Kaipara Validation Bill (First draft - in all its unintelligible glory)
Kaipara Validation Bill (Final draft to go to parliament)
The Bill amended by the Select Committee can be seen here.
FIRST READING - VIDEOS
SECOND READING VIDEOS
Mike Sabin - National
COMMITTEE AND THIRD READING
ALL SPEECHES (transcript)
VALIDATION BILL PASSES THIRD READING 07.12.13
The Kaipara Validation Bill pased through the Committee Stage unchanged and then passed through its Third Reading.
Only NZ First and Hone Harawira of Mana voted against the Bill.
The final step is for it to be signed by the Governor-General.
The transcript of the speeches and videos of them can be viewed by clicking on the appropriate ttitle in the box above.
SELECT COMMITTEE RECOMMENDS VALIDATION BILL 17.11.13
The Select Committee has unanimously recommended the Kaipara Validation Bill to Parliament with a few amendments.
The amended Bill can be seen here.
The Select Committee has now released the various reports that it obtained to help it with its deliberations. They can be viewed by clicking on the report.
SECOND READING OF THE VALIDATION BILL 17.11.13.
See the table above for transcript of speeches and the videos.
SUBMISSIONS ON THE VALIDATION BILL 07.07.13
Remember that submissions must be in by 25 July.
A guide to making a submission can be downloaded here.
To make an online submission go here and scroll down to the bottom of the page.
For help with online submissions go here
ADVICE ON CONTENT
This is to steer you in the right direction. Do not copy verbatim. Use your own words and speak from the heart. If you have a story to tell about the effects of the rates then this is your chance to tell it.
THE MRRA'S POSITION ON THE VALIDATION BILL 15.06.13 - scroll down
SUBMISSIONS FROM THE MRRA WHY THE VALIDATION BILL SHOULD NOT PROCEED AT THIS STAGE can be seen here.
A SUMMARY OF LEGAL EAGLE'S SUBMISSIONS
VALIDATION AT THIS TIME IS INAPPROPRIATE
DEMOCRACY: The commissioners are not elected and have no mandate to proceed with validation. "No taxation or validation without representation."
LEGAL SITUATION and FINANCIAL SITUATION: Kaipara is in a mess both legally and financially. The Bill is an ad hoc band-aid. It needs independent assessment of all the problems before any remedial action can be put in place.
OAG INQUIRY: It is pointless proceeding with the Bill before the OAG reports. The report could make recommendations that could have a serious effect on what is included in the Bill.
JUDICIAL REVIEW: Likewise, the judicial review, which is only a few months away, could declare the EcoCare debts and rates illegal. Why not wait?
SEPARATION OF POWERS: How can Parliament even consider changing the law, which is what it is effectively doing, when there is a case before the courts based on that law. This is breach of one of the corner-stones of our democratic system.
ONE OPPORTUNITY: Standing Orders allow only one validation bill in each calendar year. If the KDC gets this one wrong and does not include everything in the Bill then there will be a delay before it can go back again.
COST: Only $2,000 filing fee but $100,000 to 150,000, and probably more, in legal fees. Do it once and do it right. And why should ratepayers pay? The commissioners acknowledge that the Chief Executive and Councillors were incompetent. Why not recover the money from them? The ratepayers were innocent parties.
NO CONSULTATION: Ratepayers were not consulted when the rates were first set. They were not consulted on options for resolving the illegal rates issues. They were not consulted on the Bill. Yet consultation is one of the main principles underlying the LGA and the LGRA.
NATURAL JUSTICE AND HUMAN RIGHTS: It is only because of the determined actions of ratepayers that the illegalities have been revealed and finally acknowledged. The Council is now forcing though a validation bill, and making ratepayers pay, that validates all those illegalities. It is a total breach of natural justice, human rights and every principle of fairness and equity.
THE EXTENT OF RETROACTIVE VALIDATION: Validation should be for technical errors where the intention was clear. In most of the illegalities in the Bill it was impossible to tell what the intention was. Parliament is not validating the rates that were set, it is actually replacing them with new rates that could have been set. How can you validate a rate that was not even mentioned in some of the rating documents? That is an abuse of the procedure.
ACCORD BETWEEN THE COUNCIL AND RATEPAYERS: A validation bill must be the only solution to resolve the problem. In this case the only real solution is for ratepayers and Council to reach an accord whereby there are independent investigations into the financial and legal position of Council and then an assessment of the problems and possible remedial steps. This would necessarily involve a validation bill of some sort. The difference is that it would be consulted, it would relate to ALL problems, and it would be supported by ratepayers.
LIABILITY OF OTHER PARTIES: There needs to be an investigation into the liability of other parties for the Kaipara debacle before any remedial steps such as the Bill are taken.
MISCONCEPTIONS AND MISINFORMATION ABOUT THE BILL
MALIGNING OF MRRA AND OPPOSITION: The opposition to the Bill is not a small vocal minority, as suggested. Most of the ratepayers in Kaipara object to the Bill in its current form, and because of no consultation. The MRRA has tried to negotiate with the commissioners and the Minister to achieve an accord and have been rejected. Judicial review is the only way that ratepayers can get their voice heard.
FOR THE AVOIDANCE OF DOUBT: The commissioners have included some items in the Bill which they claim are not "irregular" but are being validated "for the avoidance of doubt". That expression has been cut from the Bill by Parliamentary Counsel as being inappropriate. But the commissioners still state that the LTP is valid even though it is in the Bill and all its matters of legal non-compliance are listed. That is rubbish. Either the plan is valid or it is not. And if it is in the Bill then it is invalid.
RATEPAYERS RECEIVED SERVICES: Not for the annual EcoCare rate in 2009-10 when the scheme was not up and running at 1 July 2009. Not for the rating of so-called units of demand which were totally outside the law. And why should ratepayers pay penalties when the Council's own lawyer said the rates were not enforceable. Ratepayers were no legally obliged to pay the rates because there was no legal invoice - the rates assessment notice. So how could they be liable for penalties on a debt that was not enforceable?
As for the rates from 2012 onwards, a large part of the rates was not for "services provided" but to repay the illegal debts of Council relating to monies that had been squandered or gone missing. No service of any type was received for that part of the rates.
As for the argument that ratepayers used the sewerage system therefore they had to pay the rates: The system was only valued in 2010 at half the amount that was actually spent. Pay for the cost of such a system, certainly, but why pay rates for the monies that were misspent or disappeared?
RATES COULD HAVE BEEN SET PROPERLY: This is a fantasy argument that the commissioners have put forward. IF Council had not made massive errors. IF it had realised its mistake. IF it had known about the provisions of the LGRA, THEN, in hindsight, it could have set the rates in such a way that they would have been legal. That is a total abuse of the validation system. The whole point of validation is to make valid rates that are perfectly complying except for minor technicalities that render them illegal. It does not give a council another fresh bite at the cherry to set the rates in a totally different and legal way.
PARLIAMENT IS THE HIGHEST COURT IN THE LAND: This is the old chestnut of Mike Sabin and the commissioners. It is not true and never has been. It relates to the House of Lords in the UK which used to be highest court in the land. That has now gone. Parliament in New Zealand does not sit as a court. The highest court in the land is the Supreme Court. Parliament is political arena where decisions are based on politics and the number of votes.
SPECIAL RULES FOR LOCAL GOVERNMENT: Why are local authorities treated so differently to businesses. If a business stuffed up as much as the KDC then it would go down the gurgler. Why should local government get preferential treatment and have all its incompetence validated by Parliament?
MINOR DISCREPANCIES: The commissioners, Mike Sabin and their supporters allege that the errors were minor, insignificant and mere oversights. That is a total misrepresentation of the truth. Council failed to comply with the whole format and terminology of the legislation. The rating documents were contradictory, confusing and meaningless. One of the rates was completely omitted and rates were called by different name. The unit of demand levy was utterly illegal. and many of the rates were totally outside the power of any local authority in New Zealand.
But more than that, the Chief Executive and the Councillors were warned time and time again of the illegality of their actions and the consequence of the illegality. They shunned all advice and stubbornly and recklessly continued down the road of illegality. This was certainly a case of malfeasance (doing a wrongful act negligently or recklessly) and possible malfeasance (doing a wrongful act deliberately).
MRRA ADVICE ON MAKING A SUBMISSSION 24.06.13
Submissions to The Local Bill.
They have to be in by 25 July 2013.
You can post them in at no (postage) charge to
Local Government and Environment Committee Parliament Buildings, Wellington 6160
Or you can do the whole thing on line by going to www.parliament.govt.nz
You can get the Bill as presented to the House by going to www.legislation.govt.nz
It is extremely important that everyone who can write or type puts in a submission, and demands to be heard.
It should be in your own words, and tell the story as it affects you personally and your community.
Here are some points that might be important to you and which you can expand on.
· All the other avenues should have been explored before this one.
· All the matters in the Bill are currently before the High Court and Parliament should never interfere in the judicial process
· It is absolutely unacceptable for Parliament to sweep wrongdoing under the carpet and allow perpetrators to go scot free.
· The proposers claim that all of the illegal acts could have been done legally- absolutely not true many were not possible under the law however they might have tried.
· The proposers claim that the money collected has been used to provide services- absolutely not true- in fact to this day nobody has accounted for almost all of this money.
· If passed this Bill will impose a rates burden on the Kaipara that will absolutely destroy its social and economic life.
· The Bill will cause rates to rise to unsustainable levels on the most vulnerable people in the District- the elderly, those on fixed incomes, those who for whatever reason cannot work.
If anyone wants to talk to me about it they can ring me (Bruce) on 09 4315413
The MRRA will submit an association view of the Bill and we will use our barristers to assist us with that.
THE MRRA'S POSITON ON THE VALIDATION BILL 15.06.13
1. The Bill seeks to address illegalities in the setting of rates by the KDC. The context is the KDC’s illegal entry into loans of over $80 million in 2005 to 2007 to fund construction of the Mangawhai Waste Water facility which is worth substantially less than that.
