Local Government (Auckland Transitional Provisions) Amendment Bill

I raise a point of order, Mr Chairperson. This is a matter relating to Part 2. It seeks further clarification based on the ruling you have just made. In respect of the antidote to repetition—

No, no—look, you are trifling with the Chair. The member will sit. The member will sit. You are just wasting time. That is all that is happening here. I am seeking someone who wishes to take a call.

Part 2 has two clauses. The first, clause 9, is a validation clause. What clause 9 does, by adding new section 170, is validate the closing date for submissions on the proposed plan that was adopted by the Auckland Council. Also, new section 171, also added by clause 9, validates any hearings sessions of the Auckland Unitary Plan Independent Hearings Panel that were held concurrent with another session. I want to come back and focus particularly on clause 9, but I will just mention clause 10, which is about consequential amendments. I have got a couple of questions about that as well.

What we are predominantly dealing with in this part is validations. The word “validations” has a nice sound to it, but what does it actually mean? A validation is what you do after the event, to remedy a cock-up in earlier rushed legislation to retrospectively justify—

The CHAIRPERSON (Lindsay Tisch): Order! That is a word that has been ruled out. The member will not use that word.

A validation is what you do to remedy a mistake made in previous legislation, and to retrospectively justify what has been done illegally and without authority.

When we do these things retrospectively we need to look at what lessons can be learnt from how the mistake—if you prefer to call it that—was made. I am conscious that this clause validates changes that I think were made in the amendment legislation that was passed 2 years ago. The irony of what we are doing in this session today is that we are considering legislation that has not gone to a select committee.

Let us think for a moment about what the purpose is of taking legislation to a select committee. It is, on the one hand, to give the public input to make sure you have got the solutions right and to give the experts input, but on the other hand it is to allow the select committee to work in a bipartisan way to prevent mistakes from being made in legislation. So what we would have done in a select committee is we would have had the parliamentary counsel before us to make sure that the drafting was accurate, we would have had the officials before us to give advice, and, unlike in the Committee of the whole House, we would have been able to cross-examine the officials.

I do not think that happened back in 2013, and the irony is that we are doing exactly the same thing again. We are rushing through legislation that has not been considered by a select committee, and I can guarantee that we will be back again to repair more mistakes that are made because we are once again passing legislation in haste.

I want to ask a couple of questions of the Minister in the chair. The first validation we are doing is the closing date for submissions to the Auckland Council of 28 February 2014. We are remedying a mistake that relates to events that happened 20 months ago. The question that I have is: what are the implications of leaving it for 20 months before you validate this piece of legislation, which did not create the proper authority, and why has it taken 20 months to remedy this? This is something that should have been brought to the attention of the House much, much earlier.

I think the second validation is something that has wider consequences—that is, in this legislation that we are passing it allows the independent hearings panel to meet concurrently. But what we find in new section 171 is that we also have to validate the fact that they have been holding these panels concurrently for potentially a long period of time.

So my question to the Minister is: what is the scale of this mistake that we are rectifying in the Committee today? How long have those hearings panels been acting without legal authority to do what they have been doing, and what are the consequences of having left it so long to try to validate what the panels were doing without the authority of this House?

These are significant mistakes. Yes, we are rectifying them, and yes, the Opposition will support the Government in rectifying this situation, but the Committee needs to know what the implications are and why it took so long.

I want to carry on from the comments of the Hon Phil Goff and just briefly underline, really for the record, the irony and the bad taste that Part 2 leaves in the mouths of members on this side of the Chamber, validating the most elementary, mickey mouse mistakes that were made in the first round of the amending legislation that created these problems.

It is clear, I think, looking at Part 2, clause 9—one of the first things the chair of the Auckland Unitary Plan Independent Hearings Panel did was extend the deadline for public submissions in early 2014. It was one of the very first things that he did. What kind of thought was put into the amending legislation to set the original deadline for submissions? How many submissions were accepted unlawfully?

💬 Hon David Parker: How many were excluded?

Well, how many were excluded? Possibly none, but, I mean, it just makes a mockery of the whole process.

💬 Hon Member: She might know. They will have done some research.

Well, I would like to hear from the Minister in the chair, Louise Upston. She has already offered one contribution. I think the Committee deserves an explanation, in the absence of select committee hearings. So that is the first issue—the validation around the closing date for submissions.

