Election candidate takes council to court over controversial bill

6:13 pm on 6 May 2022

Election candidate Robert Lee is taking Rotorua Lakes Council to court for a judicial review of its November decision to pursue a bill to change electoral rules for the district.

Rotorua Lakes Council candidate Robert Lee.

Rotorua Lakes Council candidate Robert Lee Photo: Ben Fraser / Rotorua Daily Post

Rotorua Lakes Council chief executive Geoff Williams said in a statement today [May 6] it would strongly oppose Lee's case, calling it "misconceived" and "containing inaccurate allegations".

Lee, who announced his councillor candidacy in December, lodged papers with the High Court last Friday. [29apr]

He has applied for a judicial review of two November 19 council decisions. The first was to agree on an ideal representation model for Rotorua and the second instructed the council's chief executive to pursue it via a local bill.

This became the Rotorua District Council (Representation Arrangements) Bill, which would allow three general ward seats, three Māori ward seats and four at-large seats on the council - a model not expressly provided for under the Local Electoral Act. The council paused the bill on April 28.

In his court application, Lee set out six causes of action for the review: predetermination, bias, improper purpose, lack of consultation, unjustified limitation on rights and freedom and taking irrelevant considerations into account.

Lee's statement of claim alleges the bill was "procedurally unfair" and "illegal".

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The document alleges the "improper purpose" of the bill was to "rig or gerrymander the election" and the November decision to pursue it "did not follow the statutory principles of consultation".

His court documents also claim the council decision was "unlawful" because the bill that followed was an "unjustified limitation on our rights and freedoms", citing the Attorney General David Parker's report finding the bill in conflict with the Bill of Rights Act.

His filings also claimed the November decision was procedurally unfair as it was "predetermined by the mayor by allowing Councillor [Mercia] Yates' substantive resolution and ruling that councillors were not permitted to consider any other options / models / amendments".

His court documents claimed that some councillors were, in his opinion, "biased".

The documents said voter parity, the Rotorua Township (Fenton) Agreement and Te Tiriti o Waitangi were "irrelevant considerations" in the decision to pursue the bill.

Voter "parity" is the term the council often uses to refer to the concept of allowing general and Māori roll voters the same number of available votes.

In court documents, he also claimed for costs and disbursements incurred.

In a minute released after a teleconference today [May 6], Justice Mark Woolford set a timetable for the proceeding, leading to a one-day hearing on August 4. The council's statement of defence is due on May 20.

The judge also directed Lee to serve the Attorney-General, Ngāti Whakaue and Te Arawa to invite them to participate in the proceedings as interested parties.

Speaking to Local Democracy Reporting, Lee said, in his view, the council's decision to pause the bill was "meaningless".

Lee said there would not be a need for a judicial review if the bill had been withdrawn by the council last week.

Lee, a software developer, said he had drafted the legal paperwork himself, without legal counsel. The application cost him $540.

Rotorua Residents and Ratepayers - of which he is on the board - was raising money for the action, though Lee was acting as a private citizen.

He said money raised was for expenses such as if he lost the case and had to pay costs. He intended to continue representing himself.

He understood the case would come at a cost to the council but, in his opinion, it had "already spent a fortune" - $74,000 - pursuing the bill.

"This is seeking an end to this kind of expense."

He said compensation for a breach of the Bill of Rights Act - one of the costs he sought in court documents - would most likely come to him if awarded.

He said the action was not about publicity for his political campaign.

Last Friday, in a statement, Rotorua Residents and Ratepayers chairman and district councillor Reynold Macpherson said the group supported Lee's call for a judicial review into the November 19 decision.

His statement said despite the bill's pause it could still be pushed through Parliament under urgency.

An Office of the Clerk spokesperson said it would be unusual for a local bill to be dealt with under urgency.

Urgency can be moved only by a Minister, and so almost always is used only for government business.

Urgency for non-Government bills was very rare.

Sometimes special arrangements for the prompt consideration of bills can be made through Parliament's Business Committee.

The committee has representatives from all elected parties and requires broad support across parties before it agrees to any such arrangements.

Rotorua mayor Steve Chadwick told Local Democracy Reporting on Monday Lee's application to the High Court was, in her view, "a distraction".

Rotorua Mayor Steve Chadwick.

Rotorua mayor Steve Chadwick Photo: Laura Smith / Rotorua Daily Post

"People in our community want certainty about how they will be voting in this year's local elections and because of the request to pause the bill process, I believe it will be the model determined by the Local Government Commission for the 2022 elections."

In today's statement, Williams also said the council will also seek costs in relation to the proceedings.

"As the case is now before the court, it is not appropriate to provide any detailed comment except to say that we consider it to be misconceived and containing inaccurate allegations and it will be strongly opposed."

He said the decision to pause the bill process would enable time for the council and Department of Internal Affairs to report back to the select committee on policy issues raised in the Attorney-General's report on the Bill of Rights.

"This pause means the bill cannot now be passed in time for the October 2022 local elections so the Local Government Commission determination will be the representation model for Rotorua for this year's local election."

Lee initially also applied for an urgent interim injunction over the bill but withdrew it after the council confirmed the commission-approved model would be used at this year's election.

Local Democracy Reporting is Public Interest Journalism funded through NZ On Air

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