David Hay for Mayor of Auckland

cool* Auckland: carbon zero by 2060 or sooner
www.heydavidhay.nz

21 February 2016
Mayoral candidate questions legality of secret Unitary Plan meeting

Mayoral candidate David Hay has today questioned the legality of Auckland Council’s decision to hold a controversial planning meeting in secret. He wants the reports presented by council officers to that meeting to be made public.

The controversial “out-of-scope” proposals for the Unitary Plan were made at a meeting of the Unitary Plan Committee on the 9th of December 2016. Parts of the meeting relating to the controversial proposals were held in a public excluded basis, under section 7(2)(g) which allows public exclusion in order to “maintain professional legal privilege”.

Mr Hay has questioned the basis for hearing the officers’ advice in secret both in principle, and on technical grounds.

“The agenda for the meeting says that the public should be excluded on the grounds that ‘the report contains legal advice’ ” said Mr Hay. “As a matter of good form, the wording of the Act should have been used; ‘to maintain professional legal privilege’.

“While this may seem like a trivial issue, it is actually very important.” said Mr Hay. “Council should never exclude the public, including the media, from a meeting where a policy issue is being debated, merely because the report has been prepared by a lawyer, or contains legal advice.”

“The government Cabinet Manual, in the absence of explicit advice from the Office of the Auditor-General or the Ombudsman, sets out that principle” said Mr Hay:

“A document does not automatically attract solicitor/client privilege merely because a lawyer prepared it or it is labelled ‘legally privileged’. Only those parts of a document that record legal advice (as opposed to other types of advice, such as policy advice) will attract solicitor/client privilege.” (section 4.61)

“The council has an obligation to receive policy advice, and to deliberate on it, in public. It must have a very good reason not to do that.” said Mr Hay. “Council could have protected its legal privilege, while still making the substance of the reports publicly available, by receiving legal advice in a separate report.”

“The Cabinet Manual recommends that ‘Legal advice should be clearly separated from policy advice, even if the two kinds of advice are provided in one document.’ ” said Mr Hay. “Legal advice to the committee could have be contained in a separate report. The public and media could have been excluded from that part of the meeting alone. The proposed plan changes could have been considered in public, and they should have been.”

“Today I am calling on the council to publicly release the secret planning reports that the Unitary Plan Committee received on the ninth of December 2015.” said Mr Hay. “These reports are of great public interest. The changes they recommend are significant policy decisions. The public and news media,should not have been excluded from that part of the meeting. The information contained in those reports, including the legal advice, should be made public.”

“The Council has no obligation to keep its legal advice secret” said Mr Hay. “Legal privilege exists to protect the client, not the lawyer. Privilege can be waived by the client. The council can choose to release any information or advice received from its legal advisors. The Unitary Plan Committee should have been advised of that. It could have voted on the matter of legal privilege.”

“I can assure the people of Auckland that, if I were Mayor of Auckland, this sort of thing would not happen on my watch.” said Mr Hay. “If it did, I would ask the Chief Executive for an explanation. I would instruct him, in very direct terms, to put it right and not to let it happen again. The council’s Standing Orders should be amended to ensure that elected members are fully aware of the legal basis for public exclusion from meetings and have the opportunity to vote down such recommendations.”

“Auckland Council can and should maintain the very highest standards of probity and compliance with both the spirit and the letter of the law.” said Mr Hay. “As a public servant with more than 25 years experience, I understand those principles and have always honoured them. I expect no less of the Auckland Council. Its actions in this case have been very disappointing.”

ENDS

© Scoop Media