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This week on Taxpayer Talk, Taxpayers' Union Executive Director, Jordan Williams, sits down with lawyer Stephen Franks to provide an update on the Three Waters legal challenge. Stephen is a founding director of the commercial and public law firm Franks Ogilvie, a former member of Parliament and spokesperson for the Water Users' Group.
Franks Ogilvie has been leading the legal challenge against Three Waters that, among other things, aimed to force the Minister of Local Government, Nanaia Mahuta, to release her legal advice that co-governance of Three Waters infrastructure was required under the Treaty of Waitangi. Unfortunately, this challenge was unsuccessful and was appealed to the Court of Appeal where the challenge was again dismissed. We have decided to drop the case in order to focus our resources and efforts on developing a repeal and replacement bill for Three Waters.
The Local Water Infrastructure Bill that we have been developing addresses the infrastructure issues that were used as the justification for Three Waters but without the co-governance, seizure of local assets and other numerous problems in the Three Waters legislation. You can read about our Local Water Infrastructure Bill here.
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If you have any comments, questions or suggestions, feel free to email [email protected]
Grant Robertson’s claim that there is a ‘hole’ in the funding as of a result of scraping Three Waters is nonsense on stilts.
Taxpayers’ Union Executive Director, Jordan Williams, says:
“Grant Robertson is trying to frame opponents of Three Waters - including the National Party - as not having an alternative. Nonsense. There is an off the shelf solution that has the broad backing of the countries largest two councils, Communities4Local Democracy, the Taxpayers’ Union, and ACT. The National Party’s policy is nearly identical.
“Unlike Three Waters, the Local Water Infrastructure Bill, doesn’t just splash cash and bureaucracy. No government funding is required within the budget forecast period, and any that subsequently is needed requires disciplined analysis showing investment is justified before amounts are committed - similar to the tests for investment Transpower is subject to.
“The only hole here seems to be Grant Robertson’s knowledge about the alternative to Labour expensive, bureaucratic, undemocratic Three Waters.”
Cost for water utilities and for communities depends on how much investment is needed and how much has been delayed. That differs from council to council.
But the government has promoted unrealistic estimates of costs and promoted the idea that somehow essential upgrades and replacements can only be afforded if everything is centralised and overseas savers’ funds can be accessed to pay for our water services. Castalia says that the investment plans for water infrastructure of most of the sample of councils they have audited appear prudent and readily fundable. They found that the consultants engaged by DIA wildly overstated investment needs.
As Castalia explains it “the government has assumed that one factor, scale, will deliver fantastical cost savings. This is plain wrong and the international evidence confirms this. Because the government’s consultants could claim such big cost savings from scale, they were able to include enormous estimates of needed capital expenditure”.
After two years debate on water reform and countless promises of more efficiency and transparency, today’s news that the Government is refusing to disclose the salaries of the recently appointed entity CEOs is a slap in the face of the hundreds of thousands of New Zealand ratepayers who objected to the reforms. The NZ Herald has confirmed, however, “that the salaries sit within a range of $602,500 to $815,500 per year, which suggests a very tidy pay rise for at least three of the four executives in question.
Responding to the report, Taxpayers’ Union Campaigns Manager, Callum Purves, said:
“The Government’s Three Waters reforms are failing its own litmus test – reducing costs and delivering services more efficiently. There is no efficiency or transparency in Government officials trying to keep secret what they are spending on CEOs for organizations that don’t yet exist.
“This is precisely what the Taxpayers' Union warned about. By taking control away from local communities, faceless bureaucrats in their ivory tower head offices tend to snub transparency and accountability. This example is case in point.”
Commenting on the news that the new Three Waters reform plan has already blown out costs by around $1 billion, Taxpayers’ Union Campaigns Manager, Callum Purves, said:
“Three Waters is adding layer upon layer of pointless bureaucracy. Inefficiency is baked into the design of these reforms, so is it really any wonder that they are already behind schedule and over budget?
“It has been clear from the get-go that Three Waters offered tremendously poor value for taxpayers’ money. More bureaucracy, no job losses, yet lower costs was a sum that never added up. McAnulty’s attempt to pull the wool over voters’ eyes with the changes introduced to Parliament earlier this month simply make this power grab even more expensive, and yet the Government is still failing to meet even these revised targets.
