The Local Government (Auckland Law Reform) Bill

Auckland’s Super City is being established through three different pieces of legislation. Two of those – the Local Government (Tamaki Makaurau Reorganisation) Act and the Local Government (Auckland Council) Act – have already been passed into law. The third piece of legislation, the Local Government (Auckland Law Reform) Bill, is currently open for submissions, until February 12th. Making a submission is actually really easy, as you can now do it online. I’m not sure whether I will end up making a submission, but I do certainly have a few issues with the legislation as it currently stands – particularly in terms of the details about how it establishes the “Auckland Transport Agency”, which will be the successor to ARTA and the transport departments of the various current councils.

Part 4 of the Bill creates the Auckland Transport Agency as the “Council Controlled Organisation” (CCO) that will manage quite a lot of the transport system within the Auckland Region, once the Super City is established in October this year. Perhaps the key statement there is “quite a lot” of the transport system, rather than “all of it”. As I explained in a previous post, there’s actually quite a lot that the Auckland Transport Agency will NOT manage. This is outlined in section 37 of the Bill:

Perhaps what is most critical here is that the transport system under the management of the Auckland Transport Agency will not include railways or state highways. It’s not necessarily surprising that the government has refused to give up sole control of the railways and state highways, but I think it undermines attempts to create a truly “integrated” transportation system. I would have perhaps preferred some sort of “joint venture” agency to manage everything the Auckland Transport Agency will, plus the state highways and railways (jointly with NZTA & KiwiRail). Such an agency would have allowed for true integration, but instead we’re still going to have a variety of different agencies and entities managing transport – unfortunately losing much of the benefits that the Super City could bring.

I suppose that the obvious result of creating the Auckland Transport Agency is that they are doing this job rather than the Council. To ensure that Council can’t get involved in transport matters, we have section 43:

Now obviously we wouldn’t want the Auckland Council to establish their own “rival” transport agency, so this section is necessary. However, it just hammers home how this Act takes transport out of control of the Auckland Council and into the control of an agency that is quite separate from the Council. At first I thought this was a good idea, but now I’m worried that this might just be a way for the government to get around the current difference of opinion between itself and many local politicians on where the focus for transport spending should be.

The Green Party appears particularly suspicious about what this decision to put transport into a “CCO”, rather than leaving it in the hands of the Auckland Council means, with Sue Kedgley making the following comments in her original speech on the Auckland Law Reform Bill:

If members look at the Auckland transport one [agency], members will see that it will run every aspect of Auckland’s transport. It will run the electrification of the Auckland rail network and integrated ticketing. The only aspect left for the Auckland Council to manage is off-street parking facilities owned by the council. The Auckland Transport Agency will have the powers and functions of a local authority. It is to act as if it were a regional council. It can make by-laws, it is a requiring authority, it can seize property, and with all of these functions, it will be run by unelected and unaccountable directors.

One of the most critical aspects of this bill is a clause that states that councillors are prohibited from exercising any powers or functions that the Minister has conferred on to the council-controlled organisations. So councillors will be prohibited under this bill from exercising any of powers or functions that are being undertaken by, for example, the Auckland transport council-controlled organisation.

We have these mayors running around Auckland saying they want to be elected as mayor to fix Auckland’s transport problems. The only trouble is they will have virtually no powers to do anything to influence Auckland transport. All they will be able to do is bang the table in frustration because they will not have the powers to make the changes they want.

If they want to get involved in the debate on electrification of rail or on integrated ticketing, which are some of the most important issues facing Auckland, all they will be able to do is sit around banging the table in frustration and impotence because the Crown-owned companies will have all of the authority to implement policy in every aspect of water, of transport, and other issues.

I guess it’s worthwhile to point out that the rail electrification project isn’t actually something that would be under the auspices of the Auckland Transport Agency, but rather KiwiRail/Ontrack – as it’s a government project. However, much of the rest of what Sue Kedgley says is very true – that there is going to be such a divide between the Auckland Council and the Auckland Transport Agency that even though future members of the Council, including the quite powerful mayor, are likely to want to “do something about transport” as a matter of urgency, it seems fairly likely that they will struggle to do so.

The main way in which the Auckland Council will be able to affect what the Auckland Transport Agency does is through the fact that the Council is the sole shareholder of the Transport Agency, and has the ability to appoint all its voting directors. The board of the Auckland Transport Agency is supposed to make all the important decisions the Agency will have to make, as outlined in section 45 of the Act: Schedule 2 of the Act outlines the process for the appointment of the directors, and does indeed state that the Auckland Council will appoint these directors. However, there’s an interesting part of an earlier part of the legislation which details how the initial directors of the Auckland Transport Agency will be appointed. The very lengthy Clause 24 makes changes to the Local Government (Tamaki Makaurau Reorganisation) Act 2009 includes one part that gives the Minister of Transport and the Minister for Local Government the opportunity to appoint the initial directors of the Auckland Transport Agency:I must say it is difficult to work out why this is necessary, other than to ensure the Auckland Transport Agency reflects the government’s, rather than Auckland Council’s, wishes for at least the first three years of its existence. I suppose that we do need a board to “hit the ground running”, but surely the Auckland Council should have the ability to appoint all the directors within 6 months of taking office?

Another aspects of this bill that I find concerning is the fact that it completely repeals the 2004 Local Government (Auckland) Amendment Act, known as the LGAAA. While a large part of this Act was dedicated to the establishment of ARTA – so therefore kind of has to be repealed, the LGAAA also is very important in providing some legal “teeth” to the 1999 Auckland Regional Growth Strategy, by requiring that council plans be consistent with this strategy. It seems as though repealing those aspects of the LGAAA have been simply designed to undermine the Growth Strategy, and in particular the metropolitan urban limits that it created.

Perhaps the plan is for the Regional Growth Strategy to be effectively replaced by what Part 6 of the Auckland Law Reform Bill focuses on – the spatial plan for Auckland. This is definitely one part of the legislation that I wholeheartedly support, although it is definitely necessary that we get this plan right, as it seems as though it will be fairly powerful in guiding Auckland’s future development. Here’s what the legislation requires of this “Spatial Plan”:

This is certainly the kind of plan Auckland needs, and it will be interesting to see how it is developed over the next few years.

In terms of what others are saying about this legislation, ARC Councillor Joel Cayford has made a couple of excellent posts on it here and here. He points out a few of the more difficult to find consequences of the legislation. The Green Party have also put together a guide for submitting on the bill, which is quite useful once again in terms of digging into some of the potentially hard to understand bits of it.

Overall, I am really starting to think that this whole “Auckland Transport Agency” concept is potentially a big mistake. Originally I had supported it, because I figured it would largely be an “empowered ARTA”, and ARTA seems to have done a reasonable job over the past 5 years. Yet as time has gone on, and I have seen more of the details about the Auckland Transport Agency, it really seems as though we’d probably be better off with transport simply being a part of the Auckland Council. Transport is a big political issue in Auckland, with local politicians just about always putting transport matters at the top of their priority lists. Given the level of discontent with Auckland’s current transport system, it seems very silly to effectively “lock away” transport into an agency that is really only very indirectly accountable to the people of Auckland for the decisions it makes.

So while you submit ways in which the Auckland Transport Agency could be improved (which I think it most definitely can be), I do think it might also be worthwhile mentioning that, ideally, transport shouldn’t be locked away from the Auckland Council.

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