2. The Auditor-General has been inquiring into the Council’s management of the Scheme since March 2012.
3. The Government replaced the elected KDC Councillors with appointed Commissioners on 6 September 2012.
4. The rates burden deriving from the illegal loans is unsustainable by ratepayers. MRRA has led action by ratepayers to withhold payment of rates until the KDC’s financial management and situation is properly resolved. The KDC admitted that rates were illegally set but insisted that rates should be paid until a court declared them invalid.
5. The MRRA has tried to work with the KDC to get resolution but communication has broken down. It became clear that the Commissioners were determined to press ahead with retrospective validating legislation.
6. In March 2013 the MRRA felt it had no choice but to file judicial review proceedings seeking declarations by the High Court that the loans were illegally entered into, the rates were invalid, and that rates could not be set on the basis of the illegal loans. The case is awaiting timetabling by the Court.
7. The illegalities in entering the loans that MRRA is concerned about are not mere technicalities or formalities. It goes to the heart of local government’s obligation to consult ratepayers before entering into large financial commitments and whether rates can be set to cover illegal loans.
8. The MRRA is not opposed to validating legislation per se – if it is part of a wider package that addresses the problems. MRRA is still trying to reach agreement with the Commissioners on a way forward. The wider solution should involve Government providing leadership to broker a deal with the KDC, the MRRA and the lender banks to fill the financial gap faced by the KDC.
9. The bill retrospectively validates illegally set rates and penalties for their non-payment. It would be a breach of constitutional principle for Parliament to override the rights of citizens to seek vindication of their rights.
10. The MRRA wishes to have its day in court and urges the House of Representatives not to pass the validating bill.
HERALD'S CONCERNS ABOUT OAG 14.06.13
From today's Herald's Insider brief:
Some MPs are starting to wonder if the Office of the Auditor-General is starting to lose sight of its main work - making sure government agencies are sticking to the rules and their accounts are order. Recently it issued reports on child obesity and fundamental economic issues facing New Zealand. Both were interesting and well written, but one was similar to works by the Ministry of Health and others, and the second could have been pulled from any Treasury think piece on the economy. This follows the Auditor-General saying her resources were overstretched. There is also a growing focus by MPs on how auditors approved the Kaipara District Council's books and plans when things were going rapidly downhill, as Parliament looks at legislation to validate unlawfully set rates.
TRANSCRIPT OF FIRST READING 13.06.13
The transcript of the First Reading of the Validation Bill can be seen here.
OAG GETS A CANING 13.06.13
Perhaps one of the most startling thing about last night's debate in the House on the Kaipara Validation Bill was the acceptance from all sides of the House that the OAG, the Auditor-General herself, and Audit New Zealand had to bear a major responsibility for the Kaipara debacle.
That is especially surprising given that the Auditor-General is an Officer of Parliament and answerable only to Parliament.
The Auditor-General may shrug off criticism by disenfranchised ratepayers in distant Kaipara and simply refuse to deal with them, but it is a different story when her own masters lay into her, and her Office and agent, with some hefty criticism.
The problem is that the culture of the OAG that turned a blind eye to the illegality and excesses of the KDC - and also made it reject warnings from ratepayers that pinpointed the illegalities with absolute precision - is still ongoing.
How can we pretend that the report that the OAG is preparing about the EcoCare mess can have any validity when the OAG itself is widely accepted as being responsible for the problems?
Why has the report taken 15 months so far with no sign of any imminent release while the people of Kaipara are being financially crucified?
Why is the OAG allowing its appointed auditor to sign off the audit to the amended LTP when it knows that the projected income on which the whole future of the KDC is based has no factual basis? It is as fanciful and as dishonest as the original financial models that caused all the problems in the first place.
And why is the OAG ignoring the fact that the KDC has no valid LTP in place and is therefore operating outside the law? Complaints have been lodged with the Office, and, as in the past, they have been completely ignored.
I suspect that the OAG is in for some serious criticism in the next few months as the truth about Kaipara is revealed.
And if Parliament wants an answer to the question that was asked several times last night: If ratepayers don't pay, then where does the money come from? then it needs to look no further than the door marked OAG.
The OAG carries a truckload of indemnity insurance and should be one of many "interested parties" that should be under the laser light.
VALIDATION BILL- FIRST READING 12.06.13
The Kaipara Validation Bill passed its first reading in Parliament this evening. For the videos of the speakers refer to the blue box above.
CONSULTATION HIJACKED BY POLITICAL EXPEDIENCY 29.05.13
The Kaipara commissioners and local MP Mike Sabin have shown an incredibly arrogant disregard for the views of the ratepayers and the requirements of the Local Government (Rating) Act (LGRA) in their drive to have all the mistakes of the Council sanitised by a parliamentary validation bill that declares that 30 pages of blatant illegal errors are to be treated as valid from the moment they were made.
Under section 3 of the LGRA one of the three principle purposes of the Act is:
ensuring that rates are set in accordance with decisions that are made in a transparent and consultative manner.
That means that the whole basis of the LGRA is consultation with ratepayers before the rates are set.
When the rates in question were original set there was no transparency or consultation because the rates were so hopelessly drafted and the omissions were so fundamental that ratepayers could not even understand what rates were being set.
How can you consult on a rate that is completely omitted from the rating documents?
That was a fundamental breach of the LGRA.
When the errors were first discovered, Council was full of abject apologies and together with new Chief Executive Steve Ruru promised to set up focus groups to look at options for dealings with the illegalities.
The Minister of Local Government also realised the importance of consultation and made it part of his terms of reference that the new commissioners would consult with the ratepayers on those options.
It looked as if the transparency and consultation principle underlying the LGRA would be complied with.
Sadly, John Robertson and his men decided that consultation under the LGRA was not part of their scenario and in a very short space of time condemned any consultation to the rubbish bin. He dismissed ratepayer focus groups because he did not believe that it would "add value to the governance process".
With the arrival of the commissioners it appears that all pretence of complying with the LGRA and its fundamental principles became irrelevant.
This group of politically appointed autocrats were given the task of ensuring that ratepayers are held responsible for all the illegal debts and rates of the KDC, irrespective of the abject failure, in almost every aspect, to comply with the requirements of the Act in setting and assessing rates, and in spite of the failure to adhere to the basic principles of both the LGA and the LGRA.
Let us make absolutely no bones about the reality of the situation. Ratepayers were denied any consultation when the rates in question were set.
They were denied any consultation on the options for dealing with the errors once they were discovered.
And now they are being denied any consultation in the parliamentary validation process.
The commissioners and Mike Sabin utter baseless platitudes. They say that the rates would have been legal if the KDC had followed the correct procedure. That is risible. The rules are there to be obeyed and they broke the rules. It's a bit like a criminal saying that he wouldn't have committed an offence if he had complied with the law, therefore his action should be validated.
How many of us would love to go back and rewrite history and make it what it would have been if only we had made the right decision.
But what Mike Sabin and the commissioners deliberately choose to ignore is that setting the rates in the proper format is only part of the obligations of a local authority. The other major obligation is to consult with ratepayers, and the KDC has completely failed to do that at every step of the way.
The commissioners and Mike Sabin put out an awful lot of spin about ratepayers having a say at the select committee process. That is, and they know it, a total misrepresentation.
They know that the select committee is dominated by National and its supporters and that the vote will be on political grounds and nothing more. And, given the approach adopted by the government of late, there is a chance that the bill will be pushed through under urgency.
But that misses the main point. Ratepayers should be entitled under the law of the land to the protection of the LGRA and they are entitled to be consulted under that Act.
The Act is there to balance the power of the a local authority against the rights of ratepayers.
Ratepayers are obliged to pay rates BUT ONLY ON THE BASIS that the rates are set fairly, in compliance with the law, and following consultation with ratepayers.
That means that they should be consulted on the rates properly and in accordance with the LGRA, and not be given some consolation prize of possibly being able to make their views known to a select committee with a political agenda.
That whole basic principle of local government has been thrown out of the window. Instead of ratepayers being consulted on the rates by the local authority in accordance with the provisions and principles of the LGRA and LGA, the whole process has been hijacked by the National government which will now make a decision on the rates based on pure political expediency and nothing more.
Effectively what the commissioners, Mike Sabin and the government are now saying is that the provisions of the LGRA and LGA where ratepayers have any obligations are set in stone, but the provisions relating to the local authoirty that place legal constraints on it, set out matters of compliance, and spell out the principles and purposes of the Act, are simply optional and can simply be ignored at the whim of the local authority.
From my point of view I believe very much in the rule of law. I am prepared to pay my taxes and rates provided that government and local government abide by their obligations under the law. But where there is a flagrant breach of those obligations by a local authority, as there clearly is with the KDC in this instance, I believe that every ratepayer is entitled to withhold payment until the court steps in and makes a ruling on the matter.
Ratepayers have been denied the rights under the legislation and should withhold all rates until the High Court makes its ruling.
They should also let the commissioners, Mike Sabin and all MPs know what how they feel about their riding roughshod over the principle of consultation in the LGRA.
GARRY HOOKER 26.05.13
Dear Mr Ruru,
Kaipara District Council (Validation of Rates and Other Matters) Bill
Further to your letter of 1 May 2013 I write to object to Council's resolution to promote the above Bill. I do so on the following grounds:
1. The Bill was only one of three options identified by Simpson Grierson in their legal opinion to Council of 2 February 2012. There was no public consultation on that opinion and in fact a council report on the opinion by your Glennis Christie noted that same was incomplete, that Simpson Grierson had been requested to investigate further illegalities and that wide public consultation, which never eventuated, was required as options were explored.
