Local Government (Auckland Transitional Provisions) Amendment Bill

Before starting discussion on the provision itself can I join with my colleague Su’a William Sio in acknowledging the fifth anniversary of the tragedy at Pike River. I had the occasion at that time to go down and visit the families. I know the absolute tragedy that that represented for them—the loss of their loved ones, the 29 men who put up their tickets going into the mine and never came out to collect them. I acknowledge also the tragedy that there has never been closure for those families—those bodies remain in the mine. So today as we debate this bill we are also thinking of those families 5 years out and would want to express our condolences to them for their loss, and hope that the measures that were put in place will stop any further avoidable tragedy, which is exactly what happened at Pike River.

As we get into Part 1 of the Local Government (Auckland Transitional Provisions) Amendment Bill, which contains the substantive amendments, I want to make the point that it would really have been good to test out the provisions that are set out in Part 1 at a select committee, so that we could get feedback from those parties that are most immediately involved in this process. The tragedy of this debate in urgency at 9.45 in the morning is that we are debating measures that we have never had the chance to test against the experts in the field, the people who should have been here in Parliament to give their view on the changes that are being proposed.

Auckland Council members should have been heard before a select committee hearing so they could spell out what their views were on it. I know that they are generally in favour of the changes that are being recommended. We should have had David Kirkpatrick, the chair of the Auckland Unitary Plan Independent Hearings Panel, before us to explain how that process had worked and whether these are precisely the measures that are needed to facilitate the timely and effective hearing of the submissions being made on the draft unitary plan. We should have had the chance to hear from the officials from the department. They are in the Chamber, but they cannot answer our questions here. However, they could have answered our questions before a select committee. That is why we have select committee hearings.

These are significant changes. By and large I am in support of the changes, but rather than support them blindly without having heard the arguments around them, I would like to have tested those arguments and questioned the officials before a select committee. I note that my colleagues from the Green Party are opposing this bill and they are opposing this bill not so much because they oppose the substantive provisions but because they oppose the process.

What we have not been told, and what the Minister in the chair, Mr Lotu-Iiga, may be able to tell us this morning, is why we are having urgency. I know that on the surface we are having urgency because it will be really good to get this bill through before Christmas so that the amendments can be implemented. But my question is slightly different from that, Minister. My question is this: if the Minister, the Hon Nick Smith, was able to announce what the bill was doing and the bill was drafted on 16 September—more than 2 months ago—why was it introduced yesterday at 10.30, I think it was, at night? Why is the management of this House so bad that the introduction was left so that we could not have the normal procedure of looking at the provisions of this bill before a select committee? That is a straight question. It deserves a straight answer.

The bill was drafted and the Minister announced it months ago, but now it is being pushed through under urgency and we do not get the chance for a proper select committee process to make sure we have got it right. That is bad process. There is no one in the Chamber who could stand up and justify having urgency as good parliamentary process. It is not. Mistakes happen. They are not picked up. The public is not given the chance to have their say. We heard members of the Government wax eloquent about the importance of this hearing process so the public could be heard. What an irony. What a contradiction, when we are debating something where the public has not been allowed to be heard. That is wrong. Everybody in the Committee knows that it is wrong, and because we did not have had that select committee—

I call Chris Hipkins.

Thank you very much, Mr Chairman—that is an interesting call. I am very happy to take a call on this Local Government (Auckland Transitional Provisions) Amendment Bill. I will be a little slower standing up next time.

I do want to just begin my remarks, though, by picking up some of the comments that some of the National members made in their contributions in the first and second readings last night, where they were talking about how important this bill was to ensure that the public got to have their say. They were waxing lyrical about the importance of committee processes and the public hearings and public submissions process and how important that was. I did think that that was somewhat ironic, given that this very bill, which they claim is going to enhance those processes, is going through Parliament without any such scrutiny itself—without any such public submissions process—without really any good reason.

Why could the Government not have simply done this using regular sitting time? This is not something that necessarily would languish for a long time in a select committee. It still could have gone through the regular legislative process. With a bit of competent management on the Government’s part—and I suspect that that was the biggest barrier that it faced in doing this properly—it could have actually got this through within a reasonable period of time and still had the democratic process respected and adhered to. There are very few bills that go through this House that are not improved through having a select committee process, and often the select committee process allows us to pick up what seemed to be minor or trivial things in the drafting of a bill that actually turn out to be quite substantial.

Given that we have ended up having to amend legislation yesterday that went through under urgency—we have amended it again under urgency, because there were errors in it that were not picked up when it went through under urgency the first time—I think that this legislation certainly could have been quite significantly improved, or maybe it could not have been, but certainly we will never know because it did not go through that process. But it is possible that we will end up having to come back and amend it.

Anyway, Part 1 of the bill deals with the substantive amendments, and the first one that I want to talk to is reducing the quorum required for hearing sessions from three members to two members. That may seem like, you know, a rather inconsequential amendment to many people, but the difference between having three people hearing your submission and two people hearing your submission can actually be quite significant. It can actually make quite a difference, and it can certainly make a difference to the submitter’s sense of having been heard. The Labour Party is supporting this bill through because we agree with the intent of the bill, but I think that this is something that we should certainly consider and tease out a little bit more as this debate progresses.

The whole point of having a process like this is to ensure that people feel that they have been heard. No such process like this is ever going to result in everybody being happy with the outcome, because consensus on many of the issues that we are talking about will be almost impossible to achieve, but people are more likely to accept the outcome if they feel they have been heard. So the first question I think the Committee needs to turn its attention to is: if people feel the process is being truncated and they are not getting their full chance to be heard by a full committee, will they end up feeling that they have been heard? I think, you know, that that is a legitimate question to ask.

There are some questions around logistics. Reducing the quorum required from three members to two members, of course, does not mean that there cannot be more members on the panel, and I would hope that in most instances there would still be more members than that on the panel. The quorum is the minimum required. As we know from select committee hearings, although a quorum may be two or three members for a small select committee, there are often six members present hearing public submissions, and that is a very positive thing. So it is important to remember that a quorum is the minimum required, and that for administrative purposes, this will probably make life easier in terms of scheduling the meetings, but I would hope that the people involved will take their responsibilities quite seriously and ensure that they attend as many of these hearings as possible. Therefore, members of the public, when they are making their submissions, will be heard by more members than that.

This bill also allows the possible number of appointed Auckland Unitary Plan Independent Hearings Panel members to increase from seven to 10, excluding the chairperson. It is kind of interesting because on the one level we are lowering the minimum number required, but increasing the maximum number required. With regard to my initial comments about people needing to have the sense that they are being heard, it is quite possible that they will be heard by—[Bell rung]

Chris Hipkins.

It is quite possible that they will end up—[Interruption] It is an excellent, excellent judgment on the part of the Chair. It is quite possible that they will end up being heard by more people if they end up having a full panel of 10, excluding the chairperson. I would quite like to know, however, why the chairperson is excluded from that calculation. If the maximum number is currently seven plus the chairperson, why move to 10 plus the chairperson? What is the justification for having the chairperson counted separately from the overall number of people involved in the hearings? I would quite like to hear the rationale for that from the Government.

The bill enables the hearings panel to make recommendations on the proposed plan in stages rather than in one final report, after hearings are completed on a particular topic, if it chooses to do so. My reading of this—and again I would seek some clarification from the Minister on that—is that the panel can give progress reports, which it can carve off particular sections of the plan to give focus to at a given time, and that that may in fact speed up the process, or at least give more certainty and clarity to the people who are affected by certain parts of the plan, if that makes sense. I just want to check that my understanding of that is correct and that actually what this means is that the plan itself can be progressed, not as one plan but as strands of the one plan, and that that might actually speed up the process. That seems to me to be quite a sensible thing to do.

I would like to get some context from some of the other members who may be speaking in this debate who have a little bit more knowledge of the Auckland planning process and of some of the contemporary issues that are being dealt with in that planning process. What some of those issues in Auckland might be that would be carved off and dealt with in smaller chunks, rather than in the overall planning process and final report-back, I do not have a sense of, so I would be interested in hearing from either the Minister in the chair, Peseta Sam Lotu-Iiga, preferably, or from the other members who are involved in this particular process.

As I said, I am not too familiar with the specifics of Auckland, but I am certainly familiar with the processes of local government around my own area, around the Wellington region. I do not agree with Chris Finlayson, who said that that debate is completely irrelevant because nothing ever happens in Wellington. I think that probably says more about his contribution to the wider Wellington debate. But I do think that these processes can be difficult for members of the public to navigate. If people want to have a say in the overall direction of their city, then simply saying “Well, here’s the process. Here’s the whole plan. What do you think about it?”, could be quite a daunting prospect.

However, if the third amendment—which I am speaking to, which allows the panel to make its recommendations in stages—also allows the panel to hear particular parts at a time and pick off particular issues at a time, that potentially will make this process more accessible to members of the public. They will be able to focus their attention in on submitting on the issues that they know about and that they care about, and they will not end up being overwhelmed and distracted by a whole lot of things that are not of concern to them and that are peripheral to their areas of expertise and knowledge.

Having participated in other local government processes of a similar nature, I can say that I think that could potentially be quite welcome. As I have said, certainly I have seen people participating in the planning processes of local councils. They go along with a particular issue that they care about, and then someone will ask them questions about a whole lot of other issues that they did not submit on and do not really care about, and they find the process quite baffling and overwhelming. If there is a way to ensure that that does not happen and that their contribution can actually be adequately heard and can be appropriately targeted, it can make a difference, and that is ultimately what this process is all about. Local government is local.

