July 02, 2021

EXCLUSIVE: Appointment Of Tauranga Commissioners Likely To Be Unlawful

The Tauranga Ratepayers' Alliance is releasing a legal opinion from one of the country’s top law firms, obtained under the Official Information Act, which suggests that Local Government Minister Nanaia Mahuta acted unlawfully when she sacked the City Council and appointed Commissioners.

The appointment in February cancelled elections scheduled in March for a new Mayor and Councillors, removing the right of Tauranga residents to choose their own leaders. An independent review of the Minister's decision by law firm Russell McVeagh, released under the Official Information Act to the Tauranga Ratepayers’ Alliance, "identified several issues with the Minister's decision from a public law perspective" including:

• that the Minister failed to adequately consider lesser alternatives, such as the appointment of a Crown Manager, and as such "does not meet the statutory requirement in the [Local Government Act 2002]." Should the issue proceed to Court, Russell McVeagh has suggested: "a court would likely expect a robust assessment of lesser interventions to have been first undertaken;

• the information provided by the Department of Internal Affairs to the Minister was arguably "incorrect, misleading or insufficient for the purpose of making the decision that a Commission should be appointed;" and 

• strong criticism of the recommendation by Peter Winder, chair of the Review and Observer Team, that a Commission be appointed because he did not inform the Council nor allow Councillors the opportunity to respond to it, as required under his terms of reference. Russell McVeagh found this breach "could potentially impact on the integrity and validity of the Minister's Decision" and could result in Winder's recommendation being "set aside by a court on natural justice grounds."

The advice is being released by the Tauranga Ratepayers’ Alliance and is available at www.taurangaratepayers.nz/legal_advice.

In reaction to the release of the legal analysis Tauranga Ratepayers' Alliance spokeswoman Dawn Kiddie says, "this analysis provides a chilling insight into the casual way the Minister stripped our community of democracy. The release of the advice will be embarrassing for Wellington. It shows how vulnerable the Commissioners are to legal challenge. But the way to fix this is easy: Tauranga should be returned to democracy with fresh elections held."