2. No justification has been provided by Council to ratepayers for adopting a Rates Validation Bill, the most expensive option identified by Simpson Grierson. And yet Council is criticising the quantum of costs likely to arise as a consequence of its planned defence of the MRRA litigation. As a ratepayer, I strongly object to the double standards displayed by Council and to its intention to defend the MRRA action, which is contradicted by Council's support of the Rates Validation Bill. Council clearly should stop playing politics with ratepayers' money, concede the MRRA case on its merits and seek to contain costs.
3. The promotion of a Rates Validation Bill, without prior public consultation, amounts to a breach of the Terms of Reference of the Kaipara District Council Commissioners. Clause 6 (c) of those Terms of Reference required the commissioners to "Work with the Kaipara community and ratepayers and the Department of Internal Affairs to identify options for dealing with invalidy set rates and other legal compliance". That mandatory requirement was repeated in the ministerial letter of appointment of the commissioners.
The Council decision to proceed with a Rates Validation Bill, in the absence of public consultation and collaboration, clearly is beyond the commissioners' powers and must be ultra vires those powers.
4. The promotion of a Rates Validation Bill, without prior public consultation, also infringes Clause 6 (b) of the Commissioners' Terms of Reference and Section 93 of the Local Government Act. The former requires Council to comply with all applicable legal obligations, while the latter requires that Council always has a (valid) Long Term Plan. By promoting a Rates Validation Bill contrary to its Terms of Reference and in the absence of a valid Long Term Plan, Council is acting illegally. Accordingly, Council's resolution to proceed with the Bill can have no effect.
5. Certain provisions of the proposed Rates Validation Bill are so vaque that they are likely to be found invalid on the grounds of uncertainty.
6. The promotion of the above Rates Validation Bill, is contrary to Equity and good faith insofar as same will impose additional financial obligations on low decile district ratepayers without prior consultation and proper consideration. The process, which specifically rescinded Council's resolution of 16 July 2012 confirming its commitment to work with the local community, is not only illegal but reminiscent of bad faith. Not only will it make the task of rebuilding community trust more difficult, but it is likely to lead to further litigation against the commissioners.
LEGAL BOOBOO 2 09 05.13
The Winder validation bill is a shabby piece of work that is heading for disaster.
Let me tell you why.
First, the commisioners failed to consult with the community. Chief Executive Steve Ruru could make a long list of all the promises that he made, and the Council made, to consult with the community about the options for dealing with the illegalities. He knows to what extent the commissioners have betrayed the trust of ratepayers.
Second, the bill is utterly vindictive. It includes penalties for rates that everyone acknowledges were illegal and that ratepayers were not legally obliged to pay. It also includes rates that were ultra vires and that are totally outside the contemplation of the LGA and the LGRA. To argue, as Steve Ruru and the commissioners are, that a similar rate could have been set IF the correct wording had been used, IF a definition had been included, IF the rate had been included in the funding impact statement, IF the rate had been included in the statement of proposal, IF ratepayers had been consulted, IF..., IF ...., IF ...... Is just simply dishonest.
More than anything else it reflects the ruthless pettiness of the commissioners that pervades their whole autocratic regime.
Third, the validation bill is ill-considered, ad hoc and is going to put the Council in a very difficult position. The problem is that there are many problems of illegality that have not yet been full revealed or assessed. They are of course not included in the bill. That means that there will have to be another validation bill sometime in the future. That may well stretch the tolerance of parliament, and ratepayers will be forced again to pay another massive bill caused yet again by the incompetence of Council.
The view of ratepayers is that a validation bill will be necessary to resolve all the legal problems of Council, BUT that it should only be finalised when ALL the legal problems of Council have been identified. That means waiting for the decision of the High Court in respect of the judicial review, and following consideration of the report of the OAG in respect of EcoCare.
To go ahead at this stage when so many issues are up in the air is simply ludicrous.
Take for instance the EcoCare rates that the commissioners propose to validate. Even if validated those rates can only be valid if the EcoCare project is itself valid and the EcoCare loans are valid. You cannot set rates for a scheme that is invalid. So, if the High Court holds that the EcoCare scheme and the loans are invalid then it will mean that the rates based on them will be invalid even though they have just been validated because of non-compliance in procedural matters. Council will be forced to validate EcoCare and the loans via a new validation bill.
The situation can only be resolved with some independent expert appraisal. The ad hoc, autocratic, steam-roller tactics of the commissioners is only going to exacerbate the problems. The government has to step in with some creditable alternative before the commissioners create an even bigger financial and legal crisis.
A BLIGHT ON THE HISTORY OF KAIPARA 08.05.13
The commissioners have decided on the form of the validation bill that will be notified publicly and then lodged with parliament.
Ratepayers have all been sent a notice advising of the proposal and the bill can be viewed at Council offices or here.
The fact that the Kaipara Council has committed this litany of incompetence - which runs to thirty page - is bad enough, but, when you consider that it was warned at every step that it was acting outside the law and yet still went ahead with its mumbo-jumbo rates, it can only be seen as an arrogant and deliberate disregard for compliance with the law.
Remember also that the thirty pages of damning proof of utter ineptness only relate to illegal rates, mainly for EcoCare, and are just the small tip of a very big iceberg. Consider all the other instances of incompetence, illegalities, and breaches of procedure relating to not only EcoCare but including virtually every other matter that Council dealt with.
Ratepayers could fill a book with the failures of the Council to comply with its obligations.
Then think about all the instances where Council acted in secret, failed to go through a proper decision-making process, and failed to consult. There's another book for you.
For years this Council has acted more like a dictatorship than a democratic local authority operating pursuant to local government legislation and the rule of law.
And, while you are at, ask how all of this could happen when the Auditor-General acted as both auditor for the Council and as watchdog for the local government sector to ensure compliance with the law.
And also ask yourself why the Auditor-General - and for that matter the Minister of Local Government - turned a blind eye when they were advised of the continual non-compliance with the law.
That all of this was allowed to happen is shameful. It should motivate all MPs across all parties to take immediate steps to ensure that a local authority can no longer act is such an autocratic way outside the law. And they should also look at the suitability of the OAG in its present form to act as auditor and watchdog for the sector.
But what is even more shameful is that parliament will probably, if the government has its way, sweep all of this catalogue of ineptitude under the parliamentary carpet and make all the illegalities kosher and legal, as if they had never happened.
If parliament passes the validation bill then it will be a blight on the history of Kaipara, and it will be a very sad indication of the appalling state of local government in New Zealand and also evidence parliament's total indifference to the rule of law and democracy.
Big words, yes. But very big issues, and issues which should concern every New Zealander.
LEGAL BOOBOO 08.05.13
Has commissioner Winder, the legal brains behind the Validation Bill, committed a major bungle?
The Bill only goes back six years, presumably because of the Limitation Act. But the six year period in that act can be extended when the problems were unknown.
It is interesting that the Tasman Bill going through parliament at the moment goes back further than six years. And, given that Peter Winder has admitted that ALL rates have been invalid since the Kaipara Council first commenced way back whenever - unbelievable but true - would it not be advisable to include all of the rates ever set by the KDC in the validation bill?
If the Council is going to spend $200,000 on this farce then it may as well get it right.
GOVERNANCE FALLS FOUL OF POLITICAL EXPEDIENCY 03.05.13
Anyone who has any understanding of governance and the fundamental principles underlying local government legislation in New Zealand must be cringing at some of the comments made by the Kaipara commissioners in respect of the validation bill that they intend to bulldoze through parliament against the wished of the people of Kaipara.
Replacing elected Councillors with government appointed commissioners meant that democracy in Kaipara went out of the window last August. But that could have been a small price to pay to replace the chaos that went before IF the commissioners had engaged with the ratepayers and complied with their obligations in the terms of reference to consult with ratepayers in respect of the options for dealing with the illegal rates.
But no such luck. Right from the start the commissioners indicated that they would ignore their terms of reference, and the strong recommendations of the Minister's Review Team, and would ditch any consultation with the locals.
The commissioners spin machine is working fulltime to try and cast this travesty of governance in a different light. Take for instance the following statement in the latest press release:
In December last year Commissioners said a Local Bill was the best way to help resolve rating errors made back to 2006. They believed the Select Committee and public submission process would make it easier for local people to have their say. The Bill would ensure all mistakes would be fully exposed to public scrutiny, including to questions from Members of Parliament across the spectrum they said.
In other words, the obligation of the Council to consult with ratepayers - a basic principle of governance enshrined in all the rating legislation - has been axed at the whim of the commissioners and replaced by some nebulous, fleeting opportunity to make some comments in parliament's political arena.
And political arena it is. This bill is being forced through by the commissioners hand in hand with the government. The government has a majority in the local government select committee, and the government will ensure that the bill is enacted by parliament.
The opinions of ratepayers are irrelevant. The rule of law, fairness and justice are irrelevant. The KDC totally ignored the provisions and the principles of the LGA and the LGRA and what is left of the legislation will be nullified by a political act of parliament.
That is absolutely certain. And that is why ratepayers have been railroaded down this track.
The only way of stopping the commissioners freight train sweeping all before is for all ratepayers to make their concerns heard from one end of the country to the other. Let New Zealand know of the dreadful treatment that is being meted out to the ratepayers of our district and how the rule of law in Kaipara has become the victim of political expediency.
Support the MRRA's judicial review application and let the commissioners, Mike Sabin and the politicians know exactly what you feel about the validation bill.
The tragedy is that all the problems of Kaipara Could be resolved without any confrontation if the commissioners and those who are driving them pulled back from their autocratic mindset and entered into bona fide negotiations with ratepayers.
But that is unlikely to happen. Any semblance of governance has long gone from Kaipara. If anyone has any doubt about that comment then one only has to recall the words of commissioner Robertson when he rescinded Council's undertaking to form a ratepayer focus group to consider options for dealing with the illegal rates, because, as he said
"It would not add value to the governance process."
That in a nutshell is why ratepayers must join together and insist that we have our day in court.
PLUMBERS BILL SECOND READING. 17.04.13
The Plumbers, Gasfitters and Drainlayers Validation Bill passed its second reading in parliament by a vote of 61 to 60.