💬 Grant Robertson: Ah!

Well—

💬 Phil Twyford: Well, it used to be.

It used to be local—it used to be local. But local government should be local—perhaps I should put it that way. Therefore, the more participation from the grassroots, from the ratepayers, and from the citizens the better, and the better that the final decisions and the ultimate plan that come out of the end of this process will be.

💬 Grant Robertson: He doesn’t believe in central control.

I do believe in a certain amount of central control—

💬 Grant Robertson: Only when he’s the whip.

—particularly when it comes to parliamentary processes, but—

In my first contribution to this debate, and addressing my remarks to Part 1, may I first also join with my colleagues in remembering the fifth anniversary of Pike River and how the events of that day shocked the nation, stopped us in our tracks, and have, to some extent, reshaped our nation.

As with all major events, you always remember where you were when they happened. I happened to be standing on a grass verge in Mana, waving a sign in support of my colleague Kris Faafoi. Of course, none of that mattered. The most important thing was what was happening on the West Coast. But at least one of the good things that emerged post that was getting my colleague Kris Faafoi into Parliament.

Following on from my colleague Su’a William Sio, who talked about good process, the thing that is really the most disturbing about this piece of legislation, which on the face of it looks relatively minor, is that it is about good process. It is actually about bad process and fixing bad process. There are some significant questions that the Minister can and needs to answer. I have got a couple of them to pose in this contribution.

The public should be aware that this Government has made a habit of passing shoddy, rushed legislation under urgency, with no select committee scrutiny. Another trend has been to truncate the select committee process. There are too many pieces of legislation that are going through this kind of process. As a result, you end up with unscrutinised law, and you end up coming back and having to fix it, which is what is happening here. This Government claims that it is transparent, but nothing really could be further from the truth when you look at the sheer number of pieces of legislation that pass through so quickly that they are riddled with errors and mistakes.

My comments specifically relate to clause 6 in Part 1, which is amending the part on the right of appeal to the High Court on questions of law. It replaces section 158(6). According to the departmental disclosure statement, it is: “A minor and technical amendment … to fix an error in the drafting of the principal Act relating to the procedural requirements for the filing of appeals on questions of law with the High Court.”

My question to the Minister is what the legal implications are of this. Given that we do not have a regulatory impact statement, we do not have the advice from parliamentary counsel, and all we have is a departmental disclosure statement and the amendment has been described as minor and technical, what are its implications in law? I would ask the Minister in the chair, the Hon Sam Lotu-Iiga, during his contributions on Part 1 of the bill to tell the Committee whether or not there has been a legal opinion provided on this particular clause, clause 6, which makes the change that “Notice of the appeal must be filed with the High Court, and served on the Auckland Council, no later than 20 working days after the Council notifies the matters …”.

Given the impact and the import of the principles behind this piece of legislation and given that Auckland is our biggest city, the processes that are being set out in law under the unitary plan are significant and have significant impacts. By making that change, surely there must be some kinds of legal implications. I think the Committee needs to know what they are. If they have not been sought, then the Committee needs to know why not. I also want to make reference to clause 8—

Kia ora. Ngā mihi nui ki a koutou. Kia ora. I rise to oppose this bill, the Local Government (Auckland Transitional Provisions) Amendment Bill. I am sadly and reluctantly declining to answer the member Chris Hipkins’ challenge. He asked whether any member in this Committee on either side who is an expert on the Auckland Unitary Plan could stand and make a contribution. I do not claim to be an expert on the unitary plan; as a former Aucklander, though, I know the city is an amazing, lovable city. It is one of the most livable cities in the world. Although often the arcane world of unitary plans and how the Resource Management Act applies and the minutiae of the Auckland Council is somewhat far from the everyday experiences of Auckland in that sense, in the physical sense it is the footpaths, the paths, the public transport, the State highway network that the council is involved in part-funding—that is what Aucklanders experience. It is important that it gets done right, gets done democratically, and we have an efficient but democratic process.

So I am not an expert, but as a former Aucklander I want to make a contribution. I have got a few substantive points on Part 1. The first is that I would also like to respond to Chris Hipkins’ question around clause 5. This amendment bill amends the way the Auckland Unitary Plan Independent Hearings Panel can form its recommendations. Previously, I assume in the original transitions legislation it implied that the hearings panel could make a single report with a series of recommendations, no matter how many hearing panels or topics it discussed. What clause 5 in this amendment bill does is allow the panel to make a series of recommendations on a series of topics.

I guess I am asking for Government members, or the Minister, to make a contribution on this question, because I believe it is debatable. What is the best way to engage and consult the people of Auckland and the constituent communities? Is it easier to have a single report with a series of recommendations that you can go through one time and then make a single submission on, or is it more convenient and more open, in terms of consultation, to have a series of reports coming out? You know, I genuinely believe it is debatable. Is a single series of recommendations easier to follow, or a series of individual topics? I would invite the members to weigh in and share their views on it.

In terms of the other substantive points on Part 1 of this bill, the first is the quorum being dropped from three members to two. I think I would like to echo some concerns we have seen from the Labour members on this point. We, as a parliamentary chamber, I doubt would restrict our select committee or parliamentary House quorum requirements. It is a question of the seriousness that the public see in terms of the reputation of the panel members. I think it is a live question: what is the importance of going from three to two? When you are debating recommendations with those hearings panels, obviously it is hard to break a tied vote if you have only two members. A third member makes sure clear decisions and recommendations can be put forward.

Second, we see an increase in the possible number of appointed hearings panel members from seven to 10. In this clause, which I believe is clause 7, it furthers a track record of the current Government to move from having independently appointed or separate consultation appointment processes for important decision-making members, such as on the hearings panel, which can issue recommendations, to having an appointed policy approach. I think we have got to have a debate on this issue because when you see the Government stacking appointed members, alarm bells should be ringing. When you have a body such as this hearings panel, which is hearing from the Auckland communities, hearing from the council, and making recommendations on the Auckland Unitary Plan, it is important that we have hearing members who are representing diverse communities.

When you look at the Government’s track record, particularly the member Steven Joyce’s track record when it comes to the university and polytech councils, what we have not seen is diverse communities or multi-gender positions granted. What we have seen is—I do not know whether this is in order—old, male, pale, and stale. People from the business communities are dominating those appointed boards. [Interruption] I definitely was not talking to you, Mr Chair. So I think we have got big concerns around further appointed members. Obviously, it is good that we have got greater consultation requirements, including the Independent Māori Statutory Board, along with the Minister of Conservation and the Minister for the Environment. However, I would question the Government members again: why only those two Ministers?

I would like to support the amendment in the name of Phil Twyford, which comes to include the mayor, as well, in the decision-making consultation requirements to appoint new members or a new chair to the decision-making committee. I think it is critically important we get Auckland voices involved in those conversations, and I think it is entirely appropriate, entirely legitimate, and entirely consistent with good decision-making to make sure that we get the Auckland mayor involved. At the moment we have got a Minister for the Environment based down in Nelson involved, and I think Aucklanders, when they are seeing new hearings panel members appointed, would ask questions. Why do our democratically elected Auckland Council members not get a say but the Minister for the Environment, based in Nelson, does?

Now, my third substantive point comes to clause 8, which is the concurrent hearings. Currently the hearings panel does a hearing, hears from the public, and makes a recommendation. This amendment bill allows for concurrent hearings. Again, this is a serious issue for debate. I think we should have a debate on that in this Committee stage because I can see both sides of the argument. On one hand it is more efficient. We can have multiple hearing panels having multiple public hearings so that the public can have their say, I guess, in a more timely and efficient manner.

Efficiency and timeliness are good values to espouse, but they can come into conflict and run up against the values that this House shares of having good decision-making and open, consultative, democratic input from the public. If you have two concurrent hearings—there are numerous stakeholders and communities involved in Auckland that have a wide variety of views on a wide variety of issues. Just take someone involved with a housing development, which is a very topical issue in Auckland. You could have concurrent hearings dealing with the same issue happening at the same time and it would be impossible for the same person to be in two locations at the same time, so let us have that debate. Do the efficiency benefits of allowing concurrent hearings outweigh the potential consultative and democratic pitfalls, or is that a decision where that has been thought through and a balance has been found?

Looking at clause 7 in Part 1, which inserts new section 161(8A), we see the Minister for the Environment, not the conservation Minister—and I would like to flow on from this. I know there is a genuine feeling in Auckland that Auckland is being run not from Auckland, of course, but from Wellington, and there has been a historical level of concern, I know, in this House. More than a hundred years ago there was actually talk of an Auckland party forming to make sure that Auckland interests were adequately represented, and when you see a Minister for the Environment based in Nelson making these key appointments to the hearings panel and not the Auckland mayor or the Auckland Council, it continues this.

