Local Government (Auckland Council) Amendment Act 2010

Schedule 2 Provisions relating to board promoting issues of significance for mana whenua groups and mataawaka of Tamaki Makaurau

s 89

Appointment to membership and cessation of membership

1 Board's membership

• (1) The board consists of 9 members appointed under clauses 5 to 8.

  (2) The membership is composed of—

  • (a) 2 mataawaka representatives; and

  • (b) 7 mana whenua group representatives.

2 Selection body's establishment and function

• (1) A selection body is established when the persons chosen as mana whenua group representatives under clause 4 meet for the first time.

  (2) If a person on the selection body tells the Minister of Māori Affairs that he or she resigns, the Minister must notify the mana whenua group that nominated the person and ask the group to nominate a replacement.

  (3) The selection body's sole function is to appoint members to the board.

  (4) In appointing members to the board, the selection body—

  • (a) must be guided only by the board's purpose, functions, and powers; and

  • (b) is not subject to directions from the Auckland Council or any of its committees or councillors; and

  • (c) may seek advice from any source it considers appropriate.

  (5) The selection body ceases to exist when it has performed its function.

  (6) If the selection body is unable to perform its function, the Minister of Māori Affairs must appoint the members of the board as if the Minister were the selection body.

3 Costs of selection process

• (1) Each mana whenua group must meet the costs of mandating its representatives as persons on the selection body.

  (2) The Auckland Council must meet the costs of selecting members of the board.

4 Minister gives notice that mana whenua group representatives needed for selection body

• (1) The Minister of Māori Affairs must give written or electronic notice to mana whenua groups that mandated representatives of mana whenua groups are needed for the selection body.

  (2) The notice must state a time by which each group must tell the Minister the name of the person who is to be the group's mandated representative on the selection body.

  (3) Each mana whenua group that receives the notice may choose 1 person to be its mandated representative on the selection body.

5 Qualifications of members

• (1) To be a member of the board, a person must—

  • (a) be a natural person; and

  • (b) consent to being appointed to the board; and

  • (c) not be disqualified under subclause (2).

  (2) The following persons are disqualified from being members:

  • (a) a person who is under 18 years of age:

  • (b) a person who is an undischarged bankrupt:

  • (c) a person who is prohibited from being a director or promoter of, or being concerned or taking part in the management of, an incorporated or unincorporated body under the Companies Act 1993, or the Securities Act 1978, or the Securities Markets Act 1988, or the Takeovers Act 1993:

  • (d) a person who is subject to a property order under the Protection of Personal and Property Rights Act 1988:

  • (e) a person in respect of whom a personal order has been made under that Act that reflects adversely on the person’s—

    • (i) competence to manage his or her own affairs in relation to his or her property; or

    • (ii) capacity to make or to communicate decisions relating to any particular aspect or aspects of his or her personal care and welfare:

  • (f) a person who has been convicted of an offence punishable by imprisonment for a term of 2 years or more, or who has been sentenced to imprisonment for any other offence:

  • (g) a current member of Parliament:

  • (h) a current Auckland councillor or current local board member:

  • (i) a person who is disqualified under another Act.

6 Selection body chooses mataawaka representatives for board

• (1) The selection body must choose the board's 2 mataawaka representatives.

  (2) The selection body must choose the mataawaka representatives by following a process that, at a minimum,—

  • (a) includes public notification of the process that the body proposes to use for choosing the representatives; and

  • (b) provides an opportunity for nominations to be received; and

  • (c) requires the body to take into account the views of mataawaka when choosing the representatives.

  (3) The selection body must apply clause 5 when choosing the 2 mataawaka representatives.

7 Selection body chooses mana whenua group representatives for board

• (1) The selection body must choose the board's 7 mana whenua group representatives.

  (2) The selection body may choose people on the selection body for the board.

  (3) The selection body must apply clause 5 when choosing the 7 mana whenua group representatives.

8 Process for appointing members

• (1) A person whom the selection body is proposing to appoint to the board must give a written certificate to the selection body stating that the person—

  • (a) is not disqualified under clause 5(2); and

  • (b) consents to being appointed to the board.

  (2) The selection body must give the members it chooses a certificate of appointment that—

  • (a) states the date on which the appointment starts; and

  • (b) is signed by at least 2 persons on the body.

  (3) The selection body must give copies of the certificates of appointment to—

  • (a) the Minister of Māori Affairs; and

  • (b) the Auckland Council.

  (4) The selection body must complete the process in this section at least 2 months before the ending of the terms of office of the members of the board.

9 Cessation of membership

• (1) The term of office of a member of the board is 3 years.