Secondly, the concurrent hearing sessions: how many sessions were held concurrently and unlawfully? This has been going on all year. The hearings panels have heard thousands and thousands of cases, and what this bill does now, under new section 171(2) in clause 9, is it basically requires that any session has to be treated retrospectively, as if it had been held in accordance with the provision to allow for concurrent hearings and as if it had been chaired by someone who had been authorised as the chairperson.

So that immediately raises the question: how many of these sessions were chaired by a member of the panel who had not been lawfully authorised to chair those sessions? What a mickey mouse outfit. I am not blaming the independent hearings panel. It—

💬 Hon David Parker: Why not?

Well, the independent hearings panel members are good, professional people of high calibre, who have been put in the invidious position of operating within a legislative framework that was rushed and poorly thought through and shot full of holes—full of errors. And here we are, within 2 years, back in the House cleaning up the errors that were made then, retrospectively.

Of course, given that we are pushing this legislation through under urgency—no select committee process. I think we had a 40-second contribution from the Minister in the chair. We have not had any substantive input into this debate from Government members, other than that very, very brief contribution from the Minister in the chair, and really no substantive contributions from the Minister for the Environment. We do not even have the Minister who is responsible for this legislation here for this debate. It is just—

The CHAIRPERSON (Lindsay Tisch): Order! You cannot say that—you cannot say that.

I withdraw that. I apologise. I know that is against the Standing Orders.

So those are the validations. The other main section is the schedule, “Consequential amendments”, and the amendments to section 115 point back to new section 144 in clause 5, which we have debated here. It is consequential to the provisions that allow the hearings panels to make recommendations to the independent hearings panel on the basis of a number of submissions on one particular topic, without waiting for all of the submissions and the evidence to be heard before they make its recommendations. I just want to repeat that we have real concerns about whether that will make for a piecemeal and incoherent consideration of what is a very complex set of interlocking issues that the panel will be considering. The other sections—sections 124, 148, and 150—again all point back to the concerns that we raised under clause 5.

I want to speak a bit more to clause 9. I have found a remedy for my earlier concern in that Part 2, in relation to validations and consequential amendments, effectively makes the past like the future is now intended to be. If members wish to bear in mind that this also could reflect the future—

💬 Hon David Parker: Very existential.

A very existential way of looking at things. I shall speak to clause 9, but it does relate to clause 6, a clause that was not debated in the hour that I was seeking the call on Part 1. That goes to whether in the new world, as in the old, the bill will actually achieve its intended purpose, because with the natural justice concerns that were raised by colleagues about two-person panels and whether or not they are making decisions—and bear in mind that we are now retrospectively making that OK in this legislation—we have got to acknowledge, whether or not there are substantive decisions being made, that the decisions that two people will make, or in this case will have made, are actually likely to have had a bearing on the outcome.

For example, there is a decision to extend the hearing of evidence or a decision to allow extra questions and answers. When those transcripts are recorded from hearings, they become the basis of the reports, so there are political calls made by those around the table. When there are very few people around the table, there are very few people directing traffic, and if it is difficult to ascertain who has the lead on that, we may well find with that limited number of people on the panel that we end up with decisions that are shaped—even if they are not in substance taken—by the few members who remain on the panel.

That, I would suggest, may lead to a situation where there are more appeals to the High Court on questions of natural justice, which is something that was raised in passing—the issue of natural justice. If that is true, and if there are more concerns raised about natural justice and more appeals to the High Court, then we can imagine that, actually, the opposite of streamlining will be achieved. The purpose of this bill is to streamline the process, but if it ends up in there being more court disputes, it will achieve the opposite for those people who are trying to achieve a better way of doing things in Auckland.

For example, if there are only two people on a panel—and we are approving this retrospectively as well as being the future world—and one of those people attends to a text message, does the person presenting to the panel have the ability to argue that their case was not heard by a quorum of the panel? I think we would all agree that if somebody took a phone call and went out of the room, the quorum would no longer be achieved. But there are going to be points of dispute. When we get down to so few people hearing the evidence that is presented, there is the potential for dispute and for litigious processes to tie up these hearings. I think that is a serious thing, because if this bill is about streamlining and it actually achieves the opposite—because, as members have pointed out in the debate on Part 1, there is nothing that limits decision making by those few people in the room.