When you see a bill, which is what we are debating in front of us, that is around decision making and that is around consultation with the public and you have a legislative process that does not give those Aucklanders or the public a say, with no select committee process—I would like to touch on the irony that we see in this. We are debating a bill around having good process and doing it in a terrible process, which, of course, is under urgency with no select committee process. Hopefully, a Government member can explain why on earth we are in urgency for this bill—a bill that was announced more than 2 months ago, but a bill that was only tabled and introduced in this House at 10.30 p.m. last night. If we are going to take Auckland seriously and if we are going to get Auckland moving, which is what I believe this House genuinely values, genuinely wants, why can we not take good process and consultation seriously? Why can we not have a more considered and deliberative approach, not just seeing a bill late last night that was to be debated the next morning through all stages? Why can we not have a good deliberative process?

What we see—and this is my last substantive point—is that this bill also validates previous errors in law. This is exactly what happens when you go through an urgency process. Mistakes get made, they do not get picked up, they do not get amended in the Committee stage, and the country is worse off as a result. The people are poorer, both in a financial sense from longer operating hours for this House and also in terms of respect for this House, where we should be putting good lawmaking and considered, deliberative legislative processes up there as aspects we aspire to. This House is united in its support for Auckland. We want to make sure there is a good unitary plan, one that the majority of Aucklanders can get behind through a good, consultative, democratic process. There are legitimate questions around having appointed panel members. There are legitimate questions around whether the drive for efficiency over democratic input—

I am going to come back to an issue that I signalled was puzzling to New Zealand First when we first read this bill yesterday. It stood out quite glaringly. The proposal to move, or—sorry, I am just looking for it now. Clause 4, “Section 136 amended (Hearing procedure)”, which seeks to reduce the numbers of members on the Auckland Unitary Plan Independent Hearings Panel from three to two. Going back into the primary legislation, this is dealt with there under section 136, “Hearing procedure”. Section 136(1) says: “At each hearing session, no fewer than 3 members of the Hearings Panel must be present.” This bill, under Part 1, clause 4, simply replaces the numeral “3” with the numeral “2”, which raises some interesting questions.

The member for the Green Party Gareth Hughes actually raised one of them. If we end up in a situation where you have two people sitting on that hearings panel and there is a disagreement—bearing in mind that under clause 5 of the bill this panel has had its powers amended through the amendment to section 144 of the primary legislation, where the hearings panel is now able, under this legislation, to make recommendations on the proposed plan, including any recommended changes to the plan, at the end of the hearing of those submissions. If we end up in a position where now, because the panel can report back in stages and it can make recommendations in stages, as opposed to having to wait until the entire hearing process is over—can the Minister in the chair, Peseta Sam Lotu-Iiga, tell the Committee how you break that stalemate if at the end of that phase of the hearings the two members sitting there disagree on a recommendation?

Normally, Minister, anywhere else in the world people recognise the need to have an odd number so that you can have a debate and someone can adjudicate and there is a casting vote in there. But now we are going to report back in stages—and I am surprised that Mr David Seymour has not raised this matter. Being such a bright lad he would have picked up on this very, very quickly, I have no doubt.

But reading back into the primary legislation that Part 1 is amending in clauses 4 and 5, we know two things now: the rules around the hearings have changed, and the members on the panel can report back and make recommendations at the end of a session on a topic. When they have concluded hearing submissions on that particular topic, everyone has left the room, and they are sitting and discussing “Should we put through our recommendations now on that topic?”, if on the weight of the evidence they have drawn different conclusions and they disagree, then where does the tie-breaker come in? Where? I am going to ask the Minister because this is very important. We are reducing the quorum from three to two.

There is also another issue. If you go a little deeper into the primary legislation—I think you have got to go to section 144. If I might just whip back there briefly and have a look at section 144, “Hearings Panel must make recommendations to Council …”—no, I think it is under a different section. There is another little issue that pops up. For there to be a hearing, there has to be a chair of that panel. Under the unamended legislation you had a quorum of three, and if the chair did not turn up, the two of them could vote for one person to be the chair. Now, if there is a quorum of two and the chair does not turn up, where is it in the legislation that says that the other person who did turn up automatically becomes the chair? I do not know—well, if you do not have a quorum, you do not have a quorum, and you cannot convene. I guess the question around the appointment of chairmanship might not be relevant in there, but under the rules where you had—

The CHAIRPERSON (Hon Trevor Mallard): Next page.

Yes, it is over the next page. I know I was looking at it, and I thought: “Well, where does this work?”. If you have a quorum of three, coming to a decision is easy. It might not be to everyone’s agreement, but it is easy. I would like the Minister to please take a call. I would like the Minister to have a ponder on that and to consult because I think we have a wee problem: you might end up with a stalemate.

One of the things that is very important—because New Zealand First agrees that amending the legislation so that the panel can report back in stages is very important. Those of us who have done this sort of work in the past know that you get a pile of submissions. You can get submissions, if you take Rodney, for example, on land use, or if you take central Auckland, they will be on housing. There will be issues that will be quite contentious, but at the end of the hearings on that topic a number of drop downs will be obvious. To wait until the entire hearing process is over before one reports back on that is maybe not the soundest idea, and that is why, I am assuming, the Government has really gutted out section 144 of the primary legislation and trimmed it down—simply deleting the words “after it has finished hearing submissions” in section 144(1).

I understand that—I understand that. The ability to hear the evidence, take the stuff that is immediate and obvious, make a recommendation, and report it back there and then, when it is timely, fresh in the mind, and it is current—that is all good stuff; I understand that. But it is a problem if the quorum has dropped to two and people cannot agree.

So I think the Minister might want to have a think about that and maybe have someone scratch out an amendment, or maybe change that idea and stick with the three, because moving out the size of the panel from seven to 10 is a good idea. Given the size of Auckland City, given the complexity of the problems that Auckland faces, and given the varying views that will come before those hearings panels—you have got 5,000 submissions yet to be heard—I understand about having more people on the panel, having panels sitting concurrently, and being able to appoint chairs to other panels that are sitting concurrently. I understand all that. It is all about expediting. It is all about moving things forward quickly, in a timely manner, and efficiently without undermining the democratic process and without undermining people’s rights to have a say. So I would just ask him to have a look at that, please, and make a comment to us. Give us some satisfaction that things will not be messy at that point.

The Phil Twyford amendment—we would just signal at this point in time that we think it is a very good amendment. We think that the democratically elected representatives of the people of Auckland—this is a really simple point—should have a say in who the Minister for the Environment appoints on to that panel. It is really simple: this is about democracy. This is not about the Government having people appointed to the independent panel who fit the Government’s agenda and the Government’s thinking and who are able to produce results, policies, decisions, and directions that just coincidentally fit with the philosophical belief of the Government of the day.

Having said that, I have to put my hand up and say that I was always surprised and grateful that the Government selected me and appointed me to a couple of district health boards in my time while I was out of the House, reflecting that it was able to take on board people with differing views and different philosophies, looking for that mix. We would hope that if this legislation goes unaltered from what is before us right now, the Government will make sure that those people who are appointed to that independent panel are not political lackeys, but we would prefer that the Phil Twyford amendment goes forward to allow the people of Auckland, through their democratically elected representatives, to have the say in who is appointed to that board.

It seems to me from some of the speakers before—and I refer to Chris Hipkins’ comments—that those of us down here in the Wellington basin do not understand everything about Auckland. We know what we know through people whom we know and our own family who live up there, and from what we read. I am one of those lucky people. My partner is an Aucklander, and so I probably understand a heck of a lot more than I did before I met her, but I would not dare to stand up and say that I would be eminently qualified to sit on an independent panel looking at the Auckland Unitary Plan, or to say that I understood intimately and in detail the issues that were vexing the people of Auckland.

So we come back to the Phil Twyford amendment and say that we believe it is a good amendment. It is worthy of the Government’s favourable consideration—well, worthy of Government approval; it is as simple as that. Not consideration—it is worthy of approval, in the interests of enhancing democracy. Thank you.

I want to encourage the Minister in the chair, Peseta Sam Lotu-Iiga, to take a call, for a couple of reasons. One is that the House is not giving this bill the benefit of a select committee process, and there are certain questions—a number have already been raised—that I think deserve an answer from the Minister. I know this is not his bill. He is not the Minister of Local Government; he is not the Minister for the Environment. We heard a bit of a pitch last night in his opening speech, which I think was an audition for the role of local government Minister—and he knows about local government. I mean, he is a former councillor on the old Auckland City Council. He might even be considering a new career in local government—that is quite possible. I think that it would be good for this debate if the Minister would, as H V Ross Robertson used to say, get up on his hind legs—

💬 Sue Moroney: And “courtesy is contagious.”

—and “courtesy is contagious”—and answer one or two questions that have been put to him. So I look forward to the Minister taking a call.

I want to speak to my tabled amendment to clause 7, but first let me just provide the context. On the question of the Auckland Unitary Plan Independent Hearings Panel and appointments to the hearings panel, section 161(1) of the principal Act provides that the Minister for the Environment and the Minister of Conservation are to establish a hearings panel comprising the chairperson and three to seven members. That section also provides that “Ministers may appoint additional members after the initial appointment of members so long as the total number is no more than 7 members and a chairperson.” So that is the status quo—that is as things stand.

What this bill does is it increases the maximum number of members who can be appointed to the panel. Members have already rehearsed the reasons why: we need more flexibility, we need more concurrent hearings, and therefore a bigger pool of members is going to aid that outcome. But what the bill does, through clause 7, is it allows the Ministers to appoint the additional members, to a maximum of 10 plus the chairperson, only after consulting a number of other people. This is, I think, where it gets interesting. It says they have got to consult the Auckland Council, whose plan it is—the democratically elected representatives of the people of Auckland, who have to live with the consequences of this plan—the Independent Māori Statutory Board, and the chairperson of the hearings panel.

