Much has been made of Murray McCully’s
so-called “nationalisation” of the waterfront for RWC party central, through
the exercise of reserve powers under the special legislation for the Rugby
World Cup.
The legal position is, however, very different. While some regulatory approvals for standard
event-based activities may be fast-tracked through a special process under the
RWC 2011 (Empowering) Act, the RWC Act does not give the Minister the ability
to “take control” of the waterfront. The
Minister’s statutory role is reactive only, namely, considering applications
made to and assessed by the independent RWC Authority. Any ability for the
government to “take the lead” on the party central activities must have been
garnered collaboratively, and does not come from the exercise of power under
the RWC Act.
In any event, the applications presently being
made urgently are conjoint applications from the Ministry of Economic
Development and the Auckland Council’s events team. These applications were, I understand, in the
process of being prepared collaboratively before the Minister’s announcement. And
the fast-tracked approvals currently being sought are largely mundane.
Finally, I think McCully may well be forced
to relinquish that power to sign-off the applications to some other minister,
because his actions may have predetermined the outcome and created a disqualifying
conflict of interest.
The RWC was passed late last year to
provide for special procedures for regulatory approvals for RWC activities and
liquor licences. An independent RWC Authority (chaired by former judge, Sir
Bruce Robertson and joined by a number of experts) was constituted to consider
applications.
For some time, anyone seeking approval or
consent (or declaration of permitted activity status) for a RWC activity that
could not reasonably be obtained in time under the usual processes could apply
through the special fast-tracked process.
Such applications were still subject to a
formal, but expedited, participatory processes.
They were determined by the RWC Authority, rather than the local
authority or agency usually responsible.
Numerous such applications have been granted by the RWC Authority.
The legislation also provided for an even
more expedited process “in circumstances of urgency that, for good reason, were
not foreseen”. A higher threshold was required
(necessary to “secure public safety”, to “avoid seriously compromising” the
RWC, or to “provide support for” RWC organisers).
A different, and more expedited, process
was provided for. Rather than being determined by the RWC Authority, the RWC
Authority only assesses the application and makes an recommendation to the
Minister for the RWC. There is no
obligation to subject the application to a participatory process.
The decision about whether the approval
should be granted then falls to the Minister for the RWC. He must consult the Minister for Economic
Development and other relevant Ministers.
He must take account of (but is not bound by) the recommendation of the
RWC Authority. His decision is final.
(If the application is for a declaration
that something is a permitted activity, the Minister formally recommends to the
Governor-General that regulations be promulgated confirming the activity is
permitted. But otherwise the application
for consent is merely approved by the Minister.)
That’s all.
They are the only “special” powers under the RWC Act. The Act does not provide any power to assume
control over or nationalise events. The
Minister’s role is reactive, as ultimate decision-maker, once an urgent application
is made. And then only after the independent RWC Authority has scrutinised it.
Secondly, we can see these powers in action
by looking at what has been applied for in the most recent application. The application is a joint one, between the Ministry
of Economic Development and Auckland Council’s events unit. MED is seeking permission to use Captain Cook
Wharf for fanzone events and Auckland Council are seeking to extend the existing
liquor licence over the Wharf.
The MED application is totally
mundane. As the Coastal Plan limits the
activities that can be undertaken on port land, permission is needed under the
Resource Management Act to engage in non-port activities, to install temporary
structures like viewing screens, small stage facility, food and beverage
kiosks, toilet facilities and temporary fencing, and (only by way of caution)
to exceed noise controls. This is
standard event stuff. But the usual RMA
process wouldn’t enable it to be considered in time, hence the resort to the
special expedited process under the RWC Act.
The same goes for the Auckland Council’s
application to extend its existing liquor licence. (As an aside, I don’t see any special power
to expedite liquor licence applications or for an applicant to apply to vary
the condition of the licence. But I
stand corrected.)
The RWC Authority is considering both
applications following a very brief period for public submissions and is holding
a public hearing today.
Thirdly, it’s clear from the application to
the RWC Authority that an application is being made to Auckland Transport /
Auckland Council to also temporarily close Quay Street to provide access and
egress.
The Council has the power to temporarily
close roads under s 342 and Schedule 10 of the Local Government Act 1974. (I
think, given the Auckland Council reforms, these powers have been vested in
Auckland Transport, but I haven’t traced it through the legislation.)
If closure is needed for an event, public
notice of intention to close the road is needed. If closure is “during a period when public
disorder exists or is anticipated”, no notice is needed. Again, standard stuff.
And no need to resort to the special RWC Act.
Finally, returning to the Minister’s
special power to approve urgent applications under the RWC Act. It’s a basic principle of administrative law
that decision-makers exercising statutory powers must keep an open mind and
must not predetermine the outcome of applications (especially where the
legislation directs them to consider certain matters and consult other
people). That ensures applications are
properly considered and there is no conflict of interest. In rare cases, the legislation might
implicitly authorise or contemplate a certain decision-maker making a decision
even when they have a conflict of interest, but I don’t think that applies
here.
Now, there’s a live question about whether
McCully’s directives and public statements mean he has compromised his ability
to personally consider the urgent applications.
It’s fair to say, I think, his conduct and statements mean he is now
incapable of independently and dispassionately considering the very
applications he has directed and championed.
In such circumstances, s 7 of the
Constitution Act 1986 allows another Minister to exercise that power (see also
cl 2.70(c) of the Cabinet Manual). It
will be interesting to see if this happens.
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