We have not had a convincing response from the Minister in the chair, Louise Upston, about how that might be so. Ron Mark raised the issue of the primary legislation making it clear that the panel can make recommendations and can make decisions along the way. How can we satisfy ourselves that those decisions will not be made by fewer and fewer people and be open to litigation because the quorum is so few? I think that this is a serious thing.

If it is as serious as I believe it is—and the Minister, I would hope, might be able to allay my fears—I would hope it has been quantified by officials. Officials will say what the likelihood of litigation is as a result of these lower numbers of people hearing the cases. The chances of having more appeals will be “x”, and that will increase the time taken to get resolution by “y”, and we can estimate the cost to those who are making submissions and the cost to the council in presenting evidence in the High Court in appeals, and so on, to be “z”. It would have been quantified somewhere by officials, surely—the cost of the risk of increased litigation.

I want to address two things. The first one will not take long. The first one is that I would like to know whether this new closing date for submissions of 28 February 2014 effectively puts out submissions that were made after that date. Are there submissions that were made after 28 February 2014 that, because of this fixed date now being imposed, are not going to be heard and do not have rights in the process? If so, how many are there? I think that is very relevant to the decision that we are taking here as to whether we agree to that new date.

The other point I want to make is in respect of new section 171(2) in clause 9, and also new section 115(ja), which is a consequential amendment set out in the schedule. The contrast here is to be made with what is happening in Christchurch. In Christchurch they had a need for a new plan as well, as a consequence of the earthquakes. There was recognition that the normal plan-making processes would take too long. Normal plan-making processes include appeals to the Environment Court, and at the Environment Court people have rights of cross-examination and can go into both the facts and the law. The reason that that process is being truncated in Christchurch is that they need a new plan and that would take too long, and so there is some justification for shortening the process.

There is also, I think, widespread recognition across most parts of the House that, actually, it does take too long to make Resource Management Act plans under the Resource Management Act. They take longer to make than it takes us to change a law in Parliament, and therefore democratically elected local government officials cannot be elected on a platform and implement it because by the time the next election comes around they still have not finished the plan change, which seems a bit nonsensical.

Against that, of course, there is the need to protect the private interests and the legitimate interests of both private people and public organisations. Why is that? Well, plans have enormous effects. They have multimillion-dollar effects. Whether you can subdivide land, how many storeys you can build on a piece of land, whether you can put a flat down below—all of these things have million-dollar consequences, very expensive consequences. They also have lifestyle effects. If you are allowed to have a commercial zone right next to you, then you are going to have to put up with a bit more noise and traffic. If you have a bar next to you that is going to be operating at all hours of the night, then that has an effect on you. These things have an effect on people, so what is the chance of changing that effect if you have not got a right to a fair process?

When you have more than two people on a committee, the chances are that the different concerns that are raised by people as to process are going to be more likely to be considered, particularly if you have got a lawyer involved. This is where I want to go back to the Christchurch plan. This Parliament protected against unfair process by ensuring that Justice John Hansen, a former High Court judge, is in charge of that process there, and therefore is more likely to impose upon his Auckland Unitary Plan Independent Hearings Panel—especially when he is there. But even when he is not there and he is authorising other forms of subsets of the hearings panel to hear submissions, it is more likely to be a fair process. Here, the hearing process, retrospectively, can be down to two people, and the chairperson does not have to be there. That is what we are doing in respect of new section 171(2). We are saying that the chairperson does not have to be there. So I want to hear from the Minister in the chair, Louise Upston, as to what assurances we can have that in respect of these smaller panels we are still going to have a fair process.

This is heightened by the provisions in new section 115(ja), where it says “the Hearings Panel may make recommendations to the Council in respect of a particular topic …”. If I am concerned about a particular topic and I go along to a hearings panel, and it does not even refer my concerns back to the council, what remedy have I got? It does not have to make recommendations in respect of my submission or the topic that I may raise, and I have got no appeal rights to the Environment Court because we have truncated them. I will have had no cross-examination rights at the original hearings panel to highlight my concern or to show that some other information that is being presented to the council committee is wrong. So my rights have been severely truncated as a person whose life could be affected by, say the fact that I have a tannery put up next door to my residential section—depending on where the planning line is drawn—or if I am a person who wants to bring forward affordable housing and I cannot do it because the minimum lot size is too high, or the prohibition on multi-storey buildings is inappropriate around a transport node.

