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Local Body Election Challenge Decision Due Wed.

Judge McElrea will give his decision on the Petition of Inquiry into
the Auckland Local Body Election in the Auckland District Court
this Wednesday November 28 at 3.00pm.

It appears that a challenge of this sort has not been made before.

As background, the brief of evidence which outlines WPG's case is
attached to this email.

Cheers!

Penny Bright
Media Spokesperson
Water Pressure Group (Auckland)
Ph: (09) 846 9825


IN THE DISTRICT COURT
AT AUCKLAND
NP No. 650/01

UNDER The Local Electoral Act 2001

IN THE MATTER OF A Petition for Inquiry into an election for the Auckland City Council held on the 13th October 2001 and breaches of the said Act.

Brief of Evidence of Penny Bright in support of Petition of Inquiry


Presented for filing by: Graeme Minchin
Barrister acting
Telephone: 09 376 9383
Facsimile: 09 376 9388
Private Bag 68905
Newton, Auckland

Instructing Solicitors
Otene &Ellis
Telephone: 09 634 3619
Facsimile: 09 634 4125
P O Box 13-138
Onehunga, AUCKLAND

I, Penny Bright, make oath and say as follows that:

1 I was an elector in the recent local body elections.

2 I am also a spokesperson for the Water Pressure Group.
SWORN by the said )
PENNY BRIGHT )
At AUCKLAND this day )
Of 2001 before me )


……………………………….
I, Penelope Mary Bright, of 86A School Rd, Kingsland, Water Pressure Group (Auckland) Media Spokesperson, do solemnly and sincerely swear as follows

1 I have been actively involved in the community organisation known as The Water Pressure Group since its inception in July 1998.

2 The policy of the Water Pressure Group is opposition to the commercialisation of
water services, (water services being operated as profit-making businesses such as the Local Authority Trading Enterprise, Metrowater), privatisation of water services (including public-private-partnerships, like the Papakura District Council franchise with United water) and wants payment for water services back under general property-based rates rather than by fixed or user-charges.

2 The Water Pressure Group believes that water is a vital necessity for life which no one should be deprived of, and a basic human right.

3 In 1999, the Water Pressure Group spent hundreds of hours on a voluntary basis, and collected over 15,000 submissions for the Annual Plan opposing the commercialisation and privatisation of public assets.

4 Despite the fact that a majority of Councillors had been elected promising to abolish Metrowater, in 1999, the majority of Councillors voted to keep Metrowater as a L.A.T.E.

5 In 2000, the Water Pressure Group collected over 8000 submissions opposing the
commercialisation and privatisation of public assets.

6 Despite the fact that a majority of Councillors had been elected promising to abolish Metrowater, in 2000, the majority of Councillors voted to keep Metrowater as a L.A.T.E., and 4 City Vision Councillors failed to keep faith with the public by failing to support a motion to abolish Metrowater.

7 In the Avondale /Mt Roskill by election, in November 2000, the Water Pressure Group stood a candidate (myself) on the single issue of water services, and received over 6000 votes, running a strong second to the winner, Noeline Raffills from Citizens and Ratepayers, which confirmed the depth of public concern on the water issue. (Dale Ofsofske was the Electoral Officer for that by election.)
8 In 2001, the Auckland Water Pressure Group joined forces with Citizens Against Privatisation (C.A.P.) and the Papakura Water Pressure Group to form the Peoples’ Option Water Coalition, to collect submissions for a fourth, non-commercialised water services option for the public to consider, because the Auckland Region Water Review (ARWR) had failed to give the public such an option.
More submissions were collected supporting this non-commercialised water services option than the total collected for the ARWR’s three commercialised
water services options. These submissions were in the form of a postcard, known as the ‘Peoples’ Option ‘ postcard.

9 The ARWR claimed that privatisation was not on the agenda, yet franchising remained an option. The groups making up the People’s Option Water Coalition challenged the ARWR on this definition of privatisation, and called on the Minister for Local Government to conduct a Ministerial Inquiry into the ARWR in part on the basis that the public were being misled on the issue of privatisation.
The Minister declined to do so.

10 The groups making up the Peoples’ Option Water Coalition, which now included the Manukau Water Pressure Group, decided to call for an Auckland region wide
water bill boycott to put pressure on central government politicians so that they would not introduce any legislation that would spread user, flat or poll tax charges
for essential services such as water, and to put pressure on the Labour - Alliance Coalition Government to carry out their 1999 pre-election promises on water services which included opposition to privatisation.
Over 80,000 leaflets were distributed over the Auckland region which explained
That the Papakura franchise with United Water was in fact a form of privatisation.
(Over 12,000 leaflets were distributed to households in Papakura.)

11 In July 2001, two Water Pressure Group members (myself and Jim Gladwin) were invited to attend an international water conference in Canada ,in recognition of the work that the Water Pressure Group has done on this issue.
“Water for people and nature – An international forum on conservation and human rights, July 5 – 8, 2001 “ organised by the Council of Canadians.
Conference delegates active on water issues from around the world were informed:

“Privatisation of water takes many forms. Sale to the private sector of the complete system has only been done in the UK. Most common is the French model, which involves concessions or leases under which the private contractor collects all the revenues for a water service, carries the cost of operating and maintaining it, and keeps the surplus as a profit….”

Pg 8 “Water in Public Hands” by David Hall PSIRU, University of Greenwich.

