Auckland Transport (Authority) Bill - Independent & Powerful

This blog explores the Local Government (Auckland Law Reform) Bill (introduced to NZ Parliament on Friday 10th December), and in particular what it says about transport, and the Auckland Transport Authority – which we now learn here is to be known as “Auckland Transport”. In this blog I look at a few aspects of the Auckland Transport entity: what it is and how it is different from other CCOs; its powers and functions; how it will be funded

What Auckland Transport is, and how it differs from other CCOs

According to the Bill, this entity is “a body corporate with perpetual sucession” and “a council controlled organisation of the Auckland Council”.

But – and it’s a big “but” – various Local Government Act provisions relating to CCOs will not apply to Auckland Transport.

For example, Auckland Transport, does not have to comply with ss. 59, 60, 64 and 74 of the LGA. This means:

a) (s 59 does NOT apply) Therefore the principal objective of Auckland Transport is NOT to achieve the objectives of its shareholders (in this case Auckland Council), as specified in the statement of intent; and it is NOT to exhibit a sense of social and environmental responsibility by having regard to the interests of the community in which it operates….; (My interpretation: Auckland Transport does NOT have to deliver the objectives of Auckland Council – which might be embodied in annual plans, policy statements, spatial plans.)
(b) (s 60 does NOT apply) Therefore decisions relating to the operation of Auckland Transport DON’T have to be made in accordance its statement of intent; and its constitution…; (My interpretation: Even if Auckland Transport has a Statement of Intent – or Constitution – its Board can make decisions that are not consistent.)
(c) (s 64 does NOT apply) Therefore Auckland Transport DOESN’T have to have a statement of intent that complies with the detailed information requirements set out in clause 9 of schedule 8 of the Local Government Act…; (My interpretation: The SOI requirements for Auckland Transport are totally undefined. It appears to be able to decide its own direction, with little reference to Auckland Council. Strangely, however, s34 of the Bill requires that Auckland Transport “must have a statement of intent that complies with the LGA" – so – I don’t know. Can’t have it both ways…)
(d) (s 74 does NOT apply) Therefore the usual official information provisions of the Local Government Official Information and Meetings Act DON’T apply to Auckland Transport. (My interpretation: Auckland Transport will NOT be publicly accountable in the same way other CCO’s have been. However this is qualified by a specific provision which DOES make Auckland Transport subject to parts of LGOIMA.)

Auckland Transport Powers and Functions

The “status and powers” of Auckland Transport are untrammelled. Auckland Transport: “has full capacity to carry on or undertake any activity or business, do any act, or enter into any transaction; and …. full rights, powers and privileges … subject to the Act. NB: Auckland Transport can make bylaws – separate from Auckland Council.

Interestingly, in exercising its functions, Auckland Transport can act: “as if it were a regional council, territorial authority, or other statutory body, as the case may be…”. On the face of it, Auckland Council has tiny number of transport duties. These include: management of off-street parking facilities owned by the Council! Interestingly, Auckland Transport can – if it decides to – delegate duties or responsibilities to Auckland Council (s33, schedule 2). This delegation can also be to 1 or more Local Boards. (My interpretation: this provision – almost more than any other – underlines the hierarchy here. Auckland Transport has authority over Auckland Council, and very considerable independence from it.)

One of the key functions of Auckland Transport is to “prepare the regional land transport programme for Auckland in accordance with the Land Transport Management Act 2003…”.

This is the area – as former chair of Auckland’s Regional Land Transport Committee, tasked with establishing Auckland’s Regional Land Transport Strategy – that I wanted understand. Took a little time to unwind. Not a happy experience….

Presently, the LTMA 2003 says this:

15 Core requirements of regional land transport programmes
prepared by ARTA
ARTA must, in preparing an Auckland regional land transport
programme,—
(a) be satisfied that the Auckland regional land transport
programme—
(i) contributes to the aim of achieving an affordable,
integrated, safe, responsive, and sustainable land
transport system; and
(ii) contributes to each of the following:
(A) assisting economic development:
(B) assisting safety and personal security:
(C) improving access and mobility:
(D) protecting and promoting public health:
(E) ensuring environmental sustainability;
and
(iii) is consistent with the relevant GPS; and
(b) give effect to the matters in the Auckland regional land
transport strategy, unless it is required to do otherwise
by operational considerations that affect the sequencing
and timing of activities, the funding available to it, or its
statutory functions, duties, or powers; and
(c) take into account any—
(i) national land transport strategy; and
(ii) national energy efficiency and conservation strategy;
and
(iii) relevant national policy statement and any relevant
regional policy statements or plans that are
for the time being in force under the Resource
Management Act 1991; and
(iv) relevant regional public transport plan; and
(v) likely funding from any source.

But this Bill – this law reform bill – changes this to:

15 Core requirements of regional land transport programmes
prepared by Auckland Transport
Auckland Transport must, in preparing an Auckland regional land transport
programme,—
(a) be satisfied that the Auckland regional land transport
programme—
(i) contributes to the aim of achieving an affordable,
integrated, safe, responsive, and sustainable land
transport system; and
(ii) contributes to each of the following:
(A) assisting economic development:
(B) assisting safety and personal security:
(C) improving access and mobility:
(D) protecting and promoting public health:
(E) ensuring environmental sustainability;
and
(iii) is consistent with the relevant GPS and the Auckland regional transport strategy; and

xxxxx

(c) take into account any—
(i) national land transport strategy; and
(ii) national energy efficiency and conservation strategy;
and
(iii) relevant national policy statement and any relevant
regional policy statements or plans that are
for the time being in force under the Resource
Management Act 1991; and
(iv) relevant regional public transport plan; and
(v) likely funding from any source.

You'll see that s15(b) has gone. The key thing here is the loss of the power or influence of the Auckland Regional Land Transport Strategy to drive transport investment in Auckland. Previously, ARTA was required to “give effect to the RLTS”. Under these changes, the RLTS and the GPS are on the same policy level. Who knows how the Board of Auckland Transport will resolve any differences?

I think I know.

There is enough in what we see above to suggest that the Board of Auckland Transport has a great deal of latitude.

How Auckland Transport will be funded

The gap that remains unfilled – and one we all await with interest – is how Auckland Transport’s programme will be funded. What mix of Government and Local Government money will be required. The Bill makes some mention of developer levies – and this is good for regional transport infrastructure. More analysis required to see how that all works.

But – in terms of the principle that rating follows representation – it is hard to see a good strong link between the election platforms of would-be Auckland Councillors (in terms of rates and what should be funded), and the activities and funding requirements of Auckland Transport.

What does it all mean?

Auckland Transport is not your usual "Council Controlled Organisation". Because there are so many exceptions (noted above), and exemptions (noted above), and freedoms (noted above), really, Auckland Transport is a Crown Entity.

It is a Government Controlled Organisation.

If Auckland Transport is established as proposed, Auckland will lose something significant. It will lose its ability to determine its transport future. Auckland Council will become little more than an entity set up to extract rate revenues from Auckland ratepayers, and these revenues will then be directed to Auckland transport investments that central government considers are priorities in delivering its objectives, and not Auckland Council objectives.