All of these things have incredibly important effects, not just on the individual but on society as a whole, given the need that we have for more affordable housing in Auckland. I would like to hear from the Minister in response to those concerns that I have as to the fairness of the process, particularly given—

I want to thank the Minister for her earlier comments, and I hope that she recognises that without the benefit of a select committee process we are bound to be asking her questions, given the fact that we also do not have the benefit of legal advice or the officials’ advice.

I want to refer to clause 9 in Part 2, “Validations and consequential amendments”. All of us, or most of us, in this Committee hate having to pass legislation that revalidates something, particularly retrospective legislation. I note that in new section 170 in clause 9, we are having to validate the date on which submissions were received. Rightly, some of my colleagues have asked, well, how many submissions were received that were deemed illegal that we are now having to validate so that they can be received? Hopefully, the Minister will have a view around that.

But the other thing is—and this goes to the crux of the credibility of the Government—when did it first learn about the need for validation legislation? That is important because, as I understand, the hearings had started in September last year. The hearings started last year, and we are only now, over 12 months later, passing legislation that validates the work of the Auckland Unitary Plan Independent Hearings Panel. I think it is important that the Minister is able to tell the Committee when the Government first learnt that, because if it learnt that at the beginning of the year, why is it that we are only now passing this legislation?

The other question that I think is also important is: how many concurrent sessions have been undertaken so far? Because we are validating practices that, it is my understanding, the independent hearings panel has been doing. We are validating their actions. Does that mean that the independent hearings panel has been undertaking concurrent sessions and site visits, as the Minister said earlier? Does that mean that the independent hearings panel has been holding concurrent sessions with less than three members? Because we are now—

💬 Hon Ruth Dyson: Fewer than.

Oh, fewer than—fewer than, as my colleague the Hon Ruth Dyson says. Because the reality is that if we are validating practices that have been deemed illegal since September 2014, I would say that a lot of Aucklanders will be questioning: “Who did we present our submission to, if this is what’s happening now?”.

The other question I would like to ask is: did they all have a quorum? Did they all have three? Because we are now being asked to change the quorum from three to two. Obviously, the practice may have been that it may have been difficult to get three, but if the concurrent sessions have taken place, which we are currently validating as a result of Part 2, clause 9, then what happened? We do not have the benefit of an official’s report, we do not have the benefit of a select committee report, and I think it is incumbent on the Minister in the chair, Hekia Parata, to tell the Committee so that we can have at least some clarity that we are passing this in the spirit of doing the right thing for the sake of Aucklanders.

Is there anything else that has taken place as a result that we cannot see? Because here is what we have often seen: in addition to fixing the mistakes that the Government has made in the original legislation, we have also been asked to accept that we need to speed things up. I absolutely agree, but I do not believe that Aucklanders would want to sacrifice the quality of advice that the independent hearings panel provides for us because of the Government’s attempt to rush through things, because I suspect that if we are unable to meet the statutory time frame that the legislation provides, surely it would be for the benefit of the Auckland region that we take our time and get it right anyway? But all I am hearing from the Government so far, based on the little information that has been provided to us, is that it is so intent on speeding things through that I fear that we will be back here again and—

I do appreciate the opportunity to make what is, in fact, my first contribution throughout this Committee stage on the Local Government (Auckland Transitional Provisions) Amendment Bill. Relating to an earlier point of order, there are a number of members on this side who have not yet had the opportunity to make any contribution to this debate. Our whip has asked for some leniency to raise matters that may span across Part 2 and other parts. I have some specific new material that is important in the local Auckland context in my own electorate of New Lynn, and I wish to put that on the floor of the House today. I am going to then draw some specific conclusions from that, which I would ask the Minister in the chair, Hekia Parata, to comment on.

These are serious matters that go to probably hundreds of millions of dollars of future investment in my electorate, and they relate to previous expenditure of around $400 million of public funds invested by Auckland City Council, Waitakere City Council, and the Crown in the development of New Lynn to date. The jumping-off point for this issue is, in fact, in Part 2, in new section 170, added by clause 9, which speaks about the closing date for submissions on the proposed plan. It is the definition of “proposed plan” that I wish to reflect upon. Also, the issue of concurrence of sessions in section 171(1) in clause 9 becomes important in this real-life example.