So the first question that I want to ask of the Minister, the Hon Sam Lotu-Iiga, is: why the Minister of Conservation? Why—why? I mean, Maggie Barry has a lot of opinions on a lot of things, but is she an expert on urban development? Is she an expert on town planning? Is she an expert on environmental law and the Resource Management Act? I suspect the answer is no.

I will just give you a little insight into how much the Minister of Conservation understands about matters of local government and planning. This is the Minister who was recently quoted in the North Shore Times, her local rag, complaining about the level of spending on public transport by Auckland Council. She was asked whether she uses public transport, and she said that well, she would, but she can never find a car-park at the park-and-ride by the Bayswater ferry—just cannot find a car-park. That is her excuse for not using public transport.

Well, Heather du Plessis-Allan from TV3’s Story programme went and stepped out the distance between Maggie Barry’s house and the ferry terminal, the Bayswater ferry, and the distance is fewer than 500 metres. So Maggie Barry, the Minister of Conservation, whom this bill lays down as one of the two decision makers to appoint the panel—that really shows her affinity with, and understanding of, local government matters, because, obviously, public transport is a critical factor. So, Minister, why the Minister of Conservation? I would really appreciate that explanation.

If we were running this bill through the normal select committee process we would have the opportunity to ask these questions, and the officials would—[Bell rung]

The CHAIRPERSON (Hon Trevor Mallard): Oh, Phil Twyford.

So—

The CHAIRPERSON (Hon Trevor Mallard): But let us come back to the bill, rather than to Ministers walking to ferries.

Rather than Maggie Barry?

The CHAIRPERSON (Hon Trevor Mallard): Rather than Ministers walking to ferries.

Yes, OK. So that was my first question: why is the Minister of Conservation one of the decision makers? I mean, I can understand why you would have the Minister for the Environment being a decision maker. What my tabled amendment does is it would require the decision to be made jointly by the Minister for the Environment, representing the executive, central government, and the Mayor of Auckland, who is someone who has, arguably, the biggest electorate of voters in the country and who is elected at large across the entire region and is accountable to the people of Auckland. Why not make it a joint decision and reflect the spirit of partnership that we have heard in some of the brief contributions from Government members in this debate?

It was interesting to hear Joanne Hayes say: “Oh, this is a good bill. Basically, it allows local councils to get on with their job.” Well, that is not a philosophy we have heard articulated from Government members any time in the last 7 years. What we have seen—and Ron Mark spoke about this earlier in this debate—is that local government has been the sort of whipping boy of choice for the National Government for the entire last 7 years. The decision in the principal legislation to have central government appointing all of the members of the panel typified the kind of “Government knows best”—running Auckland from its luxury offices in Wellington, because the Government knows best and it does not really care, even though it is the people of Auckland who have to live with this plan and live with the consequences.

So you can see it, actually, when you look back through the local government agenda of this Government over 7 years. We had Rodney Hide right through to the way this bespoke planning process for the unitary plan was put in place. The appointment of the commissioners, I think, is emblematic of this Government’s attitude, and I think that it would be, if the members opposite are true to their rhetoric about working with Government—and we have already said in this debate that they have been dragged kicking and screaming over the last 7 years, finally, to some kind of acknowledgment that they have to work with Auckland.

The reason that we are supporting this bill is that it is practical. The Auckland Council has asked for these provisions because it wants to get the unitary plan put to bed before the local government elections next year. So this bill is worth supporting for that reason, notwithstanding the objections raised by our Green Party colleagues, but I would urge the Government to think seriously about this tabled amendment and consider allowing the appointment of the panel members to be made jointly by the Mayor of Auckland and the Minister for the Environment, who I think is probably the logical person to do that.

It is interesting. In Richard Harman’s blog post this morning he points out that David Seymour, who made a contribution earlier this morning in this debate, is talking about reopening and reviewing the super-city legislation, which, really, is the platform for any kind of consideration of this debate. The unitary plan is the big kahuna that, basically, flows on from the establishment of the super-city. It was a bespoke process. They had never really attempted something on this scale—a spatial plan on the scale of the Auckland Unitary Plan—and it would be unkind to say that they are making it up as they along, but—

💬 Hon Ruth Dyson: They’re making it up as they go along.

—they are, in fact, making it up as they go along. And this bill, rectifying drafting errors from the earlier legislation, validating—and we will talk some more about the retrospective validation clauses later in this debate. It is a kind of a Heath Robinson contraption, this whole bespoke process.

So I would ask the Committee, and particularly the Government members—and I see we have got a new Minister in the chair now, the Hon Louise Upston. I would ask her to take a call. We did not hear once from the Minister who preceded her in the chair, the Hon Peseta Sam Lotu-Iiga, but I assume she has been briefed. We have not had the benefit of a select committee process. We have not had any substantive—

Normally, at this stage of the debate, members would come to the Chamber armed with the select committee report, we would come armed with public submissions from the members of the public who took the time to make submissions, we would come armed with the advice from the ministry, we would come armed with the legal advice from the Parliamentary Counsel, or we would come armed with the regulatory impact statement. Alas, none of that is available to us, and I want to state that at the outset because I think it is important. Even though the members of the Government are hanging their heads in shame because this is not the kind of practice that this House normally accepts, I would hope that they would give the time to members of the Opposition to analyse each and every one of these single clauses in this bill, because we have been denied the expert advice that we would normally receive if this bill had gone through the select committee process.

I wanted to ask the previous Minister in the chair, Peseta Sam Lotu-Iiga, given that he is a member from the Auckland region, whether he would stand up for Aucklanders and help the Opposition by answering some of the questions that my colleague Phil Twyford and others have asked. I want to continue along that line and, hopefully, the Minister who is now in the chair, Louise Upston, is able to answer those questions, given that we have had neither the benefit of the expert legal advice we would normally receive, nor the regulatory impact statement—which is just bad practice. This is not the way that legislation ought to be made.

I would like to ask some general questions first, because the fact that we are debating this bill highlights that mistakes have been made, and we are validating some of those mistakes. My first question is this: when did the Government first find out that the Auckland Unitary Plan Independent Hearings Panel was undertaking a process that, legally, it should not have? When did it find that out? I understand that the Minister drafted the bill some time ago, but yet, at the last minute—and the House does not have very long to go—we are now being forced into the position that we are currently in. So I would be really interested in when the Government first found out about the mistakes that needed to be validated with this particular bill.

The other question is a general question that I hope the Minister will be able to answer. How much is this exercise going to cost altogether, and how much will be borne by Auckland Council? I say that because all of the independent hearings panel’s expenses and all of the secretariat support that it receives is paid for by Auckland Council. Therefore, it is paid by ratepayers. Members in this House may note that there has been this huge debate in the Auckland region where many of us have blamed the mayor and the council for the significant hikes in rates that the ratepayers are having to carry, but many people do not know that it is the result of the burden that has been imposed by the legislation that this Government forced on Aucklanders back in the early days, in 2009.

So the question is: how much is this exercise going to cost, and what additional costs will it add to the work of the independent hearings panel, which will be carried, necessarily, by Auckland Council? And just a general question on that: will central government provide any incentives to Auckland City to meet some of these expenses? That is an important point that I would like the Government to answer, because there will be many Aucklanders seething with anger over the fact that the Auckland Council continues to hike up its rates. But they need to put the pieces together—it is largely a result of what the Government has imposed on Aucklanders.

I now want to turn to the substantive amendments in Part 1, and in particular to clause 4, where we are asked to replace the quorum—

I am going to concentrate my contribution on clause 6 in the Local Government (Auckland Transitional Provisions) Amendment Bill. But, before I do, I just want to reiterate that New Zealand First is going to support this bill, not because we like it, but because we find ourselves in a positon where, once again, an error has been made by this Government and we are required to do this for the benefit of the over a million people sitting in Auckland so that their future can be defined.

I want to point out that I am one of only two members of this House who was one of the foundation elected members of the Auckland Council at a local board level.

💬 Sue Moroney: Oh, your fault!

No, Ms Moroney, it certainly was not my fault. I want to point out that the reason why this is important is that in the original legislation that set up Auckland City, a trade-off was made around the right of appeal, which is what clause 6 relates to. So a trade-off was made around the right of appeal, which restricted the ability of people to appeal once the unitary plan was in place, but that was traded off by having a draft unitary plan at the beginning of the process.

I was part of the process that, in 17 months, put together the Auckland Plan, which informed the draft unitary plan. The reason why this is a concern is that that draft unitary plan was, supposedly, one of the most open and transparent processes that every ratepayer in the greater Auckland area could actually submit on.

There are two things—and this why this ability to appeal that is now being amended again from the original piece of legislation is so important. Two things: when the draft unitary plan went out for consultation it was only available online, with huge maps that actually took a lot of broadband download speed, and so rural Rodney, for example, could not access it. So the majority of the ratepayers in rural Rodney could not access the unitary plan maps for the draft unitary plan through the process that was put into place. That led to an urgent printing of one per library, and then those people could then go to the library and look at the unitary plan maps and the heritage overlays, which this bill also talks to, and that is why it is so important that we address those issues.

