "unlimited and illimitable."

    Illimitable parliamentary power places great faith in what Justice Baragwanath called the "good sense of parliamentarians".

    If Parliament wishes to violate the Bill of Rights Act, it may, if the actions are "demonstrably justified".

    Whether the ECan Act passes the "demonstrably justified" test is in the eye of the beholder. Because Parliament is sovereign (or all- powerful ), it subsumes the beholder's eye.

    So the beholder is legally irrelevant, but can be politically pivotal.

    A grand old theory of politics predicts that, in a battle between irrigators and environmentalists, the relative size and strength of the groups does not matter as much as which side the public takes.

    The stronger side usually seeks to minimise the scope of the debate so as to engage the public as little as possible.

    But public engagement is the weaker side's only hope.

    When the fight breaks out, the crowd plays the decisive role.

    Although Parliamentary sovereignty is absolute, what is legally possible might be politically untenable because it attracts the crowd's attention.

    But because Parliamentary sovereignty is absolute, Cantabrians lack firm constitutional recourse.

    Cantabrians are left to sputter that wonderful line from the Australian movie The Castle, where in an early courtroom scene the hopelessly inept but ultimately triumphant small- town solicitor summarises his argument by claiming: "There is no one section; it's just the vibe of the thing. And, uh, no, that's it. It's the vibe."

    Whether or not Parliament overstepped its admittedly porous constitutional bounds with the ECan Act, The Press reports almost daily on a growing sense of betrayal and unfair treatment among Cantabrians.

    It seems that the proverbial fight has broken out, and the crowd is taking sides.

    Herein lies the irony of the ECan Act. Suspending both regional elections and appeals to the Environment Court clearly minimises the scope of debate over crucial water issues by eliminating many of the players from the field.

    However, these actions have attracted attention from many who had never noticed before.

    Parliament can do as it pleases, but while parliamentary actions perceived as unfair might escape judicial rebuke, they might attract public opprobrium.

    This public opprobrium can be more damaging to a coalition government and to the legislation itself than judicially imposed change. Witness the Electoral Finance Act 2007.

    Although the ECan Act might leave a bad taste in the mouth constitutionally, it is legal because Parliament is sovereign.

    But politically, that bad taste might come back to haunt the Government, the ECan Act, and Canterbury water itself.

    * Ann Brower is a senior lecturer in public policy at Lincoln University.

    Christchurch • Since Nov 2007 • 656 posts Report Reply

  • Sofie Bribiesca,

    I knew this was sick. I again want to know why is there a transition agency in the far North. A friend selling land had to deal with a Transition Agency he had never heard of before.It used to be the Far North District Councill, but a Transition agency exists? Pete Hodgeson (sp ??) is persevering. I'm watching Parliament tomorrow.
    Aside from that, someone said tonight, if you had a question to JK, what would it be? Any suggestions ? I have email :)

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Joshua Arbury,

    My feeling is that this is definitely a step in the right direction. The removal of clause 38(3), which would have make Auckland Transport completely unaccountable, is a huge improvement.

    Some effort seems to have been made to give the local boards a bit more power, but it's still really up in the air.... surprisingly so actually. I do wonder why the government is so reluctant to just legislate the local boards some powers to shut people up. I mean it's not like that'd be the end of the world?

    I still have concerns about whether the CCOs will be subject to public scrutiny. The NZ Herald article says that they'll have to have their meetings in public - a change from the original bill - but I'm not convinced from reading the bill itself.

    More thoughts: http://transportblog.co.nz/2010/05/24/transport-cco-more-accountable-but-still-secretive/

    Auckland • Since May 2009 • 236 posts Report Reply

  • Graeme Edgeler,

    The Royal commission's findings - which were arrived at after a thorough and open process - all seemed very sensible and workable, with the only omission a recommendation on STV or other proportional voting system.

    This is simply false. A number of the Royal Commission's recommendations were [trying to think of some quaint phrase] complete tosh.

    They proposed having councillors who weren't elected, with people in the central city not having a right to vote for a councillor at all, and others voting out of proportion to their numbers.

    I had ideas, at one time, of taking many of the idiotic proposals the Royal Commission suggested and writing them up as my own offensive prescription for Auckland governance to howls of PAS outrage.

    But I was busy and the opportunity passed.
    =)

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Joshua Arbury,

    You're right Graeme, the Royal Commission's proposal was certainly flawed in many respects. From memory it has 6 local councils and nothing at all underneath them, so potentially the most local council that you'd have would end up being bigger than your current city council... with community boards being history.

    That said, the Royal Commission's report was probably the most comprehensive study of Auckland's problems in decades, and I hope that it doesn't just become the biggest door-stop ever. There is much useful information in it to inform Auckland's future spatial plan, and other planning documents.

    Auckland • Since May 2009 • 236 posts Report Reply

  • Craig Ranapia,

    But I'm with Sacha. The way the CCOs were set up has been weird and unacceptable, and it can only really be read as a prelude to privatisation.

    Bullshit, Russell -- sounds more like a ridiculous level of central government paranoia that shouldn't have been indulged, even though what passes for local body politics in Auckland is a toxic mix of Greek tragedy and French bedroom farce. You deal with what you've got and take up drinking later.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Sofie Bribiesca,

    but it's still really up in the air...

    I think it is as simple as, their way or the highway. The concept or dream is/has been there for years. This government gives a bit, takes a lot, probably cos it's their turn. There really is no surprises.I really think they are on a trend that does not require people power. Our opposition to mining is just an inconvenience.It just requires other ways to go about the same objective.So they pulled it off by nobody knowing how any MP thinks about mining ,at the same time, nobody from National, Act, or Maori have shown any impression of Aucklanders.Who said they care about how Aucklanders feel? That is just process.That is what I suspect is what is going on. I really don't think this government is out to dous, just think they don't are if we suffer on the way.Key is a great front man for this. There is always another politician to take flak. It must be sooo Crosby Textor.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Christopher Dempsey,

    Wearing my elected rep hat...

    Could someone tell me how a detailed enough Statement of Intent would not form a suitable democratic control over the behaviour of a CCO?

    For the simple reason that words on paper mean diddly squat when it comes to action, and even more so when there's no big stick to wave at the said CCO about not following the SOI.

    You can have SOI's for Africa but really, they won't be worth the paper they are written on; warm bodies directing officers to do X (and not A as envisioned by the SOI) is what counts. That explains why a great deal of men, straight white men of a certain age, are keen to be on the board of the transport CCO.

    Whipping off said hat...

    Parnell / Tamaki-Auckland… • Since Sep 2008 • 659 posts Report Reply

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