  (2) A member of the board remains a member until the earliest of the following:

  • (a) he or she becomes disqualified under clause 5(2):

  • (b) he or she is removed under clause 10:

  • (c) his or her term of office ends:

  • (d) he or she dies:

  • (e) he or she resigns.

  (3) A member may resign from the board by giving 4 weeks’ written or electronic notice to—

  • (a) the board; and

  • (b) the Minister of Māori Affairs.

  (4) If a member of the board dies or resigns or is removed under clause 10, the selection body must appoint a replacement member in the manner described in whichever of clause 6 or 7 applies.

  (5) However, if the member dies or resigns or is removed under clause 10 less than 12 months before polling day for the next election of the Auckland Council, the remaining members of the board may choose not to have a replacement member appointed before polling day.

  (6) A replacement member's term of office is the uncompleted term of the member he or she replaces.

  (7) Members may be reappointed.

10 Removal of members

• (1) A majority of the board may, at any time for just cause,—

  • (a) remove a member appointed by the selection body:

  • (b) remove a member appointed as a member of an Auckland Council committee under section 85.

  (2) In subclause (1), just cause includes misconduct, inability to perform the functions of office, neglect of duty, and breach of any of the collective duties of the board or the individual duties of members (depending on the seriousness of the breach).

  (3) The removal must be made by written notice to the member (with a copy to the Minister of Māori Affairs and the Auckland Council).

  (4) The notice must—

  • (a) state the date on which the removal takes effect, which must not be earlier than the date on which the notice is received; and

  • (b) state the reasons for the removal.

  (5) The board may remove a member with as little formality and technicality, and as much expedition, as is permitted by—

  • (a) the principles of natural justice; and

  • (b) a proper consideration of the matter; and

  • (c) the requirements of this Act.

11 No compensation for loss of office

• A member of the board is not entitled to any compensation or other payment or benefit relating to his or her ceasing, for any reason, to hold office as a member.

Meetings

12 Chairperson and deputy

• (1) The board must appoint a member to act as chairperson and a member to act as deputy chairperson at the first meeting after each ending of a term of appointment.

  (2) The chairperson and the deputy chairperson each hold office until the earlier of—

  • (a) the passage of 3 years:

  • (b) polling day for the Auckland Council.

  (3) When a member's term of appointment as chairperson ends, the member may be reappointed as chairperson, or may be appointed as deputy chairperson, more than once.

  (4) When a member's term of appointment as deputy chairperson ends, the member may be appointed as chairperson, or may be reappointed as deputy chairperson, more than once.

13 Setting up meetings

• (1) The board—

  • (a) must hold 6 meetings a year; and

  • (b) may hold as many more meetings as are necessary to enable it to carry out its purpose.

  (2) Notices of meetings must be given as follows:

  • (a) the notice must be given at least 5 working days before a meeting:

  • (b) the chairperson must give the notice:

  • (c) the notice must be given to each member:

  • (d) the notice must state the date, time, and place of the meeting:

  • (e) the notice must be given by hand, by post, or by an electronic means.

  (3) A member may waive the requirement of giving notice of a meeting to him or her.

  (4) A member may request leave of absence from a particular meeting.

14 At meetings

• (1) The board must keep and approve the minutes of its meetings. The properly kept and approved minutes are prima facie evidence of the business transacted at the meetings.

  (2) A member has the right to attend any meeting, unless lawfully excluded.

  (3) A member unable to attend a meeting in person may attend by way of an electronic means.

  (4) The quorum for meetings is 5 members, who must include the chairperson or deputy chairperson.

  (5) A meeting is properly constituted if a quorum is present.

  (6) At least a quorum must be present during the whole of the time at which the business is transacted at the meeting.

  (7) The board may invite to meetings any advisers who the board considers necessary to facilitate the efficient transaction of the meeting's business.

  (8) The board may implement rules and procedures to ensure that it reaches decisions following—

  • (a) the highest level of good-faith engagement; and

  • (b) consensus decision making.

15 Members bound by decisions

• Members are bound by the decisions made by the board and must not take steps to undermine the decisions.

Validity and invalidity

16 Appointments, meetings, and actions

• (1) The appointment of a member is not invalid because of a defect in the appointment.

  (2) A meeting is not invalid if a member does not receive a notice of the meeting or does not receive it in time unless—

  • (a) the person responsible for giving the notice is proved to have acted in bad faith or without reasonable care; and

  • (b) the member concerned did not attend the meeting.

  (3) Nothing done by the board is invalid because of—

  • (a) a vacancy in the membership of the board at the time the thing was done; or

  • (b) the subsequent discovery of a defect in the appointment of a person acting as a member; or

  • (c) the subsequent discovery that the person was incapable of being a member.