The other thing that happened too, which concerns me, again, about this manipulation around the right of appeal, is that when we finished the draft unitary plan consultation—and it went on and it went back to the councillors and went back to become the unitary plan, which is what we are talking about here and what people are resubmitting on—certain things happened out of blue when the unitary plan now being consulted on came back. For example, let us talk about the rural urban boundaries. There have been 79 percent of the submissions heard by these hearings.

The CHAIRPERSON (Hon Trevor Mallard): Order! Mr Nash, could you sit down, please. I cannot see the speaker. Thank you.

Thank you. Seventy-nine percent of the submissions on the unitary plan that have been submitted have been heard. There are approximately 5,000 submissions left on these specific sections, and this goes to the changing of the recommendations’ ability so that it can be done section by section.

One of the sections that is to be done next is all the submissions on the rural urban boundary. For one example—one example out of only the Rodney area—in the draft unitary plan, let us take the northern end of Warkworth. It was agreed under those submissions that the rural urban boundary would go as far as Matakana Rd. It would not jump the road, and it was agreed by the community and the Rodney Local Board, and it was put forward to the councillors.

By the time it became the unitary plan that is being submitted on, which this bill is dealing with, that urban boundary had jumped the road and gone through four private properties. That change came after major consultation, and at council level, hence my concern that what we are talking about now is pushing through quickly to meet a deadline set in original legislation—actually set in the Local Government (Auckland Transitions Provisions) Amendment Act 2013. We are talking about pushing through quickly—with split hearings, and with only two hearings people on each panel—around rural urban boundaries.

The other special area that is going to be consulted on in this last section is the special character overlays. An example of why that is important—

I move, That the question be now put.

The members will resume their seats while I am on my feet. I am not going to take it now, but I am going to warn people that I will now be looking very closely at the speeches being on the detail of the bill, not a relitigation of the history of the Auckland region.

Thank you very much, Mr Chair. You can rest assured that I am not going to be talking about my role in the history of the Auckland region. I want to start with a question for the Minister in the chair, Louise Upston, relating to the departmental disclosure statement, which suggests to us that advice provided to the Attorney-General about whether or not there would be a section 7 report would be available prior to the introduction of the bill. I can find no evidence of such advice on the Table. I have had a quick look at the Ministry of Justice’s website, and I can find no evidence of that there. Again, this is an example of when, in a situation under urgency, we do not have a select committee process. We have an assurance here in the departmental disclosure statement that this would be available on the ministry’s website upon the introduction of the bill. It is not—it is actually not available. This is a serious matter because I do believe that when we are talking about hearings that members of the public will be participating in—which is what is covered throughout the substantive part here in Part 1—there are questions of rights of natural justice. That is one of the main issues within the New Zealand Bill of Rights Act in terms of the right to justice.

The exact wording in the New Zealand Bill of Rights Act is about the observance of the principles of natural justice by any tribunal that has the power to make a determination over the rights of the citizen. That is one of these hearings panels. That is exactly what these hearings panels are doing: they are undertaking work as a tribunal on a matter of the rights of Aucklanders and the way in which their city will be created. So we thought—well, I certainly thought I would see a New Zealand Bill of Rights Act vet come forward on this matter. I think that the Ministry for the Environment, which was responsible for the drafting of the departmental disclosure statement, also thought that we were going to be seeing a New Zealand Bill of Rights Act vet, and we do not. So I would ask the Minister in the chair to explain to the Committee what is going on here. I think it is a reasonable question.

The reason I do think that that question of the observance of the principles of natural justice by a tribunal—the clause from the New Zealand Bill of Rights Act—is brought into the situation here is what is happening in clause 4. That is, the amendment of the number of commissioners hearing is being reduced from three to two. What this bill does is increase the number of commissioners from seven to 10, which means that we are running into a situation where a hearing will be conducted by 20 percent of the membership. I want a Minister or a member of the Government to stand up and tell me whether they think that upholds the principles of natural justice. Actually making it a percentage figure somewhat masks the problem that emerges here—and Mr Mark raised this—which is that 20 percent is two people. That is just two people in a room. Does that uphold the right of an Auckland resident to fairly be heard in terms of their right of natural justice under the New Zealand Bill of Rights Act? We have already discussed the fact that once you get down to two, it is not so much a quorum as, potentially, a collusion. If there are actually only two people in the room, it is quite easy for those two people to be coming from a very, very specific point of view.

There is both a constitutional point and a very practical one, which is that when someone has come forward with their submission and they are confronted by two people, and one of them is playing on their cellphone, are they actually being treated fairly and well when they are in the room? That is the practical point. Is that the best that we could expect for Aucklanders who have taken the time to make a submission about the Auckland Unitary Plan? But if we move to the constitutional end of it, having only two people there out of a group of 10 runs, I believe, some considerable risks.

The Labour Party is supporting this legislation, but as a member who has not had the opportunity to hear from my colleagues who were on a select committee, I have not properly heard any actual justification for this. I can guess what it is. I can guess the fact that it is because—and I cannot really talk about this; oh no, I can actually talk about this in this part—they are going to expand the number of commissioners to 10 and then run concurrent hearings. So I can understand that, but I do not believe that any Minister or any—

Sue Moroney.

💬 Hon Ruth Dyson: Is it Sue or me?

No, Sue Moroney.

Thank you. That was a very excellent choice indeed. I am pleased to take a call on Part 1 of the Local Government (Auckland Transitional Provisions) Amendment Bill, and I want to focus my contribution on clause 4. But I just want to preface that a little by making sure that people know what my general concern is about this. And it is this point: I am based in Hamilton, and when things go wrong in Auckland, it has a direct impact on Hamilton. And at the moment, we are seeing that come marching over the Bombay Hills in the form of Auckland’s housing crisis landing in Hamilton.

The CHAIRPERSON (Hon Trevor Mallard): No. Order! I did warn members earlier that they are to speak to the detail of the bill—Part 1.

Sure. So for those reasons, clause 4 really bothers me, because what we are being told in clause 4 is that in respect of the decisions being made that affect 1.3 million people—because as of 2011 that was roughly the population of Auckland; my guess is that it is an awful lot larger than that now—just two people in a room are adequate to make decisions that will impact on 1.3 million people. My colleague Grant Robertson was doing the maths on what that means in terms of the number of people on a hearings panel, and he came up with 20 percent. I cannot even do the maths, because it is so tiny—the proportion of two people out of 1.3 million.

I particularly want to address this issue while the Minister who is in the chair, Louise Upston, is there, because I know in a different capacity she is the Minister for Women. And one of the things that really bothers me about a quorum being just two members of a hearings panel is whether we can be assured that there is going to be diversity of representation and opinion between those two people. If that is all a quorum requires, then where is the diversity of opinion? Some people may be listening to this debate and think “Look, these are environmental hearings, by and large, what on earth has that got to do with gender representation?”. Well, here is the point: what all the research and evidence tells us is that we get this right when we have diversity of opinion in the room. We know that when there was one woman—or more—on boards of American companies, they survived the global financial crisis better. Why is that? Not necessarily because the women are smarter, but because they ask the questions at the table and they make sure, therefore, that the right decisions are made. So in clause 4 I want some assurance from the Minister in the chair that there will be that diversity of opinion in the room. And I query whether we can get that diversity of opinion in the room for those hearings panels if the quorum is reduced to just two.

The other question I would like answered, because this legislation—and it is very, very bad form—is being done retrospectively, is that I want to know whether this is being done retrospectively because, in fact, there have been hearings held by the Auckland Council where it has failed to be able to get a quorum of three. If that is the reason why we are doing this, then I think that brings into some serious question the amount of scrutiny and the legality of decisions that have been made in the past—if the reason for this change is that the Auckland Council has struggled to get three people in the room at any given time. I am pleased to see that in Part 1 the Government is increasing the possible number of appointed Auckland Unitary Plan Independent Hearings Panel members from seven to 10, and that excludes the chairperson.

I will come back to my original point, because I think that when you increase the pool of people who can participate in these hearings and who have the expertise to participate in these hearings, then we increase the opportunity to get diversity of opinion in the room. Again, I will reiterate that that is important because when we get people—I think my colleague Grant Robertson described it as a collusion rather than a quorum—who are of the same mind, then we stop questioning the outcome. That, in my view, leads to poor decision-making. That leads to the sort of poor decision-making that has ended up not only impacting on Auckland and the 1.3 million people there and the ratepayer base there but, as I said at the outset, now impacting on the city that I live in down the road. When they get it wrong in Auckland, that ends up being a problem for Hamilton. Actually, as many other speakers have said, that ends up being a problem for New Zealand. Without a select committee process we have not heard why we are reducing that.

I raise a point of order, Mr Chairperson. I raise it under Standing Order 265, which covers the New Zealand Bill of Rights Act. I would ask, Mr Chair, for your assistance here. We have a departmental disclosure statement that indicates to us that advice on the section 7 report is expected to be available upon the introduction of the bill. I have checked that website; it is not there. It is not on the Table—

The CHAIRPERSON (Hon Trevor Mallard): I will interrupt the member and say that I have, following his speech, asked the Minister to follow up with officials on that question. We have not yet had a response.

Can I then receive your reassurance that at the point at which you get that advice you will transmit that to us by way of a ruling?

I have asked the Minister to make sure that that is made available to the Committee—either the report, or the fact that one has not been made or has been made. It is an important point.