“The public has made it clear that they do not support seizing community water assets, whether they’re being handed to four distant entities or ten.”
The New Zealand Taxpayers’ Union is pleased to hear that the Minister of Local Government, Kieran McAnulty, has invited concerned mayors to the Beehive to discuss the Three Waters reforms but believe he should meet with the country’s largest taxpayer and ratepayer organization too.
The Taxpayers’ Union Executive Director, Jordan Williams, has written to the Minister requesting a meeting to share the views of taxpayers and ratepayers on the problems with the Government’s Three Waters reforms and to set out alternatives that maintain local control and democratic accountability while keeping costs to ratepayers down.
Taxpayers’ Union Campaigns Manager, Callum Purves, said:
“We met with more than 10,000 people on our Stop Three Waters roadshow last year including elected local representatives and those directly involved with the delivery of water services.
“Our concerns that these reforms will lead to higher water costs, unnecessary bureaucracy, no local control and an undermining of democratic accountability were echoed those we met.
“The entire process for these reforms has been flawed and lacked proper engagement with those directly impacted, including when more than 60,000 of our supporters made a submission against the reforms but the Select Committee refused to hear them.
“We strongly urge the new Minister to engage with concerned mayors in good faith and meet with us so that we can put forward the concerns of all those who were not given the opportunity to present to the Select Committee.”
Taxpayers’ Union Welcomes National’s Three Waters Alternative
National’s ‘Local Water Done Well’ alternative to Three Waters is bang on what the Taxpayers’ Union and local councils have been calling for. It meets the Taxpayers’ Union’s red lines of respecting property rights, retaining community control, ensuring local accountability, giving councils the ability to opt into shared models of their choosing, and the efficient delivery of water services.
“This policy is almost identical to the model developed by Communities 4 Local Democracy, which the Taxpayers’ Union has been promoting,” said Taxpayers’ Union Executive Director, Jordan Williams.
“This is a serious challenge to Chris Hipkins who has said he wants to ‘refocus’ Three Waters. Here is the solution.”
“Three Waters will mean higher waters costs, more bureaucracy, no local control, and less democracy. Poll after poll has shown that the reforms face overwhelming opposition from Kiwis.”
“But everyone accepts that doing nothing is not an option. Now the Government can not claim ‘there is no alternative’.”
“This alternative to Three Waters is now a consensus among the Taxpayers’ Union, 31 provincial councils, the Mayors of our two largest cities, and the opposition National Party. There is just one more person to convince: Mr Hipkins.”
It's been a tough few weeks. Like so many, our team in Wellington have family and friends who have lost their homes and livelihoods following Cyclone Gabrielle and our thoughts continue to be with all of those who have been affected.
The clean up and restoration works following the devastation of the cyclone will cost a lot of money, but the knee-jerk reaction to hike taxes is not the solution. People are already struggling with the cost of living and a new tax could not come at a worse time.
Worryingly, this week both Chris Hipkins and Grant Robertson refused to rule out a ‘cyclone levy’ or other new taxes.
Borrowing more – an option the National Party signalled it was open to – is not the solution either. It will simply serve to drive up inflation further and force the Reserve Bank to whack up the Official Cash Rate even higher than the 4.75% it was set at yesterday.
The answer is actually quite simple but it may be a difficult pill for politicians to swallow: The Government needs to get a grip on its spending.
Unnecessary projects such as Auckland's proposed tramway that Treasury officials estimate could cost up to $29 billion – equivalent to $14,842 for every New Zealand household – should be scrapped. The over $1 billion annual spend on consultants should be slashed, and the explosion in the number of public service mangers could easily be reduced without impacting on frontline public services.
Chris Hipkins keeps talking of a shift towards 'bread and butter politics', but refocussing policies isn't enough, the Government needs to refocus its spending too.
With much fanfare, the Prime Minister announced funding for new truancy officers to tackle the attendance crisis in our schools. While the funding may be welcome, we were curious as to why it had taken the Government so long to take serious action to tackle the problem.