I need to go into the facts briefly, and I hope that if I have not completed it, Mr Chair, you will give me some leniency on the call. In New Lynn, starting about 7 years ago, a major redevelopment project was undertaken, pursuant firstly to the old Waitakere City district plan and then to a special charette-based planning process that was crystallised in a concept document that was circulated for consultation in 2010. There was broad buy-in to that document. It was a published book. It was a vision for the future of the New Lynn town centre, which has now become one of the main metropolitan hubs under the Auckland Unitary Plan. That was in 2010, published by the then Waitakere City Council.

What that led to was a series of plan changes, including Plan Change 17, which rezoned much of the area around central New Lynn, which is now in a large special housing area. That is important to note, and I will come back to that. That, in turn, facilitated the dropping underground of the double-tracked Western Line, the realignment of several roads, and the completion of a new urban transit centre in New Lynn that has in turn transformed the town centre. An issue has subsequently arisen that that transit centre made it possible for New Lynn to intensify housing development, and I am advised that over half of the property within a kilometre radius of that transit centre has now changed hands since that investment took place. It is a dynamic and very different urban environment. There is a new development on what was the Crown Lynn clay pits and the recently vacated Monier tiles site, owned by the Australian corporation CSR, which has been purchased by a company called Avanda. That company is looking to build around 1,800 apartments on a combined site area of, I believe, around 9 hectares. This is a very intensive urban development, for which the planning is critical. Stage—

The CHAIRPERSON (Hon Chester Borrows): So can we tie it to Part 2.

Yes. So the words “proposed plan”, in section 170, relate in the minds of local stakeholders to the consultation document published in 2010 upon which the plan changes were based, which were then reflected in the current Auckland Unitary Plan. The issue that has arisen is that the special housing area and the subsequent stage one consenting decisions appear to have been made, and are arguably at odds with, certainly, the concept drawings and the spirit of the 2010 plan. That raises an issue for this Auckland Unitary Plan Independent Hearings Panel, which is—

The CHAIRPERSON (Hon Chester Borrows): And how does it raise an issue with Part 2?

With section 170. The Minister may wish to comment on whether the proposed plan that this refers to is the original plan upon which a large-scale development was based, or whether it is the current plan at the time at which the concurrent hearings panel sits. That is the first question that comes out of this. The second is what is the interdependency between the plan and any special housing area—

I understand that there have been a few questions on a matter relating to Part 2, and I just wanted to assist the Committee in its consideration. In the unamended Act there were potentially two viable closing dates for submissions, being 14 January 2014 and 28 February 2014. Validating 28 February 2014 as the closing date for submissions helps protect the validity of those submissions received between those two dates—those were 14 January and 28 February 2014. Thank you.

I just rise to take a quite short call on Part 2, “Validations and consequential amendments”, which is seeking to fix up mistakes in the original legislation, as I understand it. Because this bill is being rushed through under urgency, we do not actually have the opportunity to hear from submitters about whether the mistakes that we are correcting were caused by a lack of clarity in the legislation or whether the situation was more complex, leading to this misinterpretation, as it might be.

The Minister in the chair, Hekia Parata, has just stood up to clarify that the first point, around the closure of submission dates, is clarifying that there had been two dates, as I understand it—14 January and then 28 February—and that this is to clarify and provide that clarity that those submissions that were received between 14 January and 28 February are indeed valid. So was that problem in the lack of clarity in the legislation, or was that in the communication material that was sent out to people around closure dates? I am sorry if it is being obtuse, but I am struggling to get the detail of that, and that is because we have not had that select committee process.

When I have been thinking about this issue and why the select committee is so valuable, I have been realising that, actually, when we get the submissions around the details it helps us understand and fulfil our role as the Opposition in scrutinising legislation, as well as helping the functioning of Government. We get to find out how legislation is operating at the community level through the submissions. Those submissions are often reported in the media, which enables people in the community to then reflect on the impact of the legislation and the consideration of the implementation of that. Clearly, that is not happening in this process, and I really think that that, particularly when it comes to fixing up mistakes and validations in consequential amendments, is a significant point that we need to consider. It is about ensuring that we have a good lawmaking process and that people are able to consider what went wrong and properly interrogate that, and that is missing from this process.

