Andy Loader challenges changes to Simon Watts' Local Government (Systems Improvement) Bill, arguing that they strengthen council chief executives' control over information available to elected councillors. He questions the implications for democratic accountability, ratepayers' rights and council oversight, while raising wider concerns about co-governance and the coalition government's commitment to equal representation.
Thanks to last-minute changes to Simon Watts' Local Government (Systems Improvement) Bill, the ability for Mayors and Councillors to demand information from council CEOs has been restrained.
Despite the Minister telling the media that he has "strengthened" councillors' rights to information, with the passing of this bill into law, the right to make any final decisions related to information that councillors can or can’t see is not in the hands of the councillors themselves, but the council CEOs.
Simon Watts stated that this amendment would remove the CEO's decision-making power and allow councils to overrule officials blocking information – but the last-minute change did the exact opposite, strengthening the CEO's power and removing the council's ability to overrule them.
But by Tuesday afternoon (15-9-26), it was too late. Watts had passed the amendment in Parliament. And at 11 pm the next day (i.e. Wednesday 16-9-26) it passed the third (and final) reading in Parliament.
For over ten years the Taxpayers' Union has been campaigning to improve access to information for local council elected officials.
Since 2014, they have called for statutory law setting out that mayors and councillors have the same rights to information held within a council that directors have for a company.
The common law (i.e. court-made law) is actually quite strong. It has a default right to information and puts the onus on the council to show that there was reason to believe information would likely be misused.
But the law was being widely ignored. We have regularly seen examples of councillors having to use freedom of information Act requests to seek basic information from their own councils.
That has been happening because, council CEO’s around New Zealand have been blocking councillors from accessing information because the CEO’s claim it is "operational, not governance" information; "private"; or "commercially sensitive".
Successive Local Government Ministers - first Simeon Brown, then Simon Watts – stated that they would fix it. It wasn't hard: councillors just needed to be given a clear right to the information, without council officials acting as gatekeepers.
But in fact the proposed Bill put the chief executive in charge of deciding what information elected councillors were entitled to see.
The original bill was bad enough, but at least it included a provision that gave elected members (through the governing body) the power to override the chief executive.
But the last-minute changes removed that basic protection.
In May, the Taxpayers Union obtained independent legal advice from public law experts Franks Ogilvie, which confirmed their concerns: Simon Watts’ bill did the very opposite of what he said was intended.
In m y opinion this new legislation will just make it harder for elected councillors to gain information from the council bureaucracy.
It should be a fundamental fact that elected councillors are in control and that Council information is theirs and they have an automatic entitlement to that information unless it can be shown by those wishing to restrict them from access, that there is a risk of misuse of that information.
Those wishing to restrict councillor’s access to information must be required to show that there is a risk which justifies any such restriction.
The elected councillors are after all, the ratepayers representatives elected to govern the Council and its bureaucracies and the freedom to request information from the council is an essential tool that allows them to monitor the performance of the council staff, senior council officers and the Chief Executive.
Withholding information from elected councillors on their governing body particularly when it directly impacts an elected member's understanding of their duties and risks is a very real example of the democratic risks at stake when officers withhold so-called confidential information from elected representatives on their governing body.
Failing to ensure that councillors have a statutory right to council information risks cementing powers of unelected officials over those of elected councillors; and allows for council minority voices to be effectively silenced by the withholding of information.
We have seen and heard many instances of council officials acting as if councillors are not in charge, that councillors monitoring of management activity is almost considered interference, and that councillors who may be awkward or critical should be kept in the dark, particularly where they are seen to be in pursuit of information embarrassing to the controlling people in the Council.
I believe this new legislation undermines the constitutional role of elected members and contradicts the Local Government Act’s principle that power rests with the governing body and creates an undemocratic situation where the Chief Executive is given the role of statutory gatekeeper.
Given the current climate where there are many councils throughout NZ which have appointed unelected members onto the council and given them voting rights under the so-called Co-Governance provisions claimed under the Treaty of Waitangi, this legislation can only add fuel to the fire of race based claims related to the Treaty.
Councils are rushing to lock in Mana Whakahono ā Rohe agreements which influence planning and resource-consent decisions—and cannot be changed or terminated without every party’s consent.
Northland Councillor Davina Smolders has had her own council officials refuse to provide her with information about what is being negotiated in the Far North. Decisions affecting resource management, planning, and property rights should remain in the hands of democratically elected councillors.
