During the discussions about this issue there has been a lot of theories, and a lot of claims. Unfortunately there has been a lack of objectivity, and certainly an almost total lack of any assessment of how the laws of New Zealand apply to the situation.
Tikanga and other groups’ custom
Councillor Paniora is clearly driven by her tikanga and her right to perform karakia. In her own home in an environment where tikanga is accepted there is no issue. However, does Councillor Paniora believe that she has the right to insist on performing a karakia, say before a meal, in a friend’s home, where the friend does not share her involvement in tikanga?
In other words does the assumed right to perform a karakia override the rights of all other people who may object to it being performed in their own environment? Putting the boot on the other foot, would Councillor Paniora think it appropriate if a visitor to her Marae objected to men and women being separately seated, as required by tikanga?
Should we not respect the customs and traditions of the place we are in? When in Rome, do as the Romans do? Christian churches have their own traditions and procedures, as do most religions. The courts of law have procedures which must be followed. Parliament is the same. And that leads us to local authorities. Local authorities are set up through an act of Parliament to represent all the people of their district. The rules pertaining to the operations of local authority are legally binding. There is also a set of procedures laid down in legislation which the local authority is legally bound to comply with. It is called Standing Orders. It sets out the rules which must be followed in the conduct of the local authority’s business.
The rule of law
Article 3 of the Treaty states that once the Treaty was signed all residents of New Zealand became British citizens with equal rights. That was a transitional provision for those who were alive in 1840. Since that date all people born in New Zealand have become British citizens, and later New Zealand citizens, by the fact of birth. They all have the same rights and they all have the same obligations, irrespective or race or any other differentiating factor. They also have responsibilities, one of which is to obey the law. One of the identifying factors of a civilised country is that it is based on the rule of law so that all citizens are safe and their rights are protected.
Elected members declarations
Kaipara District Council, like all other councils in New Zealand, is bound by the rule of law. Its principal governing legislation is the Local Government Act 2002, which sets out the role, powers and responsibilities of local authorities (councils), along with those of its elected members. The Act also mandates the processes and procedure of the council. Schedule 7 of the Act sets out the role and responsibilities of the elected members of council (the mayor and councillors). Clause 14 of the Schedule requires all newly elected members to make an oral and a written declaration in the following form:
“I, ……….., declare that I will faithfully and impartially, and according to the best of my skill and judgment, execute and perform, in the best interests of [region or district], the powers, authorities, and duties vested in, or imposed upon, me as [mayor or chairperson or member] of the [local authority] by virtue of the Local Government Act 2002, the Local Government Official Information and Meetings Act 1987, or any other Act.
In other words each new member undertakes to comply with the rule of law as it applies to their council and, in so doing, to act in the best interest of the community at large.
The last part is important. Although councillors are elected for a ward which constitutes a part of an electoral district, once elected their role is to act for the benefit of all the people in the district.
Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2022
This amendment act made provision for compulsory Maori wards in local authorities. Although a member is elected in a Maori Ward the legal obligations under the LGA 2002 are exactly the same. A Maori Ward member, like Councillor Paniora, makes the same declaration as all the other members and has the same obligations as all the other members, namely to act faithfully and impartially in the best interests of the communities of the district.
Summary of the role of elected members
It goes without saying that in a democratic system such as ours, that a member cannot favour or act in the best interests of any group based on race, religion or any other distinguishing factor. In addition, no member has any special rights over and above the rights of other members. All members are New Zealand Citizens by birth or naturalisation and have equal rights under our constitution.
It also needs to be emphasised that a councillor is an elected representative of the people of the district. As a representative, the councillor must act in the best interests of the community and not pursue a personal agenda which conflicts with the statutory obligations of a councillor.
Standing Orders in general
16(2) A constable,
or an officer or employee of a local authority, may, at the request of the
chairperson, remove or exclude a member from a meeting if that member is
required to leave the meeting by a ruling made under the standing orders and
that member—
(a) refuses or fails to leave the meeting; or
(b) having left the meeting, attempts to re-enter the meeting without the
permission of the chairperson.
Kaipara District Council’s standing orders
KDC Standing Orders 2020.pdf (kaipara.govt.nz)
The current Standing Orders taken form the Local Government New Zealand (LGNZ) template were adopted by the Kaipara District Council on 26 February 2020.
Purpose of Standing Orders
The Preface to the Standing Orders states:
Standing orders contain rules for the conduct of the proceedings of local authorities, committees, subcommittees and subordinate decision-making bodies, and local and community boards. Their purpose is to enable local authorities to exercise their decision-making responsibilities in a transparent, inclusive and lawful manner. In doing so the application of standing orders contributes to greater public confidence in the quality of local governance and democracy in general.
