Friday, January 3, 2014

Auckland Rate Payers: Had a gutsful of Mayor Brown?

Like most of the country I've watched the Brown debacle unfold. When the salacious details of his affair were released I didn't bother reading them as it seemed some were more interested in the sordid details rather than the fact that Brown's character had been 'outed.' What came next was a classic move by Brown, he fessed up. In doing so he flattened the attack against him and so it was revealed that the bombshell attack had been less effective than leaks of details that Brown would have either had to denied or swallowed the bullet and fronted with a public admission. At that point Brown looked stronger and resilient than otherwise might have been the case as war raged between the left and right. I was surprised by his tenacity, which on reflection I shouldn't have been because the Mayor that had built his reputation on honesty, social conscience and being a Mayor 'for all of Auckland' - in the process duping the public, was a master manipulator to the point it became obvious that even his own family don't know the 'real' Mayor Brown.

That in itself is disturbing, but for parents and ratepayers the issues were different, it was his capacity to run the city and in the polls had least he still mandate. I mention parents because Brown for years has fronted school assemblies with his own kind of 'hip' and the revelation that there was 'another' Mayor Brown who didn't have normal family values must have been disturbing to parents - he was no longer a role model. So it seemed he had weathered the storm, that is until an external audit of conduct in respect of 'benefits' he had received showed that he'd compromised himself and Council by some of the 'gifts' or 'upgrades' to accommodation he received. It was then that I believe Brown made a fatal mistake, it was as though his political instinct was lost, he didn't pre-empt the release of the report (he knew the details and had argued for parts of the report to be removed under the possibility of pursuing legal action.) Hard to know if he was worn down, taking the wrong advice or had simply lost sight of the fact he was answerable to the public.

Whichever it was, and it appears to me likely to have at least in part been that he was no longer 'answerable' because he couldn't be sacked. he had misread the reaction. Suddenly both sides of the political spectrum had their fill of Brown. On the issue of his being sacked early on there had been revelations that Rodney Hide was responsible for not including in the setting up of the Super City legislation that could sack the Mayor. The claim that Rodney Hide was somehow responsible is ludicrous. Hide himself is a seasoned politician well versed with the procedure that sees politicians resign from office even when they can not be forced to do so. I think Hide would have had the general expectation that a politician was taken at his or her word and when that was found to of no currency he or she was gone. That is the public expectation as well for many. Many who voted for Brown will feel they were deceived by the way Brown sold himself compared to exactly who he was. Others that decided not to vote if faced with opportunity again would possibly be so moved by Brown's 'thick skin' would vote against him.

This however is not the dead end street it seems. I don't know if there is little appreciation of the Local Body Act 2001 but on reading it one finds a 'consequence' that can be tested in the District Court as to the conduct of a candidate.

93 Petition for inquiry
  • (1) Any candidate or any 10 electors with a complaint about the conduct of an election or poll may file a petition in the District Court demanding—
    • (a) an inquiry into the conduct of the election or poll; or
    • (b) an inquiry into the conduct of a candidate or any other person at the election or poll.
    (2) A petition under subsection (1) must—
    • (a) be filed within 21 days after public notice is given declaring the result or, as the case may be, the amended result of the election or poll; and
    • (b) be filed in the District Court to which the voting documents for the election or poll to be inquired into were forwarded; and
    • (c) be accompanied by the prescribed deposit; and
    • (d) specify the specific grounds on which the complaint is based; and
    • (e) be heard and determined by a District Court Judge.
    (3) If a petition under subsection (1) is filed at a District Court, the Registrar of that court must immediately send a copy of the petition to the electoral officer.
    Compare: 1976 No 144 s 99

As reading above shows 10 rate-payers may apply by Petition to the District Court to effectively overturn an election result within 21 days of an election being held. That 21 days may seem restrictive on first reading until it is considered that the 21 days limit can be read as specific, in Brown's case, to conduct of a candidate. The Act is silent on what may happen after that 21 day period has passed but it could never be successfully argued that if a candidate had got 'away with an irregularity' during the relevant period that he or she was immune from action when, and if, any material information as to an irregularity after the 21 day period arose.

The Local Body Act may have been superseded in part by Legislation empowered for the Super City. Read here the Legislation that appears to have been the responsibility of Rodney Hide to draft for Parliament. Although there was a transitional period with the Legislation there can't be any serious  argument that it was ever intended by Hide or Parliament to create a vacuum for which any electoral misconduct could escape after a mandatory period.

In The Act it is made clear that a DC Judge has all the Powers of his Office when ruling on a petition from 10 or more ratepayers citing an 'irregularity' they believe may have affected an election result. The following are the steps a Judge can take.