There is the point about the closure of the submission dates and there is the point about new section 171 in clause 9, which validates any hearing session of the Auckland Unitary Plan Independent Hearings Panel that was held concurrently with another session. We have heard previously in this debate that this has been happening for a while and that this is validating that, but, again, we have not heard how long this has been happening for. Was this happening because the commissioners interpreted the legislation to think that that was appropriate, or was this happening just because they were not looking at the legislation and they were getting on with business and trying to expedite the process? That actually creates two very different situations, and we have not had the information to tell us what the problem was, to find out whether this is the appropriate legislative response to the problem.

That is not good lawmaking, and our responsibility in this House is to have appropriate oversight and to do our best to make sure that the laws on the books serve the purpose that we want. There are, of course, more broadly than this, principles of good delivery of principle and democracy. Whether the concurrent hearings are actually something that we want to be supporting—it seems, from what we have picked up in the media and what people have said, that maybe they are. But there has been no opportunity for somebody who may have had involvement in this process and may have had concerns to be able to come to this House and express those concerns. I think that, really, is doing a discredit to the communities of Auckland—to lock them out of this process—when I really do believe the first principle of decision making in this place—

Well, here we go again. Sometimes it seems a little bit like Groundhog Day in here, does it not, when we find ourselves addressing legislation for the umpteenth time because it was incorrectly passed in the first instance, or it was fundamentally flawed because it was rushed through, rammed through, because the Government of the day had a view, had a majority, and simply ignored or did not allow a full and proper process to take its path, which might have seen some of these wrinkles ironed out along the way.

Part 2, again, reinforces the value of having the select committee process, no less than Part 1 did. I am still a little disappointed—I will remain a little disappointed—that I still have not had satisfactory answers from the Government to the questions that I put regarding Part 1. Hopefully, here in Part 2, we might get some engagement from the Government, particularly bearing in mind that we are wanting to support this legislation because although we may argue that it has been done poorly, the process has been flawed, and it is not democratic, we are here, and this will help Auckland in its current bind, and the Auckland Council, which, at the very least, is made up of duly elected people, supports the legislation.

So, again, if I was to look at Part 2, I would recognise a couple of things. We have a new Part 2 to the primary legislation—there was no Part 2. Part 2 of the bill consists of new sections 170 and 171, which seek to validate certain things that were done before the enactment of this bill that we are processing now. It validates the closing dates of submissions. It validates any hearing session of the Auckland Unitary Plan Independent Hearings Panel that was held concurrently with another session by providing that the provisions of the principal Act, as amended here, must be treated as having applied in relation to the hearing session. And the chairperson of the hearings panel must be treated as having made the necessary directions under these provisions—except that the chairperson did not, and the hearings were not in compliance with the legislation of the day. New section 170 deals with the closing dates of submissions to councils on the proposed plan. It talks about how “Despite section 123(7) and (9), 28 February 2014 must be treated as if it is, and always was, the closing date for submissions …”, as opposed to 14 January 2014—except that it was not.

Once again, we have fundamentally flawed legislation. Despite 16 attempts by the Government to patch up its dodgy primary legislation, we still have flaws here, we still have problems here, and here we are in urgency seeking to validate actions that were illegal. We are seeking to say things that happened were legal when they were not. Fundamentally bad lawmaking—fundamentally bad process.

Go to new section 171, “Concurrent hearing sessions held before 2015 amendments”—and what am I looking at? My note says “Ron, go and have a look at the bill”—chiding myself. Here we go: “Concurrent hearing sessions held before 2015 amendments (1) This section applies to any hearing session that was held concurrently with another hearing session before the commencement of the Local Government (Auckland Transitional Provisions) Amendment Act 2015 (the 2015 Act). (2) The hearing session must be treated as if—(a) this Act as amended by the 2015 Act applied in relation to the hearing session; and (b) the hearing session was—(i) held in accordance with a direction given under section 165(aa) … and (ii) chaired by a chairperson appointed under section 165(b) (as amended by the 2015 Act) if the hearing session was chaired by a member other …”—it goes on and on, except that what this new section raises is a series of questions as to the situation that arose, the issues behind those situations, and the reasons for adding Part 2 and these two new sections, sections 170 and 171.