It turns out Chris Hipkins did take action on truancy when he was Minister of Education. A Taxpayers' Union investigation this week revealed that the Ministry allocated $1 million last year for an 'awareness' campaign about the truancy crisis.
Unclear about what this actually meant, we asked the Ministry to explain how the campaign addressed the problem of declining attendance and how it improved it. Shockingly, the Ministry said it “was not expected to have a direct, quantifiable, impact on attendance rates itself.”
In short, instead of working to fix the problem (kids not going to school), taxpayers have been made to foot the $1 million bill for an advertising campaign to make them aware about something the media had already done a very good job of covering. You couldn't make it up!
This week the High Court issued its decision on the Three Waters case brought by Timaru, Waimakariri and Whangarei District Councils. They had asked the Court to make declarations on the rights and interests that property ownership entails. You will recall the comments the then Local Government Minister, Nanaia Mahuta, made last year that under her Three Waters scheme councils would still 'own' the assets.
The High Court said
"local councils will lose central incidents of ownership that they presently hold... that local councils’ ability to control the use of their assets will be materially diluted through the WSE governance structure, and... that local democratic accountability for the provision of the Three Waters services in local communities is essentially lost."
This confirms what we have known all along: That the Government's claims that councils retain ownership of water assets are just plain wrong. What will the Government say now?
The judgement also noted that the Government:
"has deliberately decided that [the Three Waters funding package] is not intended to compensate local councils for the value of the infrastructure assets"
But ultimately, our constitutional framework and parliamentary sovereignty means Parliament can make these changes to water service delivery regardless of the impact on local governance and accountability. The way to stop this is through the ballot box, and that is why we continue to work hard to raise public awareness and force the Government to Scrap Three Waters!
Our friends in the Far North are having a tough time of it as it is with money desperately needed to fix the roads and flood-damaged infrastructure.
So it's raised some hackles that the Far North District Council has spent $2.4 million on a pound to house just ten mutts. The Northern Advocate reports:
An existing dog kennel bought by Far North District Council to use as a dog pound has ballooned from a $200,000 upgrade project into a “bizarrely expensive” $2.4m facility that will house fewer dogs.
The council bought Melka Kennels near Kaikohe in 2020 with the aim of converting the commercial dog kennels into a dog shelter that would serve the district’s busy southern area.
The original plan was to spend $200,000 to upgrade the site to meet national animal welfare codes to house up to 24 dogs.
Now the new Southern Animal Shelter has morphed into a purpose-built facility that has cost $2.4m and will house just 10 dogs.
That's nearly a quarter of a million dollars per dog that can be housed at any one time and nearly three-and-a-half times the average value of a house in the district.
The Council is defending the decision, saying that it's value for money, and was partly funded by a Covid "shovel-ready" Provincial Growth Fund grant. So, taxpayers across the country paid up too...
In the latest edition of Taxpayer Talk, the focus is on local government. A review into the future of local government has been commissioned but it fails to address the main issues affecting the sector, in particular the way it’s funded and what its main functions should be.
New Zealand Initiative Executive Director, Oliver Hartwich, explains to host Peter Williams why more localism is such an important concept and why it can be great for a country’s economy. I also speak to Peter about what was wrong with the recent local government review and how the Taxpayers' Union thinks local government could be improved.
Also in the podcast, our War on Waste team focus on some silly spending by the Wellington City Council.
You can still make your voice heard on the Review into the Future of Local Government's consultation report using our easy submission tool at www.protectlocaldemocracy.nz
Thank you for your support.