Remuneration, expenses, liabilities, and funding

17 Remuneration

• (1) The Auckland Council must appoint an independent expert to inform it of appropriate fees for the Council to pay the members of the board.

  (2) The Auckland Council must appoint the independent expert as soon as practicable after it is elected.

  (3) The independent expert—

  • (a) must consider the board's purpose, functions, and powers; and

  • (b) must discuss the matter with the Auckland Council and the board; and

  • (c) may discuss the matter with anyone else he or she considers necessary; and

  • (d) must make a recommendation to the board.

  (4) The independent expert must inform the board and the Auckland Council of the appropriate fee for—

  • (a) the chairperson; and

  • (b) the deputy chairperson; and

  • (c) other board members.

  (5) The Auckland Council must act in accordance with the information provided to it by the independent expert.

18 Expenses

• A member of the board is entitled, in accordance with the fees framework (as defined in section 10(1) of the Crown Entities Act 2004), to be reimbursed for actual and reasonable travelling and other expenses incurred in performing his or her functions and duties as a member.

19 Liabilities

• A member is not liable for anything done or omitted in good faith in the performance of the board's functions or the exercise of its powers.

20 Funding

• (1) To enable the board to carry out its purpose, perform its functions, and exercise its powers, the Auckland Council must meet the reasonable costs of—

  • (a) the board's operations; and

  • (b) the board's secretariat; and

  • (c) establishing committees under section 86; and

  • (d) seeking and obtaining advice under section 86.

  (2) The board and the Council must make a funding agreement every year on the amount of money and the level of servicing that the Council is to provide to the board.

  (3) The agreement must include the board's work plan for the year.

  (4) The agreement must include—

  • (a) the fees payable to the board's members under clause 17; and

  • (b) provision for payment of reasonable expenses under clause 18.

  (5) The board and the Council must negotiate the agreement in good faith.

  (6) The agreement is to be made within a time that enables the board to continue to carry out its purpose without interruption.

  (7) The board or the Council may initiate a review of the funding agreement by giving a written or electronic notice to the other party stating the terms of the review.

Conflict of interest disclosure rules

21 Duty to act in good faith and not at expense of board’s interests

• A member of the board must, when acting as a member, act in good faith and not pursue his or her own interests at the expense of the board’s interests.

22 When interests must be disclosed

• (1) In this clause, matter means—

  • (a) the board’s performance of its functions or exercise of its powers; or

  • (b) an arrangement, agreement, or contract made or entered into, or proposed to be entered into, by the board.

  (2) A person is interested in a matter if he or she—

  • (a) may derive a financial benefit from the matter; or

  • (b) is the spouse, civil union partner, de facto partner, child, or parent of a person who may derive a financial benefit from the matter; or

  • (c) may have a financial interest in a person to whom the matter relates; or

  • (d) is a partner, director, officer, board member, or trustee of a person who may have a financial interest in a person to whom the matter relates; or

  • (e) may be interested in the matter because this Act so provides; or

  • (f) is otherwise directly or indirectly interested in the matter.

  (3) However, a person is not interested in a matter—

  • (a) only because he or she is a member of a mana whenua group or mataawaka group; or

  • (b) because he or she receives an indemnity, insurance cover, remuneration, or other benefits authorised under this Act; or

  • (c) if his or her interest is so remote or insignificant that it cannot reasonably be regarded as likely to influence him or her in carrying out his or her responsibilities under this Act; or

  • (d) if this Act provides that he or she is not interested, despite this clause.

23 Obligation to disclose interest

• (1) A member who is interested in a matter relating to the board must disclose details of the interest in accordance with clause 24 as soon as practicable after the member becomes aware that he or she is interested.

  (2) A general notice of an interest in a matter relating to the board, or in a matter that may in future relate to the board, that is disclosed in accordance with clause 24 is a standing disclosure of that interest for the purposes of this clause.

  (3) A standing disclosure ceases to have effect if the nature of the interest materially alters or the extent of the interest materially increases.

24 Where and to whom disclosure of interest must be made

• The member must disclose details of the interest in an interests register kept by the board and to—

  • (a) the chairperson or, if there is no chairperson or if the chairperson is unavailable or interested, the deputy chairperson; and

  • (b) the Auckland Council.

25 What must be disclosed

• The details that must be disclosed under clause 24 are—

  • (a) the nature of the interest and the monetary value of the interest (if the monetary value can be quantified); or

  • (b) the nature and extent of the interest (if the monetary value cannot be quantified).