That, again, reinforces the value of having select committees. If this bill had gone to a select committee, we would have had the opportunity to look at these two sections and ask the Auckland Council what happened. We have had no such opportunity. The questions we might have asked—

I am going to make only a brief contribution in this Part 2 debate. The reason that I rise to take a call on this is that it does deal with some retrospective legislation, which is something that I am never particularly comfortable with when we do that in the House. We have done a couple of other bills that have retrospective effect during this urgency session, and I want to remind members of the Legislation Design and Advisory Committee’s advice to the House and to lawmakers with regard to retrospective laws. It states: “Legislation should not affect existing rights and should not criminalise or punish conduct that was not punishable at the time it was committed. The presumption against retrospectivity: The general rule is that legislation should have prospective, not retrospective, effect …”.

When you consider what is happening with this particular validation—this retrospective legislation here—in fact, I do not think that is in any way in conflict with what the Legislation Design and Advisory Committee is arguing. If anything, one could argue that not passing this legislation would be the violation because people have, in good faith, participated in the process, made their submissions, and had their hearings, and, potentially, if this validation does not take place, they could find that that whole process was invalid and will have to start again. I would almost go so far as to say that to be consistent with the overall principle that underpins what the Legislation Design and Legislation Advisory Committee is arguing here, we probably do need to pass this bill to avoid any confusion and to ensure that all those who have already had their say and had their submissions heard are still considered, and that they did not waste their time.

Although, generally speaking, I am relatively uncomfortable with retrospective validating laws and retrospective provisions in laws, in this case I suspect there is probably good justification. I think, however, it is incumbent upon the Government to answer the questions that have been put, particularly the question by the Hon David Parker, which was around the particular date of 28 February and whether in fact validating that date results in any exclusion of people’s submissions where otherwise they might have been able to argue the case that they should have been included. I have not had a response from the Government on that, which is somewhat disappointing. So, overall, like I said, I have looked quite carefully at these retrospective provisions, and although generally I would not support them, I think in this case there is probably a reasonable justification for doing so.

I have been dying to take a call all morning so I appreciate this opportunity to contribute to Part 2, and I also want to focus on the validation provision in new section 170. I do thank the Minister for the clarification because, essentially, there was some requirement under section 123(7) of the principal Act that referred to a period of 60 working days for submissions to have been received after public notification.

The question that I have, actually, is about the period between 14 January and 28 February 2014, and how many of the 9,400 submissions that period actually applies to. It is actually relevant. I have not had clarification about access to this process of the Auckland Unitary Plan Independent Hearings Panel. Essentially, Auckland Council went out and, as I said before, it got over 9,400 submissions on the development of the Auckland Unitary Plan. It also had an extended period when it got another 3,800 submissions. It then wrote the draft Auckland Unitary Plan, and that plan was given to the hearings panel to then consult and—this is my question for the Minister—presumably, only with people who had made a previous submission. That is where this validation clause actually becomes relevant.

My colleague the Hon Phil Goff said that there were 5,000 submissions to be heard by this hearings panel and they are a subset of the total 13,200 submissions. So, in fact, this validation clause is incredibly important if that is the relevance of this validation process. I need to know from the Minister whether or not the qualification to contribute to the hearings panel process is actually based only on your making an original submission to the Auckland Council unitary plan process. The qualification of what is a submission becomes incredibly important to the integrity of this whole piece of legislation.

If the Minister could confirm that, that would be good because, I guess, in looking at this particular clause you want to make sure that the clause actually has a purpose. So does this validation clause actually matter? I think that the Minister should let the public know the purpose, the rationale, and the relevance of this particular clause, because if it does then determine qualification for those submitters through participation in the process from the beginning to be heard, then actually that is really, really important. If it does not, and if it does not matter—and, actually, then I think the integrity of Part 1 comes into question. In fact, in new section 144(5) in clause 5 the hearings panel ultimately will make recommendations that actually may be outside the scope of the submissions that it receives, so there is not actually going to be a relationship between the submissions that it received when the cut-off date was 28 February 2014 and the ability of those submitters to make a contribution to the hearings panel process.