NZ Herald National and Labour tied, but Chris Hipkins way ahead of Christopher Luxon - poll
The Spinoff New poll puts Labour and National neck and neck
RNZ Labour closes gap with National in new poll
Newstalk ZB Jordan Williams: Taxpayers' Union says Eleanor Catton should pay back her subsidies
Newstalk ZB The Huddle: Curia poll results and Auckland Grammar staying open despite Cyclone Gabrielle
Newstalk ZB Barry Soper: senior political correspondent on Chris Hipkins announcing $11.5 million in support for cyclone affected regions
Te Ao Māori News Labour closes gap with National in new poll
The Kaka by Bernard Hickey National emergency declared for Gabrielle
The Working Group with John Tamihere, David Seymour and Damien Grant
The Platform Jordan Williams on Eleanor Catton’s swipe at the NZ Tax Payers' Union
Kiwiblog Journalist complains polling question wasn’t leading enough
In our first episode of Taxpayer Talk for 2023, Peter Williams is joined by lawyer Stephen Franks. Stephen is a founding director of the commercial and public law firm Franks Ogilvie, a former member of Parliament and spokesperson for the Water Users' Group.
Stephen joins Peter to discuss why the Water Users' Group, backed by the Taxpayers' Union, is taking a Government minister to the Court of Appeal and what any alternative Three Waters legislation might look like. The Government has claimed that Crown Law told the former Minister for Local Government Nanaia Mahuta that co-governance of our water services is required under Treaty of Waitangi. The new Water Services Entities Act means the country’s water infrastructure will be co-governed by Iwi and local authority representatives, but at what cost to water users?
If you would like to contribute towards the Three Waters legal challenge click here
To support Taxpayer Talk, click here
If you have any comments, questions or suggestions feel free to email [email protected]
It's been another eventful week in Wellington with U-turns from National and constitutional game-playing from Labour and the Greens.
But before we get to that – the team are off to Hamilton on Monday for our Hamilton West by-election debate jointly hosted by the Taxpayers' Union and our friends at The Working Group podcast.
Also in this edition – we're hiring! If you, or someone you know, would be a good fit to join us at the Taxpayers' Union, keep reading.
If you are in Hamilton, come along to SkyCity Hamilton (346 Victoria Street) and put your questions to the candidates this coming Monday, 5 December at 7pm. You can RSVP here.
Just when we thought things couldn’t get any worse with Three Waters, Green Party MP Eugenie Sage tabled a surprise Supplementary Order Paper. Her proposal would mean that the parts of the bill relating to the ownership and control of water services and significant assets could only be repealed by 60 percent of MPs or a referendum.
The concept is known as entrenchment and such provisions are seldom used here in New Zealand. In fact, there are only six instances of its use and all relate to electoral matters, such as elections every three years, and the voting age for general elections. Essentially, entrenchment is reserved for laws on the democratic process where it would be unfair for one side to change the rules of the game with a simple majority.
But the Greens – supported by the votes of Labour MPs – are trying to tie the hands of future governments. They argue this is necessary to stop the privatisation of water assets, but what this will actually do is make it more difficult for a future government to break up the four super water entities created under the reforms and pass water assets back to councils.
It’s fair to say that the response to this move has been overwhelmingly negative and it has been condemned across the political spectrum.
It doesn’t matter whether you agree with Three Waters – or even privatisation of public assets for that matter – it’s about whether your vote in an election can actually change policy when you elect a new Government.
Seeing the justified backlash, the Prime Minister and Labour are trying to distance themselves from the proposal. In a standard response to our supporters, Labour MPs stress that the ‘…suggested amendment to the main legislation [was] put forward by Green MP Eugenie Sage, not Labour’ and that they only voted for the amendment because they were ‘…concern[ed] to prevent privatisation’.
Rather than simply withdraw Labour’s support – which would kill it stone dead – the Prime Minister has kicked the issue to Parliament's Business Committee to 'consider the principles of entrenchment more generally'. That's political speak for 'we're not sure yet whether we can get away with this'.
The Business Committee meets on Tuesday – so on the same day, we'll be publishing full page ads in major newspapers to ensure the Labour MPs (who hold the majority on the Committee) make the right decision...
The National Party need to understand they won't win next year by trying to be Labour or by not putting up a better vision for New Zealand.
Take for example their stance on their tax policy. Over the past year they have flip-flopped time and again on whether to adopt or scrap indexation as their policy. Now they have dropped their policy of abolishing the 39 percent top rate of income tax.
In an opinion piece for the NZ Herald, Jordan picks apart the opposition’s indecision.