Comments made by speakers are very relevant to the Kaipara Validation Bill.
PLUMBERS BILL READING ADJOURNED 12.14.13
The second reading of the Plumbers validation bill was adjourned in parliament yesterday evening after the Labour Party indicated that it would oppose the bill. The report is here.
Kaipara ratepayers should listen to the speech by Ruth Dyson explaining some of the principles that are very relevant to the Kaipara validation.
PLUMBERS ETC AGAIN 12.04.13
All Kaipara ratepayers should read this letter relating to the validation bill going through parliament at the moment.
It shows how parliament is being used as a rubber stamp to validate all sorts of jiggery-pokery, but only for those entities like local authorities and regulatory boards that are deemed to to have a special status that places them above the law and in need of special protection.
PLUMBERS, GASFITTERS, AND DRAINLAYERS BILL 11.04.13
The above Bill has its second reading in the House today.
Below is a letter to the Green Party explaining some of the misconceptions that were in the report from the Government Administration Committee.
It shows how completely wrong information can develop a life of its own.
Subject: The Plumbers Gasfitters and Drainlayers Amendment Bill 2013 proposed second reading today.
Holly Walker, Green Party, member of the Government Administration committee.
Dear Holly and all members of Parliament
Thank you for indicating that your party will vote against the proposed Plumbers Gasfitters and Drainlayers Bill 2013 today.
I bring to your attention my response to the "Green Party minority view" as it appears in the report of the Government Administration Committee.
Holly, and members of the house, I trust this email will clear up some of the misunderstandings within the committees report of the Bill.
The Green Party minority view within the Government Administration Committee report, it is stated:
"We note that this funding model is used by a number of construction industry boards including the Chartered Professional Engineers Council, the Engineering Associates Registration Board, and the New Zealand Registered Architects Board".
(1) Chartered Professional Engineers Council, this body has about 3100 members, less than 100 are involved in the building construction industry:
This body does NOT charge a prosecution levy to members to prosecute the general public THIS BODY CANNOT BE USED AS AN EXAMPLE.
(2) The Engineering Associates Registration Board:
This body does NOT charge a prosecution levy to members, to prosecute the general public THIS BODY CANNOT BE USED AS AN EXAMPLE.
(3) The New Zealand Registered Architects Board
This body does NOT charge a prosecution levy to members, to prosecute the general public THIS BODY CANNOT BE USED AS AN EXAMPLE.
The Hon Maurice Williamson continues to tout that what this Bill does is no different to what other tradespeople as part of groups within the Building sector already do, and that is to personally fund the prosecution of un-registered persons, (the general public). If you are a speaker today, please ask the Minister to name ONE group or body that he refers to in support of his statement, he will not be able to, and the reason is that because NONE EXIST.
There is no Trade or Professional body within New Zealand that has the power to levy Employers and Employees, as a term and condition of their right to work,
for the funding to prosecute the general public of New Zealand. This is the proposal of the bill.
Thank you all for your on-going considerations
THE LOCAL MP AND VALIDATION 11.04.13
The local MP Mike Sabin has pointed out that he has little option but to sponsor the commissioners' validation bill. It is a parliamentary convention that local bills are sponsored by the local MP.
However, it is also a parliamentary convention that the local MP does not have to support the bill.
The MP does not draft the bill, has nothing to do with its content, and is therefore a free agent to take his own stance on it. That is, subject to pressure from his party to toe the party line.
Mike Sabin is now well aware that the validation bill proposed by the commissioners is a dog's breakfast that is trying to remedy the original dog's breakfast of illegalities and ultra vires acts.
It is going to be opposed by ratepayers at every step and is going to struggle to find any sympathy with parliamentarians when the full details of Council's incompetence and ongoing deliberate defiance of the law is revealed.
Mike Sabin - and the commissioners - also needs to realise that if the application is rejected by parliament then under standing orders it has to wait another year before a replacement can go ahead. They have only one shot at it, and with legal costs of $150,000 it has to be right.
The commissioners and the sponsor need to consider carefully whether this is the appropriate time for such a bill.
Ratepayers are opposed to it and will fight it tooth and nail.
It is an ad hoc, knee-jerk reaction to try and solve some illegalities, but without a full assessment of ALL the matters that need to be put right.
It is also a dictatorial step taken without any consultation with ratepayers by a body that has not been democratically elected.
It also includes matters that should not be part of any validation bill. It includes by stealth the validation of certain actions that are totally contrary to the law and beyond any powers of any local authority in New Zealand.
As I have said time and time again, ratepayers acknowledge that a validation bill of some sort will be needed once ALL the problems of the KDC - legal and financial - have been ascertained by independent examination, assessed, and remedies agreed upon in collaboration with ratepayers.
Mike Sabin and the commissioners should not rush things. Reaching an accord with ratepayers on the legal issues and the financial issues, rather than using bulldozer tactics might be a far more profitable avenue of approach.
SELECT COMMITTEE WARNING TO COMMISSIONERS 10.04.13
Passage of a validation bill through parliament is not as easy as the KDC's lawyers have intimidated. Parliament is becoming far more selective about entities using parliamentary procedure to cover up their own incompetence and arrogant disregard for compliance with legislation.
Minister Maurice Williamson has tried to rush through parliament a validation bill and amendment bill for the Plumbers; Gasfitters, and Drainlayers Act, but parliament's select committee have been less than cooperative.
The report of the select committee can be viewed here with my highlights.
The bill proposes to validate a disciplinary levy that has been imposed on members by the Plumbers, Gasfitters, and Drainlayers Board outside its statutory powers (ultra vires). Validation would mean that the monies paid over would not be refunded.
Also included in the bill is an amendment to the current Act granting the power to impose such a levy in the future.
Some of the select committee believe that the Board has already been held to account, and that without the power to retain the levy the Board's finances would be severely constrained (other reports say that the Board would be insolvent if it had to refund the monies)
However others on the committee thought that if validation was allowed the Board was not being held accountable for its actions:
We do not agree with making lawful the previous unlawful actions taken by the Board
The report also highlights issues of natural justice. It lists all the steps by opponents of the illegal levy to pursue their legitimate concerns and then comments:
To reach the end of this process and be vindicated, only to have the law changed by Parliament, seems unfair and inappropriate.
The committee warns of the danger of creating new grievances by introducing retroactive legislation and adds:
Since this problem has been known for several years, our preference would have been for a robust consultation with the industry, followed by non-retrospective legislation following the normal timeframes for select committee consideration.
The committee did not support the bill as currently drafted.
John Robertson, the Minister and the Department of Internal Affairs should take note.
This forceful coalition may have teamed up to bulldoze the ratepayers of Kaipara but bulldozing parliament may well be a different matter.
When parliament is fully apprised of the shenanigans that went on in Kaipara and resulted in thirty pages of illegal and ultra vires actions, and when it becomes aware of the total disregard for consultation with the victims of Council's various rorts (the ratepayers), it is not going to be enthusiastic about letting the perpetrators off the hook by validating their transgressions.
Note the comments from the select committee on its preference for "robust consultation" before any validation proceedings. The commissioners totally reneged on Council's undertaking to consult with ratepayers on the options for dealing with illegalities, and, with the Minister's consent, totally ignored the requirements to consult clearly set out in their terms of reference.
A failure to consult when the illegal rates were imposed and a failure to consult all the way to validation is not the sort of approach that is going to go down well with parliament.
The commissioners and the Minister need to change tack very quickly. They are heading for two major battles, one in court and the other in parliament. Their chances are not looking too good in either venue.
Perhaps it is time for local MP Mike Sabin to step in and try and bring some common sense to this conflict. As I said in my previous post, now is the time for the parties to reach an accord on the future. All it needs is an agreement by the commissioners and the Minister that ratepayers' concerns have to be acknowledged and addressed immediately. Then there might be a basis for some agreement on the future which would avoid the two major battles that at present seem inevitable.
[With thanks to Allan Day]
VALIDATION BILL - STANDING ORDERS 30.03.13
The commissioners are busy seeking support from political parties for their disgraceful Validation Bill. But they have many obstacles to overcome before it even gets to parliament. The draft bill is riddled with errors (which they are keeping quiet about) and will have to go through a fundamental revamp.
Parliament's Standing Orders set out the very detailed and precise procedure that have to be followed before a bill enters parliament and then during the parliamentary process.
This Council, in all its different guises, is not too sharp when it comes to compliance with rules and regulations (which the Validation Bill itself proves) and I suspect that it will come a cropper again in spite of $150,000 dollars of legal advice.
One bright suggestion is that the Validation Bill itself is actually included in the Validation Bill so that the inevitable defects in the Bill can then be validated.
The Council has shown that it is almost incapable of doing anything in compliance with the law and Bruce Rogan of the MRRA has suggested that they open a validation "tab" with parliament, very much like a bar tab in a pub. Every time that they make some important decision that requires strict compliance with the law, John Robertson can ring up parliament and "put in on the tab".
"Put it on the tab"
TASMAN DISTRICT COUNCIL VALIDATION BILL 18.03.13
Andrew and Jacqui have provided me with interesting references and comments on the Tasman District Council Validation Bill (here) which is before parliament at the moment.
How the Tasman Bill fares will give us some indication of how the Kaipara Bill will fare in the future.
The Tasman Bill has been in the pipeline for many years and has met with a lot of protest from well-organised locals who obtained a ruling from the Ombudsman to the effect that some of the rates were illegal.
However, the Tasman Bill runs to only 17 pages whereas the Kaipara Bill is 30 pages long.
It is also interesting that the Tasman Bill is going back to 2003 whereas the Kaipara Bill is confining its validation to just six years because of the Limitation Act. I have already criticised that decision on the basis that the 6 year period for bringing proceedings under the Act can be extended if the defect remained hidden.
