Will the CCOs be able to operate in secret or not?

There seems to be some confusion around as to whether the changes to the Auckland Law Reform Bill actually opens up the operations of the council controlled organisations (such as Auckland Transport) to public scrutiny or not. More specifically, will they have to hold their meetings in public? Will they have to publish their agendas and minutes? Will it be possible to actually know what these giant organisations are doing?

My post yesterday suggested that I remained unconvinced, although the NZ Herald seems to believe that “everything’s hunky-dory” I think it’s probably necessary to dig a bit deeper and find out what the real answer is. It is rather complex, but I will try to spell things out as clearly as I can.

As I noted yesterday, much of the “secretive nature” of the CCOs arose because the bill, as originally drafted, made Auckland Transport (and the other CCOs I think) exempt from section 74 of the Local Government Act 2002 (LGA). This is what Section 74 of the Local Government Act says:Now if we turn to the Local Government Official Information and Meetings Act 1987, that piece of legislation effectively outlines the process by which you can request information from CCOs in a similar manner as how you can request information from government agencies under the Official Information Act 1982. In other words, if the CCOs had remained exempt from section 74 of the LGA, then as far as I can see, we wouldn’t have even been able to make the equivalent of OIA requests from Auckland Transport (and perhaps the other CCOs).

It’s important to note that section 74 of the LGA only talks about Parts 1 to 6 of the 1987 Act, which are the parts that relate to the information requests, not Part 7 which relates to the publication of agendas, minutes and allowing the public to attend meetings etc. etc. It would appear as though under the LGA there is currently no requirement for CCOs to do anything much publicly, aside from being subject to information requests, which somewhat outrageously the Super City Bill in its original state would have removed.

Looking at the changes to the legislation the select committee has made, CCOs are now subject to section 74 of the LGA (meaning you can OIA request them), which is absolutely essential to ensure that they are at least somewhat accountable. Furthermore, in terms of Part 7 of the Local Government Official Information and Meetings Act 1987 (the bit that actually relates to allowing the public to attend meetings etc. etc.) we see the following added to the Bill by the select committee:

The important one here is (e), which relates to ensuring that substantive CCOs (meaning Auckland Transport, Watercare and the Waterfront Development Agency I think) are subject to Part 7 of the Local Government Official Information and Meetings Act 1987 – which means that the meetings have to be open to the public, that agendas and minutes have to be published, and so forth.

So that is good, although I must say I find it rather strange that this complex arrangement is achieved through the Council adopting a policy that requires the CCOs to operate in a publicly accessible manner. I mean why not just include that in the legislation? The worry for me is that in the time it takes for the council to sort out this policy and implement it, Auckland Transport and the other big CCOs will remain secretive. This might not be the biggest problem in the world, but it would be good to know why that can’t just be in the legislation.

Perhaps what is interesting to learn from looking a bit deeper into this issue is that it would appear as though existing CCOs aren’t subject to Part 7 of the 1987 Meetings Act (I think I’ll just call it that for now, the full name is rather long). This probably explains a bit why Auckland Transport wasn’t initially made less secretive, although it certainly doesn’t explain why section 74 of the LGA was not to apply to Auckland Transport. I guess there was an argument of “if current CCOs don’t have to comply with Part 7 of the 1987 Meetings Act, then why should Auckland Transport and the other big CCOs?” Well I think the answer to that is fairly obvious, in that Auckland Transport in particular will do a lot of things that are currently done by councils, so therefore it should be more open to scrutiny than, for example, ARTA is at the moment.

While all this appears to satisfy my concerns about whether Auckland Transport (and the other big CCOs) will be able to operate in secret as long as the Council sets that policy, there’s still the rather odd issue of this:

The strange thing is that my understanding of section 74 of the LGA, is that it doesn’t mention Part 7 of the 1987 Meetings Act. So this seems to be rather unnecessary, although perhaps is simply included to try to reinforce that it is not this legislation which ensures Auckland Transport will operate in a non-secretive way, but only the Auckland Council’s policy, as set out in 75AA(2)(e) that ensures we know what Auckland Transport is up to.

It has certainly confused me to some extent, but overall it does seem that things are OK and Auckland Transport will not be able to operate in secret. While this is reliant upon the Auckland Council making a policy that requires them to do so, I can’t imagine Auckland Council not making such a policy. However, I must say that I’m still pretty shocked that the Bill, as introduced, would have shielded Auckland Transport from information requests. That’s pretty damn cheeky if you ask me.

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