On what should have been a day squarely focused on Grant Robertson’s fiscal mismanagement, the dramatic expansion of government spending, and resulting high inflation, there was instead an awful lot of talk about what seemed to be yet another U-turn by the Leader of the Opposition.
It’s becoming harder and harder to keep up with National’s tax policy.
[...] Where is the ambition for New Zealand? We already know that the doctors, engineers, IT professionals and others that New Zealand desperately needs to attract are picking Australia because of higher take-home pay. One of the few areas we can be competitive is in tax rates. This isn’t “trickle-down” – it is the harsh reality that New Zealand cannot compete for the world’s knowledge workers with beautiful landscapes alone. Continue reading on the NZ Herald (requires subscription).
Maybe the National Party don’t quite get it, but the Key family is staying on message!
Following the news that the Government is spending $3 million to develop new branding for their proposed Aotearoa New Zealand Public Media super entity, we launched our competition to design a logo at a fraction of the cost.
And we can now reveal the results.
The top-placed design on first preferences was the (surely, tongue-in-cheek?) 'Ministry of Truth' logo featuring Broadcasting Minister, Willie Jackson.
But in a shock — under the Single Transferable Voting rules (details of the voting and preferences on our website here), which all local councils will be moving to if the Government's "Future of Local Government" proposals go through — the 'winner' is actually the logo that came second. After all the preferences were allocated, the Green Ferns design by supporter Andy Dunn takes home the $300 prize. Congratulations to Andy! Just goes to show what STV can do...
This was really a bit of fun, but it was to make a serious point. The TVNZ/RNZ merger will cost the taxpayer millions while undermining the range of different voices in New Zealand broadcasting. We need more diversity of opinion in our media—not less.
In this edition of Taxpayer Talk, Peter Williams’s guest is author Alan Duff, the creator of the hugely successful and influential book and movie Once Were Warriors and the founder of the Duffy Books in Homes programme.
Duff's best known book and the movie came out around thirty years ago and shocked middle class New Zealand who hadn’t seen the less privileged represented in such a way. Yet three decades on has the situation around domestic violence, alcoholism and welfare dependency improved? Most statistics point to no, but why has the country not taken responsibility for fixing such social ills when the issue has been in front of us for so long? Duff is a passionate believer in education as a pathway from poverty but expresses his frustration that this pathway is just not travelled enough.
Have you ever fancied working in the thick of Wellington bureaucracy but on the side of virtue? Does fighting for lower taxes, less waste and more transparency sound like you? Or do you know someone who is politically minded and looking to take the first step in their career. We are currently looking to recruit as we build our team in Wellington for the forthcoming election year:
Grassroots and Communications Co-ordinator (Full Time): This is a hands-on role liaising with our tens of thousands of volunteers, supporters, and financial supporters who make our work possible. You’ll respond to email queries, load and monitor social media posts, coordinate petitions and support our communications and campaigns team. You'll also be organizing and attending our public meetings, road shows, and A&P type-events to build our community engagement activities.
Graduate Researcher (Full Time): You'll work with our Economist and researchers on research policy projects to support our work, including preparing briefing papers, parliamentary submissions, conducting literature reviews and drafting media release and blog posts. Your research will help to provide the substance to back our campaigns that drive improvements to public policy.
Admin Support (Part Time): This is a varied role supporting the team dealing with membership queries and correspondence, database management, and fulfilling merchandise sales. You should be communicative, organised and computer literate with a firm grasp of Word and Excel. You won’t mind doing whatever is needed; you’re just keen to get stuck in and support others to make a difference.
You can find the full job adverts by clicking on the job titles above. Feel free to share this e-mail with anyone you think might be interested.
Thank you for your support.
RNZ The Panel with Dr Ella Henry and Phil Taylor (Part 1)
Stuff Which parties would a voting age lowered to 16 likely favour in Parliament?
Stuff Wayne Brown could become Auckland's first $5 million mayor
SunLive Council to borrow $2M to replace water pipes
NZ Herald Jordan Williams: Christopher Luxon wrong to U-turn on tax policy
Democracy Project Josh Van Veen: Wayne Brown’s first month
Newstalk ZB The Huddle: Police pursuit policy reform and the state of the retirement age
Subject: Tackling the culture of dishonesty in Wellington re three waters
Thank you again for supporting the fight against Nanaia Mahuta’s Three Waters proposals. Further to Peter Williams’ (no relation!) note last week, I’m emailing to ask for your feedback on a matter we have been thinking about for some time. This email is longer than usual, but we think you'll agree it needs to be for what we're considering.