Council may have misjudged the situation, especially given Peter Winder's advice to ratepayers at the Mangawhai meeting that he suspects that the rates assessment notices have "always" been defective. Given that the rates assessment notice with the rates invoice is the formal legal demand for rates, that brings into question the validity of all Kaipara rates, not just the EcoCare rates, from the time the district was formed.
The Tasman Bill has gone through its first reading at parliament. The debate can be viewed here.
I have included some extracts below which I believe are very relevant to the Kaipara situation. In reading these it is important to remember that the defects in the Kaipara rates are far more substantial than those in the Tasman Bill. The Kaipara rates are unintelligible and, according to commissioner John Robertson, a "dog's breakfast".
Remember also that the incompetence of both the Chief Executive and the Councillors in respect of the Kaipara defective rates was beyond belief, and they proceeded with the illegalities in spite of persistent warnings that the rates were non-compliant with the Rating Act and the consequences of that.
Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman
As I say, I am a reluctant sponsor of retrospective legislation. The main area where we seem to have this in the House is over fisheries legislation. This is not the case here. It is local government. Mistakes do happen from time to time. I know each and every one of the councillors, in good faith, took advice from their staff and of course assumed that they had put in place valid rating claims on the ratepayers.
EUGENIE SAGE (Green)
I would point out that this bill is in sharp contrast to the one we were debating here yesterday, the Environment Canterbury (Temporary Commissioners and Improved Water Management) Amendment Bill. Although we now have National members supporting the validation of the rates-setting process, in Canterbury there is no ability for residents to elect councillors who will provide that representation for the taxation that rates represent and to have elected councillors making decisions about the level of rates and the priorities for spending those rates. So we have Canterbury residents generating $84 million in rates each year, but having no elected councillors to represent them in decisions on how those rates should be spent.
ANDREW WILLIAMS (NZ First)
However, it does raise the issue of local government, and it is quite a pertinent topic at the present time, particularly under this Government, which has such a low regard for local government and treats local government like a third-class citizen, basically.
So certainly it is a necessary thing for a very important area of New Zealand—a provincial, effectively rural area of New Zealand that is very important to this country—to have all its ducks in a line and have everything ticked off; its i’s dotted and its t’s crossed. This is also something that probably will be picked up by other councils through New Zealand. No doubt, if this has occurred with Tasman District Council, there may well be other councils that will learn from this experience and be a little bit more mindful in the future to just make sure that their officers and their people who are drawing up their various documents are 100 percent correct in the manner in which they put them out to the public to meet all the legal requirements. So New Zealand First will be supporting this local bill.
Hon MARYAN STREET (Labour):
I am somewhat surprised at the debate that has been going on over the Tasman District Council (Validation and Recovery of Certain Rates) Bill and the contributions that have been made. I want to pick up one of the points that my colleague the Hon Damien O’Connor made at the outset, which was that he introduces this retrospective legislation in the case of the Tasman District Council with reluctance—with reluctance. Yet there does not seem to be much of a frisson of concern in this House for what is actually happening with this bill.
We will support it. I have for the last 5 years been living and working in Nelson. The Nelson electorate boundary incorporates part of the Tasman District Council. I meet with the Mayor of Tasman District on a regular basis—I will be meeting him on Monday—as I meet with the Mayor of Nelson on a regular basis. So I am familiar with some of the players in this. The areas that Damien O’Connor has talked about, of course—Tata Beach and Ligar Bay—are over there in Golden Bay. As other members have attested, of course it is a beautiful part of the country, but nobody loves it more than the people who live there.
I have a concern about this bill, and I urge the Local Government and Environment Committee to treat this issue very seriously. I have a concern that, in fact, the Tasman District Council is wearing the embarrassment of its mistakes and taking what it sees to be the easy way out. Paul Wylie, who was at the time the chief executive officer but is no longer, was quoted in the Nelson Mail as saying that this is the cheaper of the options. Do not fight it out in the courts with the local residents, because that will get too protracted and too expensive; go to Parliament and use the big hammer to beat the little people, and let us make what we did wrong for a number of years right by the stroke of a pen. Why are more members in this House not concerned about that? I think that is serious.
I will support the bill. The member for West Coast - Tasman has brought this bill forward in good faith to help repair a situation that has been affecting constituents in his electorate, but let this be a lesson to every local council in the country. They cannot simply and easily resort to the big hammer of Parliament to correct their bungles. Sometimes they might simply have to pay for them. I wonder whether there are grounds for the Clerk’s Office to consider whether or not, in fact, Parliament should charge more than it does for local bills to come before Parliament. It does charge a sum, and I wonder whether there should be, at times, some disincentive applied.
I raise these points because of the concern I have about retrospective legislation. It was a concern expressed by the sponsor of the bill, and he is doing this, really, to help his constituents and not to relieve the Tasman District Council of embarrassment, because embarrassed it should be—embarrassed it should be. I could refer to other instances when, in fact, the Tasman District Council has treated constituents in the electorate that I work in with some disdain and in a cavalier way. The movement of the Maitai Lodge is one case in point, but that is not what we are discussing tonight.
So this should be a lesson not only to the Tasman District Council but also, as Andrew Williams said previously, to all local bodies around the country to make sure that they have scrutinised the advice they are given. I understand that councillors act in good faith on advice that they are given, but let this be a lesson to all of them. This bill will get support, but I hope the people of Ligar Bay and Tata Beach bring their concerns to the select committee and get a decent hearing there as well. Thank you.
Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman in reply:
We do not like, any of us, spending ratepayers’ money unnecessarily in the courts. There is still, as I have said, a point of contention and some debate. The Local Government and Environment Committee will no doubt hear about that, and I am sure that the collective wisdom of the members will make a judgment, and perhaps make an adjustment as well, to accommodate what have been legitimate grievances against the council, and the council can put its case to the members. So, again, placing faith in the parliamentary process, I am sure the Tasman District Council will be well rewarded. The bill, however, should not have been necessary, and it is a good lesson for all councils around the country.
Note the comments of Eugenie Sage about the question of representation. Kaipara has no democracy. The Council failed to consult with ratepayers on the illegal rates and now the commissioners are forcing through validation of those mistakes, again without any consultation with the community, and with the community deprived of its democratic rights at the ballot box. Anyone in parliament who is interested in democratic rights and the abuse of power is going to have a field day when the Kaipara Bill comes up.
Maryann Street makes some insightful comments about the bungling of councils and questions whether parliament should automatically be providing a simple and cheap way of councils to rectify their blunders.
That question will resound louder when the Kaipara Bill comes before parliament. The Kaipara Council has a massive charge sheet of incompetence and dishonesty and it is very likely that MPs will be very reluctant to use the rubber stamp to benefit a council that has acted outside the law with impunity, deliberately misled its ratepayers, and effectively destroyed the financial base of its district.
MISLEADING INFORMATION - THE ANSWER 11.03.13
This post relates to clause 9 of the Preamble to the draft validation bill. The full draft validation bill can be seen here.
For convenience clause 9 is set out in full below:
(9) With respect to the Mangawhai EcoCare Wastewater Treatment Scheme –
(a) on 22 February 2006, the Council resolved to adopt the Mangawhai EcoCare Wastewater Treatment Scheme Statement of Proposal for release as contained in the Schedules of the Draft Long-term Council Community Plan 2006-2016; and
(b) on 7 June 2006 the Council resolved to adopt the Long-term Council Community Plan 2006-2016 which provided for the Mangawhai EcoCare Sewerage Scheme; and
(c) on 25 October 2006, the Council considered a report that provided full details of the proposed Mangawhai EcoCare Sewerage Scheme, its capital costs and its funding regime, and set out a scope change that would double the scope of the Scheme; and
(d) on 25 October 2006, the Council resolved that the report and the actions contained therein be adopted:
Note that it is a requirement of section 97 LGA that a local authority consults with the ratepayers via a statement of proposal (SOP) BEFORE agreeing to or signing any contract for a significant undertaking like EcoCare.
I make the following points:
1. The Preamble recites the defects in all of the funding impact statements and rates resolutions in the relevant years. There appears to be no reason or relevance for clause 9 to be present.
2. Note that clause 9 commences with the adoption of an SOP in February 2006. This is not correct. It completely omits the Project Deed and the financial facility documents that were signed on 26 October 2005.
3. Sub clauses 9 (b), (c) and (d) show a sequence that suggests that the KDC adopted the LTCCP (now called an LTP) incorporating the SOP in June 2006 and then adopted the proposals for the EcoCare scheme and its financing in October 2006. The sequence appears to suggest that the KDC complied with its legal obligation to adopt an SOP prior to adopting any EcoCare proposals and finance.
However, that is completely misleading. The SOP that was adopted in June had nothing to do with the EcoCare proposals adopted in October.
The SOP that was issued in February 2006 and adopted in June 2006 related to the original EcoCare Project Deed agreement signed in October 2005, the document that was omitted from the sequence.
That SOP should have been adopted BEFORE the original Project Deed was signed in October 2005.
So what of the SOP for the EcoCare proposals adopted in October 2006?
A new SOP was required because the scope of the scheme and the cost was almost doubled from the original Project Deed. The KDC failed to issue one.
4. One can only presume the original Project Deed of October 2005 was omitted, and the sequence presented as it is in the Preamble, so that those reading it would be led to believe that the KDC had complied with its legal obligations to adopt an SOP (and thereby consult with ratepayers) prior to adopting any contract of financial arrangements.
The reality is that the KDC adopted the SOP for the original Project Deed after the deed was signed. This makes that Project Deed invalid. In respect of the second proposals - the only ones mentioned in these clauses of the Preamble - there was no SOP either before or after. So these proposals were also invalid.
The misrepresentation of the true sequence of events appears to be so blatant that ratepayers have to ask if those responsible for the drafting of the bill were deliberately intending to mislead parliament.
I have put this accusation to the commissioners and have yet to receive a response.