In my opinion the new legislation will only provide more opportunity for unelected bureaucrats to withhold relevant information from democratically elected councillors in support of their positions on the issue of Co-Governance.
The councillors are effectively the governors of the organisation and as such they should be seen as the owners of council information.
Given the assumption that they are the governors of the organisation and that effectively they are the owners of council information, it should always be considered that where information is to be denied to a councillor, justification for any such decision must prove that it is against the interests of the council to provide it.
The Local Government Act 2002 is clear that the council is responsible and democratically accountable for the local authority’s decisions, while the Chief Executive is tasked with "implementing" those decisions.
In my honest opinion Simon Watts got this decision wrong and in fact the final legislation will do more harm than good. It will only provide more reasons to deny the ratepayers of NZ from accessing information on which they may rely when making decisions related to the governance of their local regions.
This coalition government promised if they were elected in 2023 to do away with all race based legislation and stop all talk of co-governance at any level.
Yet we are constantly being told that the Treaty of Waitangi created a partnership between the Crown and Maori and to fulfil this we need to adopt a system of Co-Governance with Maori.
This whole idea of Co-Governance is nothing more than a racist attempt to gain control based on an erroneous interpretation of the Treaty.
Co-governance is not about the Treaty it is solely about control and getting the monetary benefits that go with having control. It’s about a small percentage of the population (approximately 17%) getting fifty percent of control based on their ethnicity and the others (approximately 83%) getting the rest.
We are told repeatedly by the so-called elite from Iwi that this is the only way forward to honour the Treaty. But in fact this is nothing more than moving from the democratic system of government we have had since the signing of the Treaty to a system of racial discrimination where equality in government has no place as it will be replaced by a person’s ethnicity.
We also have many local bodies signing off on co-governance agreements as if they are making some magical step towards implementing Treaty requirements when in actual fact all they are really achieving is to introduce a race based bureaucracy which is nothing more than turning democracy into Apartheid under the name of Co-Governance.
Attempts to racialise New Zealand through implementation of co-governance, has provoked significant public complaint. Government has a duty to uphold the Rule of Law and protect the democratic rights of all New Zealanders.
We see Maori representatives looking to gain representation on local and central government controlled organisations with most of this representation providing a good source of income, channelling money from the public purse.
Our system of governance is based on EQUALITY of all citizens regardless of race colour or creed yet if we take the example set by the current Prime Minister you would argue that Maori have more rights than all other races in New Zealand.
The National Party and its coalition government partners made many promises (both before and after the election) that they would make every effort to eliminate racial preferences from government decision making, in a commitment to equal citizenship under New Zealand’s democratic system of government.
But in fact they have failed to take any significant actions in this regard since taking office in 2023.
It should be one of the coalition government’s most important objectives to legislate against discrimination on the basis of race, gender or sexuality.
Furthermore, by discriminating against people on the basis of race, gender and sexuality, it dangerously undermines New Zealanders’ right to equality before the law.
But instead of stepping up and dealing with these growing concerns, the PM and his coalition government continue to turn a blind eye to these policies.
Much of the government bureaucracy (both central and local) has demonstrated support for co-governance and outright resistance to any change, that without decisive action to remove divisive race‑based provisions from law and practice - and to reassert the primacy of Parliament - the drift towards tribal governance will continue. This represents an enormous threat to New Zealand democracy.
The fact of the matter is that by going down this pathway we find our country is being divided on the basis of ethnic background; becoming a place where some citizens were denied equal political rights on the basis of ethnic background.
Yet even with this knowledge and the mandate that they were given at the 2023 election, based on their promises to remove race‑based laws and practices, we have seen Prime Minister Luxon state that the issues of race are not serious and that he is in favour of co-governance.
The National, Act, NZ First coalition government under Luxon’s leadership has ignored their responsibility to their voting supporters at the time of the last election, by not carrying out their election promises to remove race‑based laws and practices.
The enactment of this new legislation which effectively restricts the ability for councillors to request information from the council can only exacerbate the problems rather than solve them.
Restrictions on communications and dissemination of information are the two main tools required for overthrow of democratic governance.
With the enactment of this new legislation Simon Watts and the coalition government have just provided another tool which can be used in the fight for co-governance and against democracy within NZ.