Tuesday, May 17, 2022
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Secret Rotorua bill discussion ‘unlawful’ – legal experts

  Public Interest Journalism funded by NZ on Air

Rotorua mayor Steve Chadwick was “unlawful” when she decided a discussion on Rotorua’s controversial Māori wards bill would be held confidentially, two public law experts believe.

The council says the move was lawful and in line with standing orders.

Chadwick says she raised the bill as an urgent item for confidential discussion to “provide an update and seek guidance from councillors”.

It follows the council’s announcement yesterday it had decided to “pause” its pursuit of the Rotorua District Council (Representation Arrangements) Bill, which would change electoral rules for the district.

The decision was made in the meeting’s public excluded section. It came after councillor Peter Bentley resigned when the mayor ruled the bill would be discussed in private.

On Thursday afternoon, after the meeting, the mayor released a statement that the council had agreed to “pause” the bill.

Some councillors now want to share how they voted and have revealed a motion to withdraw the bill was narrowly defeated with a casting vote from Chadwick.

Rotorua Lakes Council has also revealed the updated cost to ratepayers of pursuing the bill is more than $74,000.

Public law expert and lawyer Graeme Edgeler told Local Democracy Reporting, in his opinion, there were several issues with the proceedings in Thursday’s council meeting.

He said Chadwick should put to a vote whether to add the urgent item to the agenda and to have the discussion in confidential.

He believed Chadwick was also incorrect when she told the meeting she did not need to put moving the discussion into confidential to a vote as she could rule it as chairwoman.

In the meeting Chadwick cited the reason for the discussion being held in secret as “to enable us all as council, together, to have a free and frank discussion in response to the Attorney General’s request for information needed to develop policy work”.

Edgeler said, in his view, that was not a lawful reason to put a meeting into confidential as “free and frank discussion” was explicitly excluded under the Local Government Official Information and Meetings Act.

“I don’t believe they [the council] lawfully excluded the public, I don’t believe they ever tried to lawfully exclude the public and the reason they gave to exclude the public isn’t a lawful one.”

Victoria University of Wellington public law expert Dr Dean Knight broadly agreed with Edgeler.

In his opinion: “The unilateral actions of the mayor don’t seem to square with legal requirements for local authority meetings.”

Rotorua councillor Sandra Kai Fong said from her perspective the mayor’s statement about the decision to pause the bill did not tell the “full story”.

Kai Fong said there was “robust discussion” in the public-excluded part of the meeting about whether to withdraw or pause the bill and the statement did not include the mayor using her casting vote to vote down withdrawal.

In her view, it was an “important point”. “The public deserves to know what the full story is and [in my view] that press release doesn’t give confidence to the community.”

Kai Fong said she moved a motion to withdraw the bill, which was seconded by Fisher Wang and supported by councillors Raj Kumar, Reynold Macpherson and Tania Tapsell.

With Chadwick, deputy mayor Dave Donaldson and councillors Trevor Maxwell, Mercia Yates, Merepeka Raukawa-Tait voting against it, the vote was split.

Chadwick used her casting vote as chairwoman to vote down the withdrawal and later pass the decision to pause the bill.

Kai Fong said that in the confidential meeting she challenged the discussion being confidential as there was “greater public interest” in the transparency of the “reasons and rationale” of councillors’ decision-making.

Councillor Reynold Macpherson said, in his opinion, the mayor had “acted tyrannically” by making the discussion confidential.

Fisher Wang said the bill had created “a lot of distraction and angst, not just locally but nationally” and he wanted to “leave it and move on”.

“We’re putting too much time, energy and money into this bill that a lot of us around the table don’t agree with anymore.”

Wang and Macpherson both confirmed Kai Fong’s account of the voting in the meeting.

On Friday afternoon, Chadwick told Local Democracy Reporting she believed some councillors had “breached confidentiality” and were “positioning themselves for their own political agendas rather than working for the good of the community”.

“The bill is not my bill. The decision [to pursue it] was made by elected members with just two voting against.

“It appears some councillors are now losing their nerve.”

She said she raised the bill as an urgent item for confidential discussion to “provide an update and seek guidance from councillors”.

“I wanted to give them the opportunity to have an open conversation. My use of the term “free and frank’ wasn’t intended as the reason under the [Act] to go into confidential.”

She said it wasn’t unusual for councils to later release the outcome of matters dealt with confidentially but it did not “include a rundown of the confidential discussions and proceedings”.

Local Democracy Reporting asked the council if it would release a full description of the discussion and if so, when.

Acting council chief executive Craig Tiriana said the bill was raised for “update and discussion as opposed to a decision”.

He said the standing order it pertained to was 9.13 – “discussion of a minor matter not on the agenda”.

“The resolution later in the meeting to go into public-excluded to deal with all confidential matters, which included the item relating to the bill, was moved, seconded and carried with no alterations proposed.”

In the meeting, which is available to view on the council’s Youtube page, the mayor moved a motion to move the council into a public excluded session and specifically mentioned “two items” – minutes from a previous meeting and recommendations from other committees.

Tiriana would not clarify if the voting record attested to by Macpherson, Kai Fong and Wang was accurate as it was “dealt with in confidential”.

Tiriana said pursuing the bill had cost $74,014.54 to date, including $71,831.30 in legal fees, $200 in social media advertising, and $1983.24 in public notices.