COMMISSIONERS' SLEIGHT OF HAND 08.03.13
Chair of commissioners John Robertson has been adamant that the draft validation bill does not include any validation of the illegal decisions in respect of the EcoCare contract and the EcoCare loans.
He is at pains to point out that those are totally separate matters and the commissioners will await the findings of the OAG inquiry.
Seems pretty clear, and he is a man to be trusted.
Or is he?
Readers are invited to take a look at clause 10 of the Preamble to the bill:
(10) With respect to the Mangawhai EcoCare Sewerage Scheme, -
(a) the Council subsequently borrowed $57,978,000.00 to fund the capital costs of the Scheme; and
(b) it is acknowledged that section 117 of the Local Government Act 2002 applies to those borrowings such that they are protected transactions and remain valid and enforceable:
I have challenged John Robertson on this clause which appears to contradict his oft repeated comments. His response is:
Your insinuation is incorrect. In such a Bill, the Preamble that you have drawn from records the background facts. It is not the operative part of the Bill. In this context, paragraph 10(b) acknowledges the effect of section 117 of the LGA 2002. It does not purport to, and does not, validate anything. There is nothing in the operative provisions (sections 1 to 15) which validates decisions made in 2006.
Interesting. It is true that the statement is included in the Preamble, and there is no attempt to validate the debt in the operative part of the bill.
But, the Preamble is a statement of the relevant background events that explain the context of the rating errors. Clauses 9 an 10 are completely irrelevant to the sequence of events relating to the setting of rates. So why were they included?
And, clause 10(b) is not a simple recital of a relevant event, it is a clear statement of the legal status of the debt. Why would an acknowledgement of the legal status of the debt be included in the Preamble?
What the commissioners have done is pretty crafty. Certainly they are not purporting to validate the debt. There is no need. What they have done is to deftly introduce into the preamble a clear statement that the debt is acknowledged to be valid and enforceable (so no need for validation), so that becomes the underlying basis on which the whole validation process is based.
When we come to challenge the validity of the debt in the future the commissioners will be able to point to an Act of Parliament (which is what the bill will become) which acknowledges absolutely clearly and unequivocally that the EcoCare debt is valid and enforceable.
The bill will effectively confirm the validity of the EcoCare debt rather than validate it.
A BRIDGE TOO FAR 06.03.13
Many of us have suspected the motivation and competence of the commissioners from the start. Others saw their hollow, obsequious performance at the recent meetings with ratepayers and came to the same conclusion.
We all suspect that they are in power for one purpose only and that is to extract the last cent out of the people of Kaipara for the benefit of the banks and to protect at all costs the crumbling local government fantasy of John Key and his government.
Our worst fears have now been confirmed. The draft validation bill, which is designed to validate all the wrongs and illegalities committed by this utterly incompetent Council, has been released and can be viewed here.
For the ratepayers of Kaipara this is a bridge too far.
This is one of the most shameful documents that has ever cast its shadow over the principles of fairness, transparency, legal compliance and the rule of law in New Zealand.
It is a disgrace to the National Party that has promoted the document - sight unseen - and it will be a sad reflection of the state of New Zealand's national integrity if parliament allows this travesty to proceed.
The bill itself is completely unintelligible. The illegal rates and other decisions that the bill seeks to validate were completely unintelligible in the first place, and to try and explain why they are illegal becomes a mission in verbal contortion.
All the average ratepayer will see is 30 pages of mumbo jumbo which means absolutely nothing to them.
That's what makes my blood boil.
The utterly incompetent, arrogant half-wits who were responsible for the illegalities were part of a dynasty of total incompetence and left a trail of illegalities that defy belief and totally ignored virtually every requirement of the law.
But more than that they denied ratepayers their legal right to be consulted on the rates because they were unintelligible, because they were omitted from documents, or simply because the rates were imposed totally outside the law and no consultation was allowed.
But now the apologists for this debacle, like Mike Sabin the local National MP who has sponsored the bill, are now telling the people that this validation procedure gives them the opportunity to voice their concerns.
Get off the grass, Mike. Do you really believe that ratepayers will be able to understand the bill and make appropriate submissions? Do you understand any part of the bill yourself?
Not only were ratepayers denied their rights when the illegalities were being perpetrated, but they are now denied any rights again in the validation process.
It has been said many times that EcoCare is a big Ponzi scheme. The Council was captured by consultants and contractors, and they took ratepayers for a ride. They misled them about the costs of the scheme and went on a reckless spending spree totally outside the law.
The day of judgment has now arrived, and instead of the guilty parties being made to face the music the government has stepped in, is validating all the illegalities and forcing the innocent ratepayers to pay again, and again, and again for the sheer banditry of others.
In a normal Ponzi scheme new investors are sucked in to payout the prior investors. In the Kaipara version the government forces ratepayers to keep paying over and over again.
All so the banks can get their pound of flesh, and the ratepayers are forced to accept their designated role as funders of all the excesses, illegalities and incompetence of local government in New Zealand.
More details on the contents of the bill later.
THE VALIDATION RORT 10.03.13
Read John MacDonald's excellent article on the Validation Rort in the latest edition of the Kaipara Konnection (here).
LOCAL BILL PROCEDURE 06.03.13
The procedure for bills passing through parliament can be seen here. Remember that the Kaipara bill is a local bill.
ILLEGAL RATES - OZ STYLE 02.03.13
The State Government of Western Australia (here) has taken legal action against 22 councils after it found that they have levied illegal rates of more than $27 million on 10,000 properties. The invalid rates will be quashed. Some of the rates will be able to recharged once the correct procedures are followed but nearly half a million dollars will have to be refunded because there is little likelihood of the defects being remedied.
Note how the Australians do it correctly. The rates are deemed to be invalid and repaid. Once they are set correctly they are then collected again, but without penalties.
WHO PAYS FOR VALIDATION? 23.02.13
At the commissioner's Mangawhai meeting with ratepayers someone suggested that the $150,000 cost of validation should be met by those whose negligence caused the problems and therefore the need for validation.
The commissioners responded like stunned mullets. It appears to be beyond their comprehension that anyone but the ratepayers should be responsible for all the incompetence, negligence and illegalities of a local authority.
That is the mindset of anyone who works in local government for any length of time.
There is no doubt that the former Chief Executive and the Councillors who voted in favour of the illegalities were negligent. But it is equally clear that the Office of the Auditor-General, which was the KDC auditor, and that Office's agent, Audit New Zealand, also have blood on their hands.
Below is an article that I wrote some time ago about the failure of the OAG and its agent which remains very relevant and pinpoints the extent of the failure of the OAG and Audit New Zealand to audit the KDC appropriately.
One of the main reasons for the invalid rates that the Salter report identified was the errors in the funding impact statement (FIS). This is the document in the annual plan or LTP that tells ratepayers exactly what rates they are to pay, what categories of properties are to be rated, whether the rate is uniform or differential, and how the liability for the rate is to be determined.
Equally important is the fact that the FIS is the base document for the rates. When rates are set, or legally created, by the rates resolution then it must be in accordance with the FIS. The terms in the two documents must be consistent. If they are not the rates are quite simply invalid.
The Office of the Auditor-General provides a reference check document for Audit NZ to guide auditors examining documents. The guide for the LTP deals with the FIS and sets out all the individual requirements in far more detailed format than I have set out above. It then includes the following warning:
The FIS is one of the prerequisite information requirements for a rate to be lawfully set. If a rate and how liability for the rate is to be calculated has not been set out in the FIS the rate may not be lawful. Therefore Auditors need to ensure that all the information requirements are met with a coherent overall presentation in the FIS.
Kaipara's FIS for EcoCare for all four years is an incomprehensible mess. It is totally confused and conflicting. It uses terms which are not appropriate for rating. It fails to indicate which rate it is referring to and refers to the same rate by different names. It fails to identify the categories of properties to be targeted, and the basis of liability for the rates.
It also conflicts with the terms of the rates resolution.
In short it is an abomination. And yet for four years Audit NZ, even with a check sheet and a stark warning, failed to pick up the fact that the FIS was totally defective.
It needs to be said that in the years from 2006 to 2012 there were thirty full pages of errors in the funding impact statements and the rates resolutions, and not one of them was picked up by Audit New Zealand.
Ratepayers need to ask themselves why they are paying the bill to remedy these errors when the commissioners should be issuing legal proceedings against the OAG and Audit New Zealand for negligence. The matter would be settled out of court in a trice.
LIMITATION ACT AND VALIDATION 19.02.13
The commissioners were adamant that any defects in rates older than six years were irrelevant because of the Limitation Act, which limits legal actions after six years. The validation bill is therefore going back only six years.
Peter Winder acknowledged somewhat surprisingly that the rates assessments across the whole district were all invalid for the past six years and that probably they had always been defective. He seemed to think that this was one of those cute, little idiosyncrasies of the old Council. No doubt, just another minor technical irregularity.
He also let it slip that the draft validation bill, "which is well under way", lists twenty pages of errors for the past six years (in fact thirty pages). All minor technical irregularities, no doubt.
The problem with his comments about the six year limitation period is that it is not correct. That rule does not apply if the act or omission giving rise to the liability has been kept secret from the claimant.
One suspects that Peter Winder knows a lot about the law relating to local bodies, but, sadly for his own credibility, he only discloses what best serves the strategy of the commissioners, the government and the banks. Anything that could favour the ratepayers he leaves hidden away in the bottom drawer.
I bet that after the pasting that he received at the meeting he will be running back to Council's lawyers to reassess the validation process and will take a greater look at the 20 pages of errors that he believes he can validate.
He had better do his job thoroughly because if he proceeds with his ad hoc, misguided attempt to sweep incompetence and dishonesty under the carpet, and minimise the utter incompetence and dishonesty of the Council, he will be met with a barrage of evidence that will make a mockery of his validation proceedings.
And that will be another $150,000 down the tubes.