I rise to take my first call in the Committee of the whole House stage for the Local Government (Auckland Transitional Provisions) Amendment Bill. I do note that we are on Part 1—the substantive amendments—and I will restrict my comments to this part of the bill.

Clause 4 talks about reducing the quorum of the hearings sessions from three to two, and, if we look through Part 1, the amendments are around appointing more hearings commissioners. The reason for that, essentially—and we should go back to the reason for that—is, basically, so that they can get through the hearings process more quickly than they would with the current panel total of just seven members. Clause 4 talks about reducing the quorum from three to two, which means that you can get through a lot more of the hearings quicker. I share the concerns that, I think, have been raised by other members of this Committee about what happens when you have those two hearings commissioners deliberating and they cannot make a decision because they are equally split. I guess I would like to hear from the Minister in the chair, Louise Upston, what the Government has in mind that would be the answer to that quandary. What we know is that the deliberation process is where a lot of the decisions get made, and they are based on the weighted numbers. But if it is equally weighted, then, I guess, we have got a problem.

I would also like to talk about why we actually need to have this done in such a quick time frame when, really, this is the biggest unitary plan and the biggest use of the Resource Management Act’s planning processes ever to be had in New Zealand. One would have thought that there would be a lot more care taken with consulting around who will be on the Auckland Unitary Plan Independent Hearings Panel, deciding who would be on the hearings panel, and then actually taking the time to prepare the submissions. We know that there are about 5,000 more submissions that are yet to be heard, but the Government has set up an arbitrary date by which the report and recommendations are to be back to the council—I think it was July next year.

Part 1, we note, does actually specify that that report can be made in bits, so that as one section of the plan is covered off with the hearings, the hearings panel can actually make its recommendations on that part alone and, basically, just sort of drip-feed the decisions and the recommendations as they come through. We do not necessarily have a problem with that. Where we do have a problem is the retrospective fixing up of mistakes that were made with the original legislation, and the need for this bill being pushed through under urgency to fix up those mistakes.

I want to talk about Phil Twyford’s amendments. I note that there is a new one on the Table, which I will probably ask one of my colleagues to comment on—one of my colleagues who is more focused on the original legislation around the Resource Management Act. They would probably like to comment on the newest amendment that has just come through. I want to talk about Phil Twyford’s amendment around ensuring that the mayor, in conjunction with the Minister for the Environment, makes decisions about the appointment of the extra three hearings commissioners. The basis of our opposition to this bill is basically that the appointment process has been driven by the Government rather than by the council. We note that it does say that the Government—the Minister—will consult with both the Māori Statutory Board and the council. However, consultation is way different from decision making—and I guess we see that a lot in this House, where, basically, submissions are ignored quite frequently by the decision makers. I worry that that may be the result of the plan that we end up with, given the huge process that preceded the whole draft plan.

Before I call another member I will just indicate to the Committee that I have been advised both from my left and my right that the advice on the question of the New Zealand Bill of Rights Act vetting is available now on the Ministry of Justice website, and no issues have been raised.

I move—[Interruption]

The CHAIRPERSON (Hon Trevor Mallard): Order! Sorry; Mr Doocey has the call, and I would like to hear what he is saying.

I move, That the question be now put.

This part is the substantive part of the bill, and at the heart of this is a desire to allow the Auckland Unitary Plan Independent Hearings Panel to conduct its work more effectively but without affecting the quality of its work. The Opposition supports this, but we are tested in our support for it when we have successive Ministers in the chair who do not answer questions that have been genuinely put. We have not as a House had the opportunity to ask these questions in a select committee process, so I think it is incumbent on the Minister, in the Committee of the whole House, to answer the questions. Mr Chairman, I point out to you that throughout this entire debate, the Minister has not taken one call in answer to numerous questions being put forward.

So I am going to try going through this clause by clause to get the Minister to answer the questions. We want to support this bill, but the Minister certainly is not making it easy for us, in the process of urgency, rushing this legislation through the House, with no select committee scrutiny and no endeavour by the Minister to actually answer the questions that we are putting. That is a negation of democracy, and, ironically, the clauses of this part are about democracy. It is about people’s right to be heard. If people want to be heard, they also want their questions answered. So I say to you, Mr Chair, that we want the Minister to have the chance, and to take that chance, to answer the questions.

The first thing, in clause 4, is about reducing the size of the quorum. It is going from three to two. I had imagined that this reduction was to deal with exceptional circumstances when two or three panels might be sitting concurrently, but I am starting to get the sense that this will be the norm. So my first question to the Minister is: will the norm for these hearing panels, with 5,000 submissions to be heard, from January next year, be two members or three? In exceptional circumstances I am prepared to go along with there being two. But I am concerned that that will be the norm. I also believe that Ron Mark deserves to have his question, asked more than an hour and a half ago, answered. If you have got two members, and therefore you do not have a majority on the committee, and there is a division on the committee, how is the decision reached by the panel? If you have got two members and neither is the chair, how do you decide who is the chair?

These are practical questions, Minister, and this Committee, the New Zealand public, and particularly Aucklanders have the right to have answers to those questions. They are not time-wasting questions. They go to the heart of the effectiveness of the changes that we are debating. And remember, Mr Chair, we are debating half of this bill because we are correcting mistakes made in previous legislation that has been rushed through, and here we are again rushing through legislation with no examination, no answers from the Minister in the chair, and no answers from the officials in the Chamber through the Minister.

Secondly I want to address clause 5. Clause 5 allows the hearings panel to make recommendations on a particular topic after it has finished hearing submissions on that topic rather than making all of those recommendations at the end. I think I know why this is a good idea. I think it is because that gives the council, the recommendations having been made, a longer period of time to consider and respond to them. But we have had no explanation. I have been in the Chamber continuously through every stage of this bill. We have not had one Government member address what the reason for this change is. I think the Committee deserves better than that. I think the Minister, paid her salary, should get up and answer that question.

I think it is an insult to the House, actually, that neither Minister who can answer the questions has been in the House for any part of the debate. This is Nick Smith’s bill. He has not been here to answer the questions. We could have had one of the other Ministers. We could have had the Minister of Local Government here. This House is being treated with absolute contempt when the Minister sits there dumbly and does not answer questions that are genuinely put.

The third clause I want to look at is clause 7, and that is about the process of appointing the additional members. I accept that there is a good reason to increase the panel from seven to 10, but the process set out is that the Minister of Conservation and the Minister for the Environment jointly decide and then consult. And I ask why—

I do want to take the opportunity to put to rest some of the concerns that the Opposition has been raising on the questions of the hearings sessions and the quorum. So I will make just a couple of points on that.

The intention of the quorum of two is around site-specific hearings. It is at the discretion of the chairperson, so not all sessions will have that smaller number. It is at the discretion of the chair. Those sessions are for hearing evidence. They are not for decision making. So, again, it is in the interests of how to get this work done, and hear the evidence, and the opportunity to do that is what you would expect for those who want to be heard. But that group, the quorum, being lowered from three to two is not a decision-making process.

So the lowering of the quorum of the hearings session from three to two is only about—I want to reiterate—the hearing of evidence. It is not about the recommendations or the consideration, which is done by the Auckland Unitary Plan Independent Hearings Panel. So the hearings session is not a decision-making step.

I thank the Minister in the chair, Louise Upston, for taking the floor to try to explain that particular issue around the reduction of the quorum for the Auckland Unitary Plan Independent Hearings Panel from three members to two, under clause 4.

On the one hand, I am a little more satisfied that this is not going to become the norm, which is what Phil Goff was saying just now as part of his contribution. But, on the other hand, I am still vexed and actually quite concerned that although she has said that the two-person panel will be site-specific—and I can understand that, because there are a lot of issues to be looked at—it is not going to be a decision-making process, and that does actually create some concerns. That is because these people are going to tasked with the job, and given the responsibility, of making recommendations around a particular issue, yet they will not be able to make that decision and will cast that back to a wider group who have not been part of hearing the submissions and sharing the evidence, and therefore will not be fully apprised of the information in order to make that decision.

In some ways it is comforting to know that this is going to be—using the word from the Minister’s mouth—exceptional rather the common occurrence, but at the same time the panel is not going to be able to make a decision or make recommendations, which will have to be passed back to people who have not been part of hearing the evidence around that. I do not believe that that is a good way of making decisions on issues. I know from my own personal experience of being an Auckland MP that people are extraordinarily worried about some of the issues, whether it be height to boundary, whether it be the concentration of houses, whether it be heritage buildings—a whole range of different issues. So that raises, I believe, yet another concern that we have, certainly as Auckland MPs, as to what we are looking at in terms of the Local Government (Auckland Transitional Provisions) Amendment Bill.

The second part of the Minister’s contribution I want to pick up on is the issue that Ron Mark raised before, which is that going from three members down to two means that we actually do not have a deciding vote. Those panel members do not have voting role—I understand that from the Minister—but we may instead have two competing recommendations coming back from that two-person panel, from which a decision is going to be made without actually understanding the full ramifications of the evidence that was heard. So that seems to me to make the situation worse rather than better.

So we have dug ourselves into a hole of complexity and bad decision-making around this, which will provide Aucklanders with no real feeling that they are getting a better process rather than a worse one at the end of this. So I thank the Minister for standing up and taking that—

💬 Hon Phil Goff: Brief call.

—brief call on clause 4, but it still does not address some of the other issues.