26 Consequences of being interested in matter

• A member who is interested in a matter relating to the board—

  • (a) must not vote or take part in any discussion or decision of the board or any committee relating to the matter, or otherwise participate in any activity of the board that relates to the matter; and

  • (b) must not sign any document relating to the entry into a transaction or the initiation of the matter; and

  • (c) is to be disregarded for the purpose of forming a quorum for that part of a meeting of the board or committee during which a discussion or decision relating to the matter occurs or is made.

27 Permission to act despite being interested in matter

• (1) The chairperson of the board may, by prior written notice to the board, permit 1 or more members, or members with a specified class of interest, to do anything otherwise prohibited by clause 26 if the chairperson is satisfied that it is in the public interest to do so.

  (2) The permission may state conditions that the member must comply with.

  (3) The deputy chairperson may give the permission if there is no chairperson or if the chairperson is unavailable or interested.

  (4) The permission may be amended or revoked in the same way as it may be given.

  (5) The board must disclose an interest to which a permission relates in its annual report, together with a statement of who gave the permission and any conditions or amendments to, or revocation of, the permission.

Delegation

28 Ability to delegate

• (1) The board may delegate any of its functions or powers, either generally or specifically, to any of the following persons by resolution and written notice to the person or persons:

  • (a) a member or members:

  • (b) the executive officer or any other member of the secretariat:

  • (c) a committee:

  • (d) any other person or persons approved by the board:

  • (e) any class of persons that comprise any of the persons listed in paragraphs (a) to (d).

  (2) Subclause (1) does not apply to any functions or powers specified in this Act as not being capable of delegation.

  (3) The board must not delegate the general power of delegation.

  (4) A board member must not delegate the function of attending the board's meetings.

29 Powers of delegate

• (1) A delegate to whom any function or power of the board is delegated may, unless the delegation provides otherwise, perform the function or exercise the power in the same manner, subject to the same restrictions, and with the same effect as if the delegate were the board.

  (2) A delegate who purports to perform a function or exercise a power under a delegation—

  • (a) is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation; and

  • (b) must produce evidence of his or her authority to do so, if reasonably requested to do so.

30 Effect of delegation on board

• No delegation in accordance with this Act—

  • (a) affects or prevents the performance of any function or the exercise of any power by the board; or

  • (b) affects the responsibility of the board for the actions of any delegate acting under the delegation; or

  • (c) is affected by any change in the membership of the board or of any committee or class of persons or by any change in an office holder, executive officer, or employee.

31 Revocation of delegations

• A delegation under clause 28 may be revoked at will by—

  • (a) resolution of the board and written notice to the delegate; or

  • (b) any other method provided for in the delegation.

Accountability

32 Reporting and audit

• (1) The board must prepare an annual report.

  (2) The report—

  • (a) must include the dates and times of the board's meetings in the financial year; and

  • (b) must include a summary of the board's activities in the financial year; and

  • (c) may include anything else that the board wants to put in it.

  (3) The board must publish the report and provide copies to the Auckland Council and the selection body.

  (4) The obligations of the board under the Public Finance Act 1989 are the responsibility of the members of the board.

  (5) The board is a public entity as defined in section 5 of the Public Audit Act 2001.

Servicing

33 Board's secretariat

• (1) The board must have a secretariat to support it in carrying out its purpose.

  (2) The staff of the secretariat must be employed by the Auckland Council on terms and conditions no less favourable than those of staff employed by the Council to do jobs equivalent to those done by the staff of the secretariat.

  (3) The board and the Auckland Council must agree on the person to be appointed as the secretariat's executive officer.

  (4) The board instructs and directs the executive officer and the other staff of the secretariat in their roles.

Disputes

34 Resolution of disputes

• (1) This clause applies to the following disputes, if the dispute cannot be resolved within a reasonable time:

  • (a) a dispute between the board and the selection body:

  • (b) a dispute between members of the board:

  • (c) a dispute between members of the selection body.

  (2) Depending on the parties to the dispute, the board and the selection body or the board or the selection body must try in good faith to agree on a process for resolving the dispute.

  (3) Processes that the board and the selection body or the board or the selection body may consider include, but are not limited to,—

  • (a) further negotiations:

  • (b) mediation:

  • (c) determination of the dispute by an independent expert.

  (4) If the board and the selection body or the board or the selection body remain unable to resolve the dispute,—

  • (a) the Minister of Māori Affairs must—

    • (i) give the dispute proper consideration, having due regard to the board's purpose and the principles of natural justice; and

    • (ii) take steps to resolve the dispute; and

  • (b) the board and the selection body or the board or the selection body must co-operate with the Minister.