WHY IS VALIDATION NEEDED? 04.02.13
Council has maintained strongly that all rates are valid until a court issues a formal ruling to the contrary. That is the advice that it says has received from its lawyers, Simpson Grierson.
That is why it is telling ratepayers that the rates are valid and must be paid.
But, if that is the case, why is there any necessity to go through the validation procedure at a cost of hundreds of thousands of dollars? Why validate something that Council says is already valid?
I find the argument hard to follow.
And if the rates need validating then surely that means that they must be invalid to start with. And if they are invalid then it means that ratepayers have no obligation to pay them.
Am I missing something?
It doesn't make sense.
John Robertson needs to step up here and offer and explanation for a further waste of ratepayers' monies.
According to our MP Mike Sabin, parliament, as the highest court in the land, is going to make a ruling on the matter after considering evidence from Council, ratepayers and himself. Given the confusion, it therefore makes sense for all ratepayers to stop paying rates until parliament decides which rates are legal and which are not, and ratepayers know exactly where they stand legally.
MIKE SABIN STICKS OUT HIS NECK 03.02.13
Local MP Mike Sabin has put his hand up and thrown in his lot with the Kaipara commissioners.
The commissioners have ignored their obligations under the Minister's terms of reference and at the same time reneged on Council's commitment to ratepayers, both of which required them to consult with ratepayers on options for the illegal rates. They have stated that consultation with ratepayers does not not "add value to the governance process", and have unilaterally decided to pursue the validation option.
Mike Sabin has ignored this blatant breach of the terms of reference and the repudiation of the agreement with ratepayers - and the affront to good governance - and has surprisingly endorsed the commissioners' approach.
In an article headed MP's Corner in the Dargaville & District News of 23 January 2013 (here) he regurgitates much of the spin about validation that he has taken directly from the commissioners' propaganda releases. For instance he emphasises that the bill is to remedy "largely technical deficiencies". He also emphasises that "services have been provided" which suggests that the rates were justified.
This, of course, is absolute rubbish. The reality is that there was a total abuse of the rating process by the Council and every step of the process was littered with utter incompetence and meaningless provisions that made a mockery of legal compliance. Many of the rates were completely ultra vires, which means that Council had no right in law to levy the rates.
When the true facts are revealed, along with the incompetence and dishonesty of those involved in setting the original rates, the application to validate will be laughed out of parliament. MPs are not fools. When they are made aware of the true situation they will not only reject any validation application but they will be less than pleased with a Council and sponsoring MP that have wasted parliament's time and ratepayers monies by misleading parliament as to the background to the illegalities.
Mike Sabin is an ex policeman and it is disappointing that he did not examine the evidence before throwing his hat into the ring and endorsing the commissioners misleading propaganda.
Ratepayer Pete Grierson is less than impressed with Mike Sabin's comments and his response can be seen here in Ratepayer's Forum.
Mike Sabin can avail himself of this column if he wishes to respond.
PETER BULL AGAIN 25.01.13
Peter Bull. ex councillor. has come out swinging again (Kaipara Lifestyler here) in support of the views of Lyall Preston and the commissioners' decision to proceed with the validation of rates.
He was somewhat miffed by the comments of Legal Eagle about his previous comments (here) but sticks to his guns and slates those who criticise the commissioners and who are withholding rates.
Sadly Peter Bull has no knowledge of what the illegalities and the ultra vires acts of Council really involve and he is happy to just regurgitate the spin of the commissioners that minimise the errors.
He criticises the hysterical outburst from "a few with their own agenda" but chooses to completely ignore the fact that the commissioners reneged on their clear commitment to ratepayers to consult on the options for fixing the illegal rates problem, and in so doing breached the Minister's terms of reference.
He even adds that the proposition to promote a Local Bill to sort out this mess "would seem to be the best option". That may well be his own personal view but ratepayers throughout Kaipara have been denied the legal right to be consulted on that decision. Peter Bull cannot speak on their behalf.
In the same edition of the Lifestyler (here) Bruce Rogan of the MRRA counters the views presented by Peter Bull. He points out the cost of $100,000 to $150,000 for legal advice alone on the validation procedure.
Peter Bull makes it clear in his comments that the Kaipara District has been trashed "by a level of incompetence and dishonesty that is almost beyond comprehension. Ratepayers are justifiably aggrieved at having been shabbily treated."
If that is the case, should those who were responsible for the incompetence and dishonesty and failed to comply with the law in setting the rates be responsible for meeting the costs of rectifying their errors?
Should the Mayor and Councillors, the Chief Executive and the Council's advisers pay the costs of fixing the illegal rates, or should the responsibility be dumped yet again on the innocent and shabbily treated ratepayers.
What do you think, Peter?
SNAKE-OIL SALESMEN AND IGNORANCE 17.12.12
It is quite amazing how many of the those high up in local government do not have the abilities appropriate for the positions they are in.
When integrity, competence and skill are called for, and the essence of the job is to ensure the best outcome for the community being served, it is worrying that many of those who attain positions of responsibility in local government do not have the personal qualities, the skills, the competence and the attitude that are necessary for the job, and instead are self-serving and committed to some agenda that is far removed from the well being of the community.
We have seen instances of this in former Chief Executive Jack McKerchar who had little skill or competence in the nitty-gritty of local government and was more concerned with enriching lawyers, consultants, and contractors that honouring the trust that ratepayers had placed him in.
Neil Tiller was a man of limited abilities who rose to his own level of incompetence. In his early years as a Councillor he showed some good qualities but then appeared to get side-tracked by other agendas and lost all direction and credibility.
John Robertson is a dyed in the wool politician, both in central and local government and brings with him a reputation that is not particularly flattering. In his short time at Kaipara he has added to that reputation.
His style of his press release (here) announcing the probable validation of illegal rates by way of a local bill tells us a lot about the man. He is adept at the art of smoke and mirrors and manages to contort the truth to serve his own ends. He uses every trick that he has acquired to convince ratepayers that the validation procedure (and the failure to enquire into problems of the past) is really for their benefit, when the reality is that Council is robbing them blind.
He does it with the glib, easy manner of a snake-oil salesman.
One of the reasons that Council has got into such a mess is that no one in Council had a basic understanding of the requirements of the LGA and the LGRA or were aware of the appropriate terminology under the legislation for setting rates.
That is why so many rates are now invalid and Council is left to sort out what John Robertson colourfully, and appropriately, calls a “dog’s breakfast of procedural and technical failings”
Given the expense of trying to fix all these problems one would have hoped that the Council would have learned from its mistakes and used the correct terminology, but the press release suggests otherwise.
According to the press release the invalidity of the rates stems from the Council setting rates that "were inconsistent with Financial Impact Statements".
The problem is that there is no such thing as Financial Impact Statement. Try and find it in the LGA or the LGRA and you will try in vain. Look in the various annual and long term plans and you will not find it.
However, there is a Funding Impact Statement which is a vital step in the rating process and should be known to everyone in Council who has anything to do with rates.
Now this failure to give the correct name may seem like a small error but it actually shows an ongoing ignorance of the rating procedure by people who are paid by ratepayers to be experts in the field. There is no excuse for so-called experts to get the name wrong.
Setting rates is a fairly simple process provided that the correct procedures and terminology are used. The exact use of the appropriate language is required otherwise the rates risk being declared invalid. The cost to Council of such an outcome is horrendous, as we are now discovering.
One would expect Jack McKerchar and his staff, who made such a botch-up of the rates, to misname the Funding Impact Statement, but it is disheartening to see that he new Chief Executive used the wrong term in his report to Council in the validation proposal (here - page 143)
No doubt that error was copied into the press release. However, the commissioners, who issued the release, are supposed to be experts in the local government field and one would have thought that one of them would have picked up such a basic and glaring error.
The Kaipara Council has got to the stage where it is virtually incapable of doing anything without calling in lawyers and consultants. It now seems that it can't even issue a press release without having it vetted by the lawyers.
DEAR JOHN 14.12.12
Ratepayers are incensed at the discovery that Council is going to apply to parliament for a private bill to validate all the illegal rates that it has set over the past 6 years.
The startling thing about the new plan is the total failure of John Robertson's team to consult with ratepayers, yet again. He and his henchmen have again run roughshod over the rights of ratepayers.
Almost a year ago the when Jonathan Salter confirmed ratepayers allegations on the extent of incompetence and illegality in setting the rates, the Chief Executive Steve Ruru promised that the problems would be resolved hand in hand with the community. Ratepayers focus groups were promised an in-depth consultation. Absolutely nothing was done.
We are still waiting, Steve.
The review authority under Greg Gent made the following recommendation in its report:
3. The Minister of Local Government, in specifying the terms and conditions of the commissioners’ appointment, have specific regard to mechanisms to ensure the community has input into decisions of the commissioners.
That is pretty clear language. Even more, the commissioners were specifically instructed by the Minister as part of their terms of reference to undertake the following
- work with the Kaipara community and ratepayers and the Department of Internal Affairs to identify options for dealing with invalidly set rates and other legal compliance matters;
- begin initial engagement with the community and iwi to rebuild confidence and trust in the Council. This may include the establishment of community and iwi reference groups.
All ignored. Ratepayers have never been consulted on the options for the invalid rates, or, for that matter, on any other problem.
There has been absolutely no engagement with the community. Those who have met with the commissioners report an obdurate indifference to the concerns of ratepayers, and an obsession with "the debt".
So how does Council look under John Robertson's regime?.
In breach of its promises? Yes. (So what, it has never kept a promise.)
In breach of its terms of reference? Yes. (Who cares?)
Ignoring the recommendations of the review team's report (What review team? What report?)
Appalling public relations? Yes. (But ten out of ten for consistency.)
Guaranteed to get the backs of ratepayers up? Yes.
In a few short months John Robertson has quickly shown that his appointment as chair of the commissioners was a huge mistake.