I come now to clause 7—I am sure that there will be other people who want to pick up on the Minister’s contribution just now. Clause 7 provides for the expansion of the hearings panel from seven to 10. Once again, I think we support that, and I can see the merits in having an expansion in the numbers, excluding the chair. But the choice and the decision about who is going to be on that hearings panel is something that the Minister has not addressed, and I think that this actually does cut to choice—to whether Auckland can decide who is going to be on that panel or whether it has to be done centrally and top down. I want to come to the, I think, very good amendment that Phil Twyford has put forward as part of that, with the provision to have the Auckland mayor involved.

I move, That the question be now put.

I am very pleased to take a short call on this bill. The Green Party objects to the Local Government (Auckland Transitional Provisions) Amendment Bill partly because of the process—the lack of any select committee process, and the fact that we are dealing with it under urgency—but also, as other colleagues have explained, because we objected to the principal Act and the fact that it is the Ministers, not the Auckland Council, who will appoint the members of the Auckland Unitary Plan Independent Hearings Panel.

This Government does not trust local democracy, neither in Auckland nor in Christchurch nor in wider Canterbury, because in all of those areas it has got its hand-picked commissioners making major planning decisions rather than the councillors who are elected by citizens. In respect of this bill, Mr Twyford was asking questions before, around clause 7, which the Minister has not answered. I assume that the Minister of Conservation is appointing members of the panel because the Minister has responsibilities under the regional coastal plan and that the unitary plan, which the Auckland Council is now going through the hearing process on, actually includes provisions in the regional coastal plan. But it is absolutely wrong for Ministers to be appointing the panel members. It should be Auckland councillors, and this bill does nothing to correct that.

I would also like to talk to clause 5 and a very good amendment in the name of Phil Twyford, which is quite similar to some concerns that the Green Party had on the original Act. They are that this bill is allowing the hearings panel to make recommendations that go beyond the scope of submissions. It is well settled, in terms of the Resource Management Act, that when a hearings panel is makings its decisions it confines those to the submissions that it has heard, because otherwise there is the likelihood and possibility that we will get random ad hoc changes to the plan being made by the hearings panel that do not relate to the submissions that have been brought before it, that do not relate to the evidence that submitters have presented, and that go outside the scope of submissions. So throughout the Resource Management Act this limitation on the scope of submissions has ensured that natural justice prevails, and that the panel is making decisions on the evidence that is brought before it, on the submissions that are brought before it.

So Mr Twyford’s amendment will be supported by the Green Party because it seeks to ensure that the panel can only make decisions and make recommendations that are within the scope of submissions—that there is not the ability for the hearings panel to act in a very arbitrary way, go beyond that process, and make recommendations to the council that may advantage particular parties and on which it has not heard evidence. So we will certainly be supporting that.

But this bill highlights provisions that should have been tackled when the principal Act went through. They should have been tackled subsequently, when they came to light, and when the Government had adequate time to address them. Instead, what has the Government done? It is ramming them through under urgency, to limit the ability of the public, of Aucklanders, to actually have their say in this process about how their major document, the Auckland Unitary Plan, should be finalised and developed. It is again another attack on democracy, and another example of the Government failing to trust local democracy by having all of the power exercised in the Beehive rather than by the council.

I just want to acknowledge that tantalising intervention by the Minister in the chair, the Hon Louise Upston—just enough to get members interested in some real debate and information—but I do not want to deter the Minister from intervening again, because there are a number of questions that have been put on the table. I did notice that we have been joined by the Minister of Local Government. She must have been following this bill. I am pleased that she has taken time off from her busy schedule of vilifying State house tenants to join us for this debate.

I want to talk about clause 5 of the Local Government (Auckland Transitional Provisions) Amendment Bill, and note that section 144 of the principal Act provides that “The Hearings Panel must make recommendations on the proposed plan after it has finished submissions,”. It has to hear all the submissions, all the deliberations, and then make its recommendations and its findings in one go, at the end of the process. We have been hearing about, you know, 5,000 site-specific zoning submissions by the people of Auckland that the Auckland Unitary Plan Independent Hearings Panel is desperate to get through, so it can report in time on 22 July next year. I think we all understand the logic for this, but it does raise certain questions, and I would really appreciate the Minister paying attention to this and giving us a response. There is no doubt that clause 5 adds some practicality, allowing recommendations to be passed on to the Auckland Council in a kind of drip-fed way, which will expedite the whole process by allowing the council to consider recommendations as the panel goes through its work. I think we can all understand that.

But clause 5 also raises whether matters will have been properly considered in the whole, because none of the issues that the Auckland Unitary Plan Independent Hearings Panel is considering sit in isolation. That is the whole point of the Auckland Unitary Plan. It is a holistic approach. It is an integrated exercise in spatial planning. All of these things are connected: all of the zoning considerations, land use, and so on. They all impact on each other. I think that the risk here with clause 5 is that you will get a piecemeal consideration of issues in isolation, and the hearings panel may find that by the time it gets to the end of the process and it has made all its recommendations, it may not, in fact, be happy with the tenor or the tone or the emphasis of some of the early recommendations that it made on the basis of considering submissions and deliberating on just one topic. So I would really like to hear what consideration the Minister and officials, in preparing this legislation for the House, gave to that issue, because I think that is something that needs to be considered.

I want to speak to my tabled amendment that Eugenie Sage just made some comments about. It deals with clause 5, and it replaces new section 144(5) with the following sentence: “The Hearings Panel is limited to making recommendations only within the scope of the submissions made on the proposed plan.” I think this takes us back to the principal legislation. When the amendments were made to the resource management reform legislation, they allowed the hearings panel to make decisions that are beyond the scope of the submissions that they have received on the proposed plan and on any matter identified by the panel. This was controversial at the time, and we debated this in the House, because this is a break with normal practice under the Resource Management Act. It is an extraordinarily broad power that it gives to the independent hearings panel, and that is significant because the nature of this bespoke process, and intrinsic to the whole idea of the independent hearings panel, is that it truncates public consultation. It reduces the say that people have. It cuts the Environment Court out of the process, so we have to be extremely careful in ensuring that we balance the desire to streamline and speed up and simplify with ensuring that there are the proper protections about sound decision-making and consultation. If you look at the Environment Court, the normal process—

I want to start by thanking the Minister in the chair, the Hon Louise Upston, for the explanation to my questions on the issue of reducing the size of the quorum from three to two. I was writing frantically, Minister, trying to get it all down, but, from what was explained to the Committee, the Government is saying that this relates to site-specific areas, is at the discretion of the chair, and is for the hearing of evidence, not for decision making. It is not a decision-making process; it is for only the hearing of evidence.

I have got that, and I think I understand what was said. My difficulty is that I have got the primary legislation open on my laptop, and I am going through it clause by clause, trying to marry up what I have just heard with what I am reading in this legislation. So I am going to have to, unfortunately, ask the Minister to explain again for me. I am not a lawyer. I never went to university. Actually, I started my trade as a mechanic in the army and worked my way through to end up commanding troops, but it seems to me that something is not matching in here. So I am really going to need to defer back to the lawyers in the Chamber at the moment. I am looking at Mr Grant Robertson now and hoping that he will get a call to validate, or maybe argue against, what I am trying to propose.

I have looked at clause 4, which amends section 136, “Hearing procedure”, in the principal Act. If I go to section 136 of the principal Act, I would assume that the entire authorised procedure for this Auckland Unitary Plan Independent Hearings Panel would be laid out clearly there. It makes no mention in there of the hearings panel being restricted to site-specific considerations only. It makes no mention of it only hearing evidence. In fact, in subsection (1) it says: “At each hearing session, no fewer than 3 members of the Hearings Panel must be present.” Well, it is going down to two. It goes on to say: “(2) If the chairperson is not present, he or she must appoint another member as chairperson …”. That is going to be interesting.

As I said before, if there was a quorum of three and the chair was not there, then three would decide who was going to be the chair. If there is a quorum of two and the chair is not there, we are probably going to spend half our meeting arguing about who is going to be the chair. It just seems a whole lot easier if you leave the quorum at three, and then we can get a clear majority, appoint a chair, and move on. That is the first point.

As I go through the hearing procedure provision I can see nothing of what the Minister has explained to us—and I absolutely accept that the Minister will have taken advice from officials. So what I would like now is for us to get advice as to where that advice we have just received appears in the legislation or is cross-referenced in the legislation, because it appears to me that it does not appear in the legislation. If I go to section 164, “Functions of Hearings Panel”, in the primary legislation, what do I find? It is clear that section 164, “Functions of Hearings Panel”, does not in any way, in that very short section—section 164(a); (b)(i), (ii), (iii); and (c), (d), and (e)—restrict the hearing of a quorum of two. Help me, please, because I cannot see it.

The Minister of Local Government is here. She is having a quiet chat, so she might be able to take a call and help us understand this, but I cannot find it. I find no reference within the legislation to the explanation we have just received—that it empowers and enacts those thoughts into reality. So I am asking for help, guidance, so that we in New Zealand First can continue to support this legislation through and support the Government in doing that.