That is actually the crux of the argument. It is a serious point to be discussed because what we know through other parts of this particular legislation in Part 1—and I seek your indulgence, Mr Chair, just to reference back—is that under new section 144(8)(a) in clause 5 the panel can “identify any recommendations that are beyond the scope of the submissions made in respect of that topic or … topics;”. Also section 144(9)(b) says that: “any other matter that the Hearings Panel considers relevant to the proposed plan that arises from submissions … ”, but then it has got these two words: “or otherwise.” So “or otherwise” actually means that they stand apart or outside the process, and, in fact, that is what we are concerned about in terms of the integrity of this process. What that essentially says, based on what I have just read, is that this Auckland Unitary Plan Independent Hearings Panel can actually introduce a whole lot of material and make recommendations to the council that have got no rational basis in terms of the process that we have been through. So Auckland—

I really do appreciate the opportunity to take a second call on this small part so that I might finish off the point that I was trying to make earlier on. The point I had got to in my earlier call was around the questions that still hang in our heads as we deliberate on the bill before us right now, which we would have put at a select committee hearing and would have been able to have obtained answers to, summarised, and incorporated into our report, and which might then have become the reference material for this debate. But we do not have that. And I am really pleased with the last call that was just taken because it touches very much into the area of what I have just been deliberating on for myself here in the Committee.

So some of those questions that would have arisen at the select committee are: did the hearings start in September last year? Exactly how many submissions were received? When did the chairperson start acting outside the Act? What was the Office of the Auditor-General’s view of this? Was the Audit Office aware of it?

I know, having been a mayor, that when the Audit Office comes into a council, it does not just go through the books and trace every dollar that the council has spent for the appropriateness of that dollar spent; it traces the processes and the adherence to the statutory obligations and to the legislation of the Local Government Act. So then, clearly, the Auckland Council has been operating outside the Act, and that was known, hence the reason we are here today, retrospectively, making legal its illegal actions.

So the questions we would have asked are: what was the Audit Office’s view of this? Could we have a copy of its report? Could we hear its views? What flexibility will be shown to other councils that fail to meet their statutory obligations in such a way, or is Auckland to be considered to be a different case and, therefore to be treated differently, as we are seeing here today? I mean, if Carterton was not to meet its obligations and to not take its submissions within the time line, or to have confused dates and be telling people “Sorry, the closing date was 14 January. Oops, sorry, we’re wrong. It was actually 28 February.”, would that be acceptable?

There is a fundamental question that arises around the two closing dates, and it is this: how many people who thought the closure date was 14 January 2014 and not 28 February 2014 did not put in a submission when they could have but did not know they could have, because they had no knowledge on 14 January 2014 that Parliament would be sitting in urgency on 19 November 2015 to amend the legislation to make their late submission legal and, therefore, that they could have, and should have, put it in last January and had it legally accepted?

The next question is: what recourse is there for those people who followed the rule, realised and said “Hello, it’s 14 January. I can’t put a submission in.”, and did not put it in? What recourse is there in this part to allow them to appeal and to have their submission accepted now?

I have just had a quick glance at the right of appeals under section 155 of the Local Government (Auckland Transitional Provisions) Act. It refers me further to sections 156 and 157, and nowhere in there is there any opportunity for those people who acted in compliance with the law and realised on 14 January they could not put a submission in and did not put one in. Nowhere in this legislation is there an ability for them to get an appeal, and, in fact, the appeals part of the legislation specifically rules them out because you cannot have an appeal on a submission that was never lodged. It is a catch-22, nasty situation that was brought about by fundamentally flawed legislation, which is being amended retrospectively now. I think that is unfair, and I think, at the very least, those people deserve the right to have a select committee analyse and scrutinise this bill so there could have been even a minority view putting a different view back to the House.

I wait for the debate on the third reading. I think we have canvassed enough through Part 2 to make it very clear that we think this is sloppy, we think it is shoddy, and we think Auckland has been treated a little bit differently. We would hope the same leniency would be shown by the Office of the Auditor-General and by Parliament to any other territorial authority that is found to be operating its submissions processes outside the law.

I move, That the question be now put.

Motion agreed to.

Part 2 agreed to.

Schedule agreed to.

Clauses 1 to 3