Greg Gent and his review team recognised the need for openness and honesty when they wrote in their report:
38. Restoring this relationship between the Council and the community is fundamental to addressing the problems the Council is facing. It is arguable that no solutions to any of the Council’s problems, regardless of how technically sound they are, will be tenable unless there is buy in from the community.
John Robertson would have done well to heed those words. But he is not interested in any "buy in" from ratepayers. He believes he can achieve his objectives with bullshit and bullying.
As the review team was so patently aware, ratepayers were willing to embrace the commissioners provided they were open, communicated with the people, and showed a willingness to respond to the concerns of the district.
John Robertson has done none of those things. He has behaved as a puppet of central government and a toady of the banks, with a steely and focused determination to dump the illegal debt on Kaipara ratepayers and to ignore the liability of others.
Even the most moderate of ratepayers have had a gutful of his disregard for the real problems, the sickening, misleading propaganda that emerges from his office, and his zealous defence of the banks' precarious loans, regardless of the cost to the communities and individuals in our district.
John Robertson was appointed as Captain of the Titanic to steer us on a new course, away from danger. The reality is that he has become the iceberg, Like McKerchar, Tiller, and Geange before him, his actions are going to lead to the destruction of Kaipara as a viable district.
He is not the man for the job. The Minister needs to recognise that before more damage is done and send him on a very, very long Christmas holiday.
RATEPAYERS COMMENTS (HERE)
PRESS RELEASE (HERE)
Letter to the Editor of the Kaipara Lifestyler (here)
I was very pleased to read that local MP Mike Sabin is prepared to sponsor a Bill through Parliament to resolve the invalid rates related to the Mangawhai area.
This initiative shows true leadership from Mr Sabin and has a number of advantages for us in Kaipara.
Firstly, and very importantly, to a district struggling for cash the solution will sit with and be paid for by Central Government not the embattled residents of Kaipara, and secondly the draft legislation will follow a full democratic process including select committee where all parties will have an opportunity to make their views known and therefore informed of the final decision.
We now await the finding of the office of the Auditor General around their investigation into the Mangawhai waste water debacle.
Both of these issues need to be resolved before the District can move on and build for tomorrow.
Comment from Legal Eagle
1. Review team recommendations and terms of reference ignored
Greg Gent's review team made the following comments in its report:
3. The Minister of Local Government, in specifying the terms and conditions of the commissioners’ appointment, have specific regard to mechanisms to ensure the community has input into decisions of the commissioners
38. Restoring this relationship between the Council and the community is fundamental to addressing the problems the Council is facing. It is arguable that no solutions to any of the Council’s problems, regardless of how technically sound they are, will be tenable unless there is buy in from the community.
The Minister followed that advice and the terms of reference for the commissioners include:
- work with the Kaipara community and ratepayers and the Department of Internal Affairs to identify options for dealing with invalidly set rates and other legal compliance matters;
In spite of the review teams recommendations and the clear mandate to the commissioners in the terms of reference the commissioners have not consulted with ratepayers and the community in any way on this matter.
How does that sit with Greg Gent?
"True Leadership from Mike Sabin"
Greg Gent sounds like a National Paty cheer-leader talking up Mike Sabin when the reality is that Mike Sabin was obliged to sponsor the bill and toe the party line. Mike Sabin has shown absolutely no leadership in this matter but simply resonated the views of the government and the commissioners. He has shown little concern for the effect of the draconian rates on the individuals and communities in the district. .
"For a district struggling for cash"
Such concern for spending the pennies was clearly not evident over the past 6 years or so, or in obtaining legal advice costing $36,000 to counter the claims of ratepayers.
It is interesting that the Council has illegally and recklessly squandered a King's ransom of ratepayers' money over many years, and yet, when it comes to taking action to make it accountable for that profligacy, the apologists for Council suggest that the cost of pursuing accountability is excessive and is to be avoided.
"The draft legislation will follow a full democratic process including select committee where all parties will have an opportunity to make their views known and therefore informed of the final decision."
Nothing but spin and propaganda taken directly from the commissioners. The reality is that ratepayers will have little opportunity for any input and will have to travel to Wellington if they want to have their say. Once the bill is introduced the process will be like a steam-roller and there will no consideration for the concerns of the ratepayers.
What happened to the "full democratic process" and consultation with ratepayers BEFORE making a decision on the remedy for the illegality? Consulting with the community, regarded as essential by the review team and the Minister, would not cost but would perhaps show how unpopular the validation decision is.
Letter to Mike Sabin MP
John & Margaret Henderson 21.12.12
Dear Mr Sabin
Your decision to support and promote the proposed “Retrospective” whitewashing of the ultra vires, illegal and incompetent actions of the KDC councillors and staff is ‘gob-smacking’; especially as you were once a policeman and should have a better appreciation for the rule of law. Your actions are akin to ‘nobbling the jury’ to obtain a not guilty verdict for a habitual criminal.
If you have any thought about your being returned as our MP in the next election you will be sorely disappointed as the electorate will display its disgust in your gutless action to support the Minister of Local Government in his vain attempts to crush the ratepayers of the Kaipara while ensuring the guilty parties escape and his banking cronies get payouts they do not deserve. They don’t deserve the payouts because they did not do sufficient due diligence on the borrower (ie KDC) to identify if they, the council, had the authority to enter into the debts and the authority to raise rates to pay those debts.
To make retrospective legislation at all, is considered to be an absolute last resort of any government and should be resisted and examined in the ultimate detail. To attempt to make it to cover clear and even partially admitted errors that are far beyond, ‘minor technical issues’ is abhorrent to a democracy. This proposed retrospective action is even more inappropriate at this time as the Commissioners appointed by the Minister have done an appalling job in failing to consult with the ratepayers, failing to expose the facts, failing to pursue the parties who got the district into trouble.
It seems they and you just think the easy way out is to do a whitewash and have two wrongs make a right. Well, it may surprise you, they don’t; and you and they will rue the day as this bullying and totally undemocratic action will be the trigger that brings the whole district to dedicate itself to opposing you.
John and Margaret Henderson
Mangawhai Heads Residents
Below is the Press Release from Council advising that it has decided to pursue a local bill to validate the illegal rates.
The press release is full of the normal smoke and mirrors and Legal Eagle has introduced a reality check with his comments in blue
18 December 2012
Council to pursue Local Bill
Kaipara District Council will seek a parliamentary solution to resolving historical rating errors.
At today’s Council meeting Commissioners resolved to pursue a Local Bill.
Kaipara District Council made a series of procedural or technical errors when setting rates between 2006 and 2012.
This is not correct. The errors were not procedural or technical. The LGRA sets out a rating process that dictates the procedure for setting rates and the appropriate terminology. The Council repeatedly ignored both in spite of warnings that this would render the rates invalid. In some instances the Council completely failed to mention certain of the rates in the rating documents. The errors were substantial and reckless. Council did not care whether it complied with the Act or not because it thought it was beyond the law..
Some of the rates were completely ultra vires. This means that the Council had no power to set the rates. Thus, the EcoCare rates for the first two years were invalid because the EcoCare service was not available to ratepayers at that time. Similarly the "unit of demand " levies on separate units were completely ultra vires because Council had completely ignored the requirements of the LGA and the LGRA.
The services the rates paid for were still supplied.
Some were, but not the first two years of EcoCare or the unit of demand levies.
The rating revenue involved adds up to more than $17 million.
While a Local Bill would validate all the other incorrect historic rates by fixing largely technical deficiencies, the Bill would include specific actions to address issues around the Mangawhai targeted rate.
Not technical deficiencies, rather substantive failures. Which specific issues around the Mangawhai targeted rates? Smokescreen.
A Local Bill would not hinder possible legal action by the Council over matters around the extension of the Mangawhai Community Wastewater Scheme. At Council’s request, the Auditor-General’s office is investigating the Scheme with a report due out next year. Commissioners have already said they will consider the report with urgency and have not discounted legal action against those involved.
The Auditor-General's inquiry was triggered by submissions made by Legal Eagle to the Council, the Minister and the Auditor General to the effect that the decision to extend the scope of the EcoCare scheme and increase the debt was ultra vires. Following an opinion from its solicitors and pressure from the Auditor-General the Council was pressured into requesting the Auditor-General to hold an inquiry.
The party perceived as being most responsible for the Kaipara debacle (outside the main perpetrators) is the Auditor -General, because of that Office's failure to audit the Council's affairs adequately and to act as watchdog to protect the interests of ratepayers. Even the Minister's review team was of that opinion.
Does anyone really believe that the Auditor-General's report is going to point a finger at the Auditor-General? That is why ratepayers are demanding fully independent reviews.
"Legal action against those involved." Who are you kidding? You also said that you would engage with the community....
Commissioners discussed other options to address historical rates irregularities. However, they favoured the Local Bill option because it would highlight past mistakes and open past decisions up to full public scrutiny.
Should a Bill proceed to Select Committee stage, Commissioners hoped public hearings would be held in Kaipara District.
Commissioners favoured the local bill option, but what about the views of ratepayers with whom the Minister said they must consult?
If the commissioners want to highlight past mistakes why have they done everything to bury them? Why not put all the information before the public?
This comment exaggerates the openness of the validation process. If Council wanted to "open up past decisions to public scrutiny" then it should listen to ratepayers and hold independent inquiries into all those matters now, and reveal all the legal opinions that it refuses to release.
For further information contact: Barbara Ware on 09 439 3123. For further information, please also refer to the news release dated 11 December 2012 “Commissioners may seek parliamentary solution to rates”.
How does a Local Bill work?
• The Council prepares the Bill;
• The Council advertises its intention to promote the Bill and makes it available for public inspection in its district;
• After introduction, normal Parliamentary process applies. This means the Bill will be referred to a Select Committee for consideration and public submissions heard on the Bill;
• Separate time is set aside in the Parliamentary timetable for local Bills - from introduction it would normally take six to eight months for a local Bill to be passed.
If you are lucky. This is so complex and will be fought all the way. It will be a very long and rocky road and the chances of success are minimal.