First though, in case you missed it, our formal submission to the Select Committee on the Three Waters "Water Entities Bill" is here. This emaiL concerns the legal opinion appended to that submission – you may have heard our lawyer interviewed this morning on "Today FM", and the media release summarising the opinion is copied at the end of this email.
Since David Farrar and I co-founded the Taxpayers’ Union in 2013, we have noticed growing public sector tolerance of dishonesty. There has always been some expectation of manipulation and ‘spin’ in the media. But we could expect Ministerial advisers and contracted professionals to maintain their own standards. At the least, they would stay silent when Ministers were being “political”. Now it seems agencies and public servants feel compelled to collude in lying.
In the context of the Three Waters campaign, we’ve seen an unprofessional approach in the way people who ought to know better perpetrated and repeated some Minister’s claims about Three Waters. We have long been worried that they’ve seemed untrue (or at the very least, calculated to be misleading). Take two examples:
Public service professional standards of honesty and integrity have traditionally relied on the State Services Commissioner (now the "Public Service Commissioner") to maintain. We fear, however, that the Public Services Commission has deteriorated just as much as the public sector agencies it is set up to monitor. We have not seen it effectively disciplining agencies which have been dishonest or used public money for political advertising campaigns (NZTA, for example).
So in that context I asked lawyers Brigitte Morten and Stephen Franks for an opinion on Minister Mahuta’s false claims about Three Waters reforms.
We wanted a strict legal opinion on whether minister Mahuta was in breach of the Fair Trading Act and securities legislation regarding the claims she was making about councils owning “shares” in the Three Waters assets – i.e. would she be a crook if this was the context of a share offer to the public?
The opinion we got back, which has also been peer reviewed by a Queen's Counsel, is probably the most damning legal opinion I have ever read. It concludes that Minister Mahuta's claims regarding ownership have been "calculated to deceive Parliamentarians, and when it becomes law, to deceive New Zealanders generally".
The legal opinion is very detailed, but it is not hard to understand. It calls the claims of retention of local ownership "false, misleading and deceptive" as "councils are expressly denied the rights of possession, control, derivation of benefits, and disposition that are the defining attributes of ownership". Gary Judd QC comments in his review of the legal opinion: "When all the lying statements are put together, as [the] opinion does, the government’s effrontery is breath-taking."
While the opinion says the Minister can’t be prosecuted for criminal wrongdoing because her comments were not made "in trade" it hadn’t occurred to us that those party to Ministers’ false assurance could potentially be liable and held to account.
Most notably they raise the possibility that culpability could reach any professional advisors on the Ministers "Governance Working Group" on three waters governance, and the council's lobby group (that sold out to the Government), Local Government New Zealand.
In my experience, lawyers usually hedge their bets and understate wrongdoing. But that isn’t the case here. The lawyers think there is a clear breach of not only the usual standards of honesty and fair dealing, but of the law. Have a read of the opinion and judge for yourself.
So we want you feedback. We’ve taken the first step and informed the Commerce Commission (our lawyer's letter is here).
If the Commerce Commission don’t act promptly, should we seek advice on the steps on a private prosecution? That would be a big trigger to pull – it would likely send shockwaves through Wellington (in the best possible way). But how else can we STOP the dishonesty, force the Government (or at least those working for it) to acknowledge that Three Waters is an asset grab – that council’s won’t “own” the assets in any meaningful way?
Most importantly how do we re-establish expectation that public servants’ statements are truthful in the old-fashioned sense – that they will not allow themselves to be misused to deceive, by omission or commission?
For the politicians, the task of keeping them honest rests at the ballot box – but our democracy relies on a professional public service that is truthful and enjoys the confidence of all New Zealanders as straight shooters. That can mean 'free and frank' advice to Ministers, and telling them things they don't want to hear. We cannot let it stand that the bureaucracy are playing politics and joining hands in political and legal deceptions on the public.
