A message I sent to Waipa Council as a private citizen and resident of the district has caused headlines across the country. You may or may not agree with the message (and I am not defending it here) but the follow-up will give you a deep insight into how the council machine operates, and why it is failing the community by excessive spending and poor service. You will also see just how much danger free speech is in, along with the hopelessness for ratepayers (all of whom are taxpayers) to try to change the system.
The message gained attention solely because I am also a Hamilton councillor. Other anonymous people used rude words and some have gone much further with threats of violence, yet remain hidden from public view. My role was not included in my message, which was sent from my private address, after hours, using my personal computer directly to a Waipa website, about an issue affecting my private property.
Where is the line between my private identity and my public persona?
The line is in fact clearly defined. Council staff give elected representatives advice on drawing the line and maintaining separation. There is a code of conduct policy and a council equipment policy. Most councillors and parliamentarians have strong online social-media presences, where they publish material related to their role and use council computers to do so, while having separate personal accounts maintained from private computers. The Official Information Act further clarifies what are public vs private records. There are also unwritten conventions; for instance, younger family members of politicians are considered off-limits to journalists. And Hamilton Council has no right to investigate my personal finances as long as any conflict of interest is properly registered.
The simple fact is that is I acted in a private capacity, protected by the Bill of Rights section 14 Freedom of Expression. Jonathan Ayling of The Free Speech Union disagrees with my words but confirmed my rights.
However, I have certainly upset some people in the council machine. I have upset them many times before. My background in architectural design has brought me into conflict with several councils over resource consents and building consents. Anyone in the property sector will understand the nightmare bureaucracy that has crippled the industry and which is the real cause of the housing affordability crisis. It is good to see that Minister Chris Bishop has finally learned this as well. I am a technical expert in this area and have been right every time. Councils don’t like losing. Staff know that accountability is very rare indeed and the council has deep pockets if they get it wrong. I have dozens of incidents documented, but one in particular stands out.
After 18 months, the Matamata-Piako Council machine finally admitted I was right about a difference of interpretation over a town planning issue. The council got legal advice nine months earlier confirming I was right. In between, the council staff organised a raid with six police officers using a fraudulently obtained warrant (I got a copy via the Official Information Act) to attack a 70-year-old tenant undergoing chemotherapy for cancer in an attempt to intimidate him into leaving my property. He was knocked to the ground and one of them stood on his head. The council machine admitted it got the raid wrong, but described it as a “minor error”.
It is clear that the machine wants to get rid of this troublemaker. My Waipa message has presented them with an opportunity. So far 24 complaints have been made, and a process under the code of conduct has commenced. The decision that I am wrong was made back in March – that is when the message was sent! The story is breaking now because the machine is ready to process me.
Last week, I received a notice that a complaint was made against me. Hardly surprising. This is stage one. This week, I received notice of the outcome of the preliminary assessment (stage two), whereby the machine will determine (stage three) that the case is to be referred to an ‘independent’ investigator (stage four) who happens to have been hand-picked by the machine. An hour later, a press statement was released to ensure the public could assume my guilt without any chance for me to respond.
The Bill of Rights section 27 Right to Justice requires any public authority making any determination (such as the determination to proceed from stage two to stage three) to be carried out in accordance with the principles of natural justice. This is so important that I wrote to the council last week reminding the machine of the obligation, because none of the dozens of complaints I have made about councils has ever been treated with due process. Who polices the police? Especially when the council is judge, jury, and executioner for complaints about itself.
Let’s start with the basics. I have yet to be given a copy of the complaints. I don’t need names of complainants, but to be this far through without me even knowing what I am charged with is a breach of natural justice.
The first action the preliminary assessment must make is to check the validity of complaints. There is no transparency about this, which is another breach. The complaints process requires any complaint to reference the specific clauses in the code of conduct. There is an abbreviated summary of the complaints, in which all but one fails to comply with this requirement. The assessment notes: “Most complaints referred to clauses 3 and 5,” but this contradicts the summary and is also an admission that at least some didn’t comply. There is no mention of any dismissal of the invalid ones.
I am also aware of one complaint from a fake email address. Nothing has been done to check any of them. Are any real?
This fundamental failure of due process means I am not prepared to accept that any complaint actually exists in law at the current time. Not that this will have any impact on the machine or their press releases.
The most important right of natural justice is the right to present my side, even in a preliminary assessment. I have not had any opportunity to participate in this stage-two process, yet a determination to proceed has been made.
This stage is not expected to consider my full evidence, but, in order to determine whether a material breach could be established (which is the stated purpose of stage two), there are two things that have to be answered and which I wish to give evidence on.
Firstly, the allegation in all the complaints is that my words were offensive. You may agree that they were, but you also have to agree that offence is subjective. What is the definition of offence? Without this, there is no way to conclude anything. How does the right to Freedom of Expression limit the right to take offence?
Secondly, whether my actions as a private person are even within the jurisdiction of the Code of Conduct. If not, then the whole process ends here.
I explain the clear line above. However, the preliminary assessment provides a counter legal opinion. It is a simple fact that the council machine pays consultants to give the council machine the answers or opinions that suit the council machine. I am sure this was decided in March. The opinion, couched in deniable words such as “our preliminary view”, argues that an elected member taking part in a process of a public body…cannot be said to be acting only in their personal capacity. This is just not true. The processes of a public body do not magically change the status of a participant. It certainly does not apply to elected members of a different public body!
Consider the triennial news piece-to-camera of the prime minister casting a vote in an election. That vote is undoubtedly a vote by a person, not a position with a vested interest in the outcome.
This raises serious questions about the competency and independence of the process. The machine is prepared to be dishonest, misleading, manipulative of public opinion, and obstructionist to basic legal rights. I have no confidence in the remaining stages and I sincerely doubt my freedom of speech will survive this without public support.
When you become aware that this is how the council machine deals with such trivial issues as mere words, you understand how people get crushed on more significant issues, and, dare I say it, why my message was sent. To find out more about that, read this article on The BFD.