98 Result of inquiry
  • The District Court Judge must determine whether,—
    • (a) as a result of an irregularity that in the Judge's opinion materially affected the result of the election or poll, the election or poll is void:
    • (b) in the case of an election, the candidate whose election is complained of, or any and which other candidate, was elected:
    • (c) in the case of a poll, any and which proposal was carried.
    Compare: 1976 No 144 s 104
99 Election or poll not void by reason of certain irregularities
  • (1) If subsection (2) applies, an election or poll must not be declared void on the ground of—
    • (a) any irregularity in any of the proceedings preliminary to the voting; or
    • (b) any failure to hold the election or poll at any place appointed for holding the election or poll; or
    • (c) a failure to comply with the directions contained in this Act or any regulations made under this Act as to the conduct of the election or poll or the counting of the votes; or
    • (d) by any mistake in the use of prescribed forms.
    (2) This subsection applies if the District Court Judge conducting an inquiry into the conduct of an election or poll, having taken account of whether the election or poll was conducted in accordance with the principles set out in section 4, considers that the irregularity, failure, or mistake referred to in subsection (1) did not affect the result of the election or poll.
    Compare: 1976 No 144 s 120
'irregularity' seems to be the key word here, and if a Court was able to confirm that deliberately presenting a false persona to voters in order to win their votes was 'regular' or not. Then of course whether that affected the election. Brown would be in a compromised position of needing to argue that Aucklanders would have still voted for him despite knowing the way in which he had already compromised the office of the Mayor. Of course if he didn't feel he was compromised by his own conduct then there is the question as to his 'honesty' in not revealing something he was confident wouldn't harm his reputation.
Many Aucklanders have been 'sold' the idea that Brown cannot be made to go. However, it appears to be in the hands of ratepayers to question the method by which he became Mayor and whether that was honest and consistent with the reputation he carefully cultivated. I think Brown's conduct at the election was fraudulent, I think is reputation is shattered, I don't think he has a voter mandate - he may have had but he lost that, if not when details of his affair came out, then when it was revealed that he had compromised his own office with accepting 'undisclosed' gifts. Brown has said that there needs to be clarity around the 'rules' regarding gifts. I agree, and that there also needs to be clarity around misleading the voting public and ratepayers at election time. Brown isn't the Mayor of 'all of Auckland' confidence is lost in him. If a group of rate-payers decide to test for any 'irregularities
 in Brown's election we can assume Brown will confidently support that - if he is an honest man with the support of his electorate. Any bets on that one?

Wednesday, January 1, 2014

Aunt Fanny finally gets to ask David Bain some questions.

Aunty Fanny: Well David, I know that you are probably not as conversant with internet as myself so I should tell you that I have considerable savvy with internet use even though I'm barely five foot three and an old coot with farting problems. Despite not being a big internet user I'm going to ask you directly what have you heard about my considerable internet exploits? Speak clearly and slowly into my ear horn if you don't mind.

DB: Good afternoon Fanny. I am aware that since you brought a second hand computer in 2009 you've managed to get yourself, Kent Parker, Vic Purkiss, The Herald, Trade Me and Fairfax sued and that you've been 'smart enough' to do a runner on each occasion. That's pretty formidable.

Aunt Fanny: It hasn't been easy I can tell you that. Kent Parker threatened to enjoin me in the proceedings because he said it was as the result of my big mouth and not having a clue as to what I'm talking about which resulted in he and Vic getting sued. Quick as a flash I said a mad man can't be enjoined if he doesn't realise he's got a big mouth and doesn't know what the hell the he's talking about. That got him thinking. A slow process I'll admit. So I told him I was resigning as a site administrator. I promised to fully support him financially in his efforts to clear his name. He swallowed that. The truth is David that I was going to send in that $5 but my wife wouldn't let me. She even threatened to cut my cords, she's never done that before so I didn't know what to expect. What with my farting problem and didn't really want me cords cut as well. But don't try getting me off the subject David. It can't be done. Have you heard of my 'relationship' with the Minister of Justice.

DB: I haven't heard much about that except that I did read that you offered to 'peer review' Ian Binnie's report and when Ms Collins finally stopped laughing she told you ever she ever needs a bum boy's office report reviewed she'd be in contact.

Aunt Fanny: Don't believe everything you hear David.

DB: I actually read it.

Aunt Fanny: Look David, I had to say something meaningful when it came out that you'd been strip searched the day you lost you family, and that there were no injuries to your chest recorded. I really got egg on my fact over that one.

DB: Yes, there's still some stuck in your ear horn and eyebrows.

Aunt Fanny: I suppose you know that when I found out that your father had blood smears on his palms consistent with having been in contact with blood that morning that I said you put it there. I was desperate then as well. Really, all I have been able to do is misquote people and tell lies since I found out what a dick I've made of myself. I sort of hope that people don't notice that anything that I might be able to use against you I claim to be the truth and anything I can't use, to be lies.

DB: I've heard that yes.

Aunty Fanny: Well, it's sort of true that I was a bum boy in the office of a car yard. But once I got a second hand computer it was a big chance for me because people can't tell on the internet that I'm a dwarf with egg stuck in my eye brows and in my ear horn. But then I made my first mistake when I tried to explain how you dad might have shown Laniet how to do some personal things and after that nos starting saying that I was a fiddler on the roof so I complained to everybody in NZ about it, even the police. The problem was that it was in writing. I was sort of stuck so I started talking about what Denise Laney might have said, about dog shit and well ..... sex with goats. You don't think I've got a problem do you David?

DB: No, it's probably 99% of the population that has a problem but maybe not you.

Aunt Fanny: Cheers for that, happy new year.

DB: Right you are.