So have a read of the opinion, let us know your thoughts, and I will ensure each and every reply is read as we work out where to from here.
Thank you for your support.
PS. For those of you who have marked the date - the Water Users Group is finally in Court tomorrow! They are there to argue that the official advice provided to and relied upon by Minister Mahuta (the advice that she claims says that Three Waters is necessary for the Crown to comply with the Treaty) should be made available for public security. To my immense frustration the High Court has prohibited those who are funding the cause from sitting in on or listening to the hearing. I am hoping to sit down with one of the two QCs who are arguing that case tomorrow or Friday, and will update all of those who have chipped into that cause just as soon as I have news to give you. You can read the memo from the Court on the reason we cannot watch here, and the latest update from the Water Users' Group here.
Legal Opinion: Three Waters Bill “calculated to deceive” – Minister’s professional advisers possibly liable as party to the fraud
Like tens of thousands of New Zealanders, the Taxpayers’ Union submitted to the Finance and Expenditure Select Committee on Three Waters (Water Services Entities Bill). With the Union’s submission was a bombshell legal opinion.
Ministers have repeated assurances that councils will continue to own water assets under the proposed ‘Three Waters’. But those claims are utterly false. Public law firm Franks Ogilvie, in an opinion reviewed by Gary Judd QC, lay out the extent to which these claims have been "calculated to deceive Parliamentarians, and when it becomes law, to deceive New Zealanders generally". The opinion is being released publicly today.
Taxpayers’ Union Executive Director Jordan Williams says, “It is clear the Government realised that they could not convince New Zealanders that handing over ownership of local assets was a good idea. So they’ve instead redefined 'ownership' to mean nothing, so they can promise continued community ‘ownership’ in an incredible display of contempt for the public, the truth and the law.”
The legal opinion is very detailed, but it is not hard to understand. It calls the claims of retention of local ownership “false, misleading and deceptive” as “councils are expressly denied the rights of possession, control, derivation of benefits, and disposition that are the defining attributes of ownership”. Gary Judd QC comments in his review of the legal opinion: “When all the lying statements are put together, as [the] opinion does, the government’s effrontery is breath-taking.”
The legal opinion concludes that despite the obvious dishonesties, ministers are immune to prosecution under the Financial Markets Conduct Act 2013 and the Fair Trading Act 1986 as they are not ‘in trade’.
Mr Williams continues, “But that defence does not apply to people assisting the Ministers in a professional capacity. That would include, for example, members of the Working Group on Three Waters governance that could be held liable as they operated ‘in trade’ as professionals providing a service and could be deemed complicit in making the untrue claims.”
“Additionally, legal experts found that Local Government New Zealand ‘could be found to be acting in trade in its provision of representation and advisory services', so their public statements promoting the lie that councils will ‘own’ water assets under Three Waters, could make them also liable to prosecution.”
The authors of the legal opinion do not mince words in their assessment of the situation stating: “Ministers appear to have cold-bloodedly decided to confuse Councils and ratepayers with false statements.”
Mr Williams says, “Ministers might dodge prosecution because they’re in politics, not ‘trade’, but the lawyers note the expectations in the Cabinet Manual and Standing Orders. They must not mislead the House and they must act to ‘the highest ethical standards'. However, the consequences for our elected members will not come from the courts, but at the ballot box.”
“It is difficult to see how the Government can proceed with such a discredited abuse of legislative process. The huge public opposition to the Bill came without knowing of such damning conclusions from respected legal experts. This is not a careless, technical, or understandable mistake in legislation. It is intentionally deceptive. The lies have been actively promoted by ministers, Working Group members, LGNZ, and various elected and non-elected officials."
“We’ll be seeing if anything effective can be done to restore customary honesty among those drawn into this ministerial cheating. If officials were forced to be complicit, they may need better support against ministerial pressure. We’ll be considering carefully whether authorities who punish and deter calculated dishonesty by business people, can do their job when the cheating comes from the top."
Access legal opinion at www.taxpayers.org.nz/calculated_to_deceive
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