Legal status
The Preface to the Standing Orders states:
These standing orders have been designed specifically for local authorities, their committees, subcommittees and subordinate decision-making bodies, and local and community boards. They fulfil the requirements of the Local Government Act 2002 and the Local Government Official Information and Meetings Act 1987 with regard to the conduct of meetings.
It is mandatory that councils adopt standing order for the conduct of their meetings and the meetings of any subordinate bodies, such as committees and subcommittees (see cl. 27 Schedule 7 of the Local Government Act 2002).
Rulings on interpretation
The Preface to the Standing Orders states:
For clarity’s sake whenever a question about the interpretation or application of these standing orders is raised, particularly where a matter might not be directly provided for, it is the responsibility of the Chairperson of each meeting to make a ruling.
Finally the Preface states:
All members of a local authority must abide by standing orders.
Standing orders are designed to give effect to the principles of good governance including:
· Conduct its business in an open, transparent and democratically accountable manner.
· Make itself aware of, and have regard to, the views of all of its communities;
Relevant Standing Orders
3.3 Members must obey standing orders
All members of the local authority, including members of committees and subcommittees, must obey these standing orders. Local boards and community boards which have adopted these standing orders must also comply with them.
cl. 16(1) Schedule 7, LGA 2002.
4.3 LanguageA member may address a meeting in English, te reo Māori or New Zealand Sign Language. A Chairperson may require that a speech is translated and printed in English or te reo Māori. If a member intends to address the meeting in New Zealand Sign Language, or in te reo Māori when the normal business of the meeting is conducted in English, they must give prior notice to the Chairperson not less than 2 working days before the meeting.
Note: The new 2022 Local Government New Zealand (LGNZ) standing orders template (not adopted by the KDC) does not change this standing order.
Standing order 10 is the most relevant standing order for karakia.
10. Opening and closing
Local authorities, local boards and community boards may, at the start of a meeting, choose to recognise the civic importance of the occasion through some form of reflection. This could be an expression of community values, a reminder of the contribution of members who have gone before or a formal welcome, such as a mihi whakatau.
Options for opening a meeting could include a karakia timitanga, mihi whakatau, or powhiri as well as a karakia whakamutunga to close a meeting where appropriate.
Note that the new LGNZ 2022 standing order template includes many references to obligations under the Treaty of Waitangi. However, it includes this recommendation:
SO 10: Opening and closing your meeting // Te whakatuwhera me te whakakapi i tō huiThere is no obligation on a local authority to start their meeting with any reflection or ceremony, however, it is an increasingly popular approach.
An opening and closing is optional. Mayor Jepson made a decision that the KDC would be a secular council, that there would be no prayer, any form of reflection, or karakia at the opening and closing of a council meeting. There was some dispute as to whether the mayor could make that decision himself. The subsequent compromise arrangement, agreed to by all members, therefore became the final decision.
Councillor Paniora’s position
The Council’s standing orders, taken from the Local Government New Zealand template, are quite clear. The Council had an option whether to have an opening or not. The mayor made a decision not to have an opening of any sort. Subsequently all councillors agreed to the compromise arrangement. Accordingly the process was fully compliant with the requirements of the Local Government Act 2002 and with standing orders.
It appears that Councillor Paniora objected to the mayor's original decision, accepted the compromise agreement reached by all members including herself, and is now reneging of that compromise agreement. Her consent was given, and the process was in accordance with the Council's standing orders and the law.
Councillor Paniora’s complaint in respect of the process
Councillor Paniora has also made public her complaints about the way in which she was treated by Mayor Jepson in dealing with the karakia issue.
One needs to remember that the proceedings in council are carried out very formally in accordance with a set of rules – the standing orders – which set out in some detail when and how members are allowed to speak. These rules apply to all members. The most important rules, perhaps, relate to the role of the chairperson, usually the mayor:
14.4 Chairperson’s rulings
The Chairperson will decide all procedural questions where insufficient provision is made by these standing orders and with regard to all points of order. Any refusal to obey a Chairperson’s ruling or direction constitutes contempt.
20.1 Calling to orderWhen the Chairperson calls members to order they must be seated and stop speaking. If the members fail to do so, the Chairperson may direct that they should leave the meeting immediately for a specified time.
Mayor Jepson made the ruling that the decision on the opening reflection had been made. Councillor Paniora continued to challenge that ruling. She did not make a point of order, presumably because she was a new member, but Mayor Jepson made it clear that he had made a ruling on the issue.
If a member continues to argue with the chairperson they can be held to be in contempt and disorderly:
In such cases the member may be moved from the meeting (SO 20.6)
Next: 3. Arguments to support the karakia