New section 144, inserted by clause 5, is very specific. We will just stay with the amendments to section 144, not what I have got in front of me on my laptop, which is the primary legislation. New section 144 is very clear. It is headed “Hearings Panel must make recommendations to Council on proposed plan”. It says it must make recommendations. It does not say: “unless it is a quorum of two, and therefore they can’t.” It says: “The Hearings Panel must make recommendations on the proposed plan, including any recommended changes to the proposed plan.” It says “must make”. It does not say: “unless there’s only a quorum of two.”

Subsection (2) of new section 144 states: “The Hearings Panel may make recommendations …”—may make recommendations. It does not say that it is not for decision-making purposes or recommendation-making purposes if there is only a quorum of two. It does not say that. I hate to be a pain, but I am struggling, and we want to support this legislation through—

I do want to pick up on Mr Mark’s contribution. He should have become a lawyer, judging from that contribution. He could defend himself from time to time as well, which might help. But I believe his analysis was spot on. I do thank the Minister for answering the questions that were raised because, as Mr Mark noted, she did that genuinely, on the basis of the advice she got from the officials.

But there is an issue here, and it does require us to look at the substantive piece of legislation that is being amended, the Local Government (Auckland Transitional Provisions) Act. This Act establishes—beginning at section 128 and running all the way through to section 150—how the Auckland Unitary Plan Independent Hearings Panel will work. The problem with the advice that the Minister gave us is that there is only one type of hearings panel. There is not a different range of hearings panels. There is not such a thing in law as a site-specific hearings panel. That is what the Minister said.

She said there would be decisions made about whether there would be three or two members on that panel, as clause 4 of this bill allows for, on a site-specific basis, at the discretion of the chair. There is nothing, from sections 128 to 150, to create that. There is simply a thing called a hearings panel. If that is the case, the hearings panel then has to do all of the things that the Act asked, which, as Mr Mark has just told us, under replaced section 144, the title of section 144 is “Hearings Panel must make recommendations to Council on proposed plan”. It does not have an option. If there are two people at a site-specific meeting, where we do not know who the chair necessarily is, that group of two people is obliged by law to make a recommendation. So in respect of what the Minister has told us, it is simply not the case in law.

It may be the intention of the officials or the intention of the Government to create a situation where a panel of two would not make a recommendation, but the problem is that is not what the law says. Mr Mark’s original question, asked now nearly 2 hours ago, still stands. The original question stands. What do we do when there are two people serving as the hearings panel who disagree on a recommendation? That is quite possible. That remains quite a possible situation. Under the law, under section 144, even as amended by clause 5 of this bill, they will be obliged to make a recommendation.

So I ask the Minister again to stand up and explain to us how, in fulfilling its role under the law, a hearings panel now potentially made up of two people will resolve a conflict, because Mr Mark’s question stands. I understand the practice that the Minister believes will now take place, but that is not the law. A hearings panel of two, who fail to make a recommendation on the proposed plan, will be in breach of the law. They will be in breach of section 144 of the law. This is the difficulty caused by moving from three to two members as the quorum. We have not had an adequate explanation as to how the law will be fulfilled. I think the Minister might be able to get further advice about that, because I suspect that the officials have talked about it. I am happy to give a bit of time for the officials to have their conversation about this.

💬 Dr David Clark: A coin toss.

My colleague Dr David Clark suggests a coin toss. I think Aucklanders deserve better than that. I think Aucklanders actually deserve to know how this will work. We understand why parties in this Chamber, with the exception of our colleagues in the Greens, are supporting the principles of this legislation. We know that the unitary plan process needs to speed up. We know that there needs to be a more efficient process. But what we cannot be doing under urgency is passing law that is contradictory, because we will be back yet again, saying “Hang on a minute. Actually we don’t want a hearings panel of two to have to make a recommendation, because what if they can’t? What if they can’t agree?”. So perhaps there does need to be an additional clause that says exactly what the Minister told us in her intervention—that if there is—

I move the question be now put.

We have had—[Interruption] Order! No, no points of order; I am on my feet. We have had an hour and 50 minutes on this debate. There have been 21 calls, and there have been only four members who have spoken against the provisions of the bill, so I am prepared to accept a closure motion. The Committee can decide whether it accepts it or not.

I raise a point of order, Mr Chairperson. I absolutely accept your ruling. The Standing Orders are very specific about the form of words that a closure motion must take. The form of words the member just moved do not meet the requirements of the Standing Orders.

I believe that that may have been because of the absolute commotion, and that my colleague—

No, that is not a—[Interruption] That is not a reason. If the closure motion—

I seek leave for my colleague to be able to hear that you had given him the call, because that was the problem.

No—there is some confusion about this, so I will not accept the closure motion. I am now going to call Chris Hipkins.

I appreciate this opportunity to make a contribution to this debate. I want to turn my attention to clause 5 in Part 1, which amends section 144 of the principal Act. I want to talk to subsection (5) of that particular new section 144, because it deals with the Auckland Unitary Plan Independent Hearings Panel and the recommendations that it can make. The issue that I want to canvass, which has not been canvassed by any of the other speakers so far, is the power that the hearings panel is being given to make recommendations outside of the scope of the submissions that it has received.

The conventional wisdom, if you read the rest of the section, would be that the purpose of a hearings panel is to put forward a plan, get the feedback on the plan, and then make amendments as to how the plan may be changed based on those submissions. But this particular section gives the hearings panel a much wider remit than that. It says that the hearings panel can basically do what it likes, regardless of what the submissions are actually saying. So the hearings panel could actually go through and say: “There’s some issues that we feel are important that weren’t raised by any submitters at all, and we’re going to make recommendations based on that, just because we feel like it.” It gives the hearings panel quite a significant scope.

I think that that stands in a bit of conflict if you look at subsection (8)(c), which specifies what the reports of the hearings panel must include. A report of the hearings panel must include “the reasons for accepting or rejecting submissions and, for this purpose, may address the submissions by grouping them according to—” etc., etc. So basically it says that the hearings panel has to go through the submissions and say whether they are going to be accepted or rejected. But then it can throw a whole lot of other things on the table that it does not have to go through a similar kind of process for, because the panel can just make recommendations in its own right, without reference to submissions.

It seems to me that if the purpose of the hearings panel is to get public feedback on the plan, why would we give it this much, much wider power to make whatever recommendations it feels like? Bear in mind that the recommendations that the panel makes that are not related to the submissions could well be things that the submitters would have had a view on and would have wanted to make submissions on, had they known that those were the items being discussed. Potentially, what this does is it means that the recommendations that come out of the report of the panel can recommend quite significant changes to the plans without bearing on the submissions. It seems to me that that cuts against the whole purpose of what this is all about.

The other point that I want to deal with is section 144(1) in clause 5, which says that “The Hearings Panel must make recommendations on the proposed plan,”. The question that I have got is: why is it necessarily a “must”? What if, having heard all of the submissions, the hearings panel decides it does not want to make any recommendations, and is actually quite happy with the plan as it stands? Why the word “must”? I think, again, that cuts against the grain. When you consider that in light of section 144(5) in clause 5, which says that the panel’s recommendation-making powers are not limited to the matters on which people have been submitting, it basically says that if panel members go through all of the hearings and they do not want to pick up any matters that were covered in the submissions, they must make some up. They must actually come up with something, because they are not given the option of not making recommendations. They are told that they have to make recommendations.

So I think that I would like to hear a justification from the Minister on both of those points—first of all as to why they are given this wider power to make recommendations that fall outside of the hearings process. This is a hearings panel, so why is it that the hearings panel has the ability to make recommendations on issues that it has not had hearings on and it has not received submissions on? The second point is why it is that it must make recommendations. And, of course, coming back to some other contributions to the debate, I think that that raises issues around the constitution of the panel. What happens if the panel is unable to reach an agreement? It has been told that it must make recommendations, but it might not necessarily be able to reach an agreement on what those recommendations should actually be.

So there are a whole lot of questions here that have not been answered by the Government because, aside from a very brief aside from the Minister that clarified one issue and actually probably raised more questions than answers, we have not heard from Ministers around these quite detailed and specific questions members have been raising.

I move, That the question be now put.

I raise a point of order, Mr Chairperson. I seek your guidance. I waited, recognising it is completely at your discretion when Part 1 is put, but I seek your guidance as to what remedies might be available to me, having sought the call for a long period.

The member will sit. No, I am going to deal with your point. [Interruption] The member will sit. If you wish to have a call, that is up to how your whips allocate the calls. We have moved on from there. We are now going on to Part 2, so there is an opportunity to seek a call on Part 2. That is what we are now dealing with. [Interruption] No. We are on Part 2.

I raise a point of order, Mr Chairperson. I think, in the heat of the moment, you might have made a ruling that you did not intend to. The calls in the Committee stage are nothing to do with the whips. The whips cannot allocate calls in the Committee stage—in fact, it is at the discretion of the Chair.

The issue is that this bill is going through under urgency. I accept that Part 1 is done. We are through Part 1 now. Members who were seeking a call on Part 1 and did not get it have of course now got Part 2 and the title and commencement clauses. I just seek some reassurance that there will be some flexibility for those members who have not spoken on Part 1 but who do want to speak to those issues—that they will still get some leniency in being able to do so in subsequent parts of the bill.

I thank the member. I have a list of who speaks and who does not speak. Over the course of this urgency over the last 3 days I have sought to give the call to those who have sought calls. But the matter comes down to repetition and relevancy at the time. The previous presiding officer for Part 1 made that very clear, and I have carried that through. Now we have the opportunity to debate Part 2.

Part 2