“In the last 10 years many organisations have promoted privatisation, invariably though a concession or lease arrangement on the French model (sometimes described as a public-private-partnership – (PPP)), as the way forward for urban water supply and sanitation. This is the position taken, understandably, by the multinational water companies, and is the dominant view in the World Bank.”

Pg 6 “Water in Public Hands” by David Hall PSIRU, University of Greenwich.
12 In 2001 it was agreed that the Water Pressure Group would not stand candidates
in the Auckland Local Body elections, but we would send a questionnaire out to all Mayoral and Council candidates to ascertain their position on water services, and make that information available to the public.

12 In an email sent 13 September 2001 to Angus Ogilvie, Vice President of Auckland Now, I stated

“If ACRN want to address our meeting we require answers to all our questions first.
Sorry, but the public were seriously misled at the last Local body Elections, particularly by Auckland Now, who had big billboards up all over town “Scrap Metrowater”, but every time there was a vote on council Auckland Now candidates supported the continuation of Metrowater.
Straight answers to straight questions isn’t too much to ask on this really important question is it?
Unless you’re planning to mislead the public again?
Surely not…”

13 The response received from Angus Ogilvie, Vice President of Auckland Now, by email 17 September stated:

“My point, Penny is that Auckland Now does not have a privatisation agenda nor does C & R. I trust that allays any concerns that your group might have on that score. As stated, we have not yet released our water policy and will do so in due course.”

14 That position conflicted with ACRN candidates loyalty statement that had been received by the Water Pressure Group, which stated:
“Philosophy
6 …Service provision should be contracted out as much as possible.
7 …core services which include :- …water and stormwater…

POLICY PRINCIPLES:

WATER

1. Pipes and reticulation assets must be publically owned.
2. The existing LATE, Metrowater must be retained.
3. Water or wastewater charges must be kept as a separate charge and
not added to rates.
4. In the long term (5+ years) we look forward to a public-private operating partnership structure that works so well in other countries /jurisdictions (such as Victoria, Australia, and many communities in the USA).
5. There must be co-operation at the regional level to ensure adequate
supply, quality and ongoing levels of service."

15 It appeared that the water policy of Auckland Now from the 1998 election had now been adopted by the ‘joint venture’ Auckland Citizen & Ratepayers Now.
A letter confirming the policy of Auckland Now at the 1998 elections and the
election advertising being ‘ambiguous’, had been received by Auckland Now
City Councillor Jon Olsen on 14 May 2001.

“1) Metrowater advertising misinterpretation. The policy of Auckland Now at the last election was a public private partnership for the retailing of water in Auckland City. This would involve the infrastructure of pipes etc being owned by the council and a company not owned by the Council delivering the water and removing the wastewater as far as the Water Care system. This would mean the abolition of Metrowater Ltd. I agree that the billboards stating “abolish Metrowater” were ambiguous….I will endeavour to ensure that there is no misleading advertising this coming election…”

16 On 24 September 2001, I rang the Electoral Officer Dale Ofsofske, and complained that how could it be a fair and equal election if ACRN had a secret privatisation agenda, that they weren’t putting before the public?
I reminded him of how many votes the WPG had got the previous year in the Avondale/Mt Roskill by election, and the significant depth of public feeling that existed on the water services issue in Auckland City.
Dale Ofsofske replied that it wasn’t an offence to lie to the public, that he had no power to investigate a complaint, and when I asked him what were we supposed to do about this, he advised me to go to the media.
I followed his advice, but got a very poor response from most of the media, apart from a couple of community newspapers.

17 After discussion at our WPG meeting of 3 October, it was decided that the WPG would send the Electoral Officer an open letter of complaint, which we would also send to the media, in order to try and alert the public to the privatisation agenda of ACRN. An open letter of complaint was sent to The Electoral officer on 4 October.

18 Finally, on 10 October, a fax was received from the Electoral officer, asking

“If your organisation believes that an offence has been committed under the local Electoral Act 2001 or the Local Electoral Regulations 2001, please advise the writer that you wish your letter of complaint forwarded onto the police for investigation.”
This same fax stated
“As advised to you by telephone on 24 September 2001, if a breach or perceived breach of the legislation occurs, and a complaint has been received, the role of the Electoral Officer is simply to forward such a complaint on to the Police for investigation.”
This is not correct. No such advice was given on 24 September. The only advice I was given was to go to the media – which I did – to little avail.

19 At the WPG meeting that night, it was agreed that the Electoral Officer be advised that the WPG did want our complaint forwarded to the Police as soon as possible.
The election would be over in 3 days time.
I decided to check out for myself the Local Electoral Act on the internet, and discovered that under section 15, the Electoral Officer did in fact have the power to investigate a complaint. The complaint having effectively been left in limbo since 24 September(16 days) and the election nearly over, I decided to put the complaint directly into the hands of the Police - without going through the Electoral officer, in whom now I had completely lost faith.

138 Duty to take action in respect of offences

(2) Subsection (1) does not prevent any person from reporting an alleged offence to the police.

20 I tried to contact the New Zealand Commissioner of Police, who was not available, and was advised to contact the Auckland District Commander, Howard Broad. I initially made contact by phone and followed up with a hand-delivered letter of complaint to Auckland Central Police Station on 11 October 2001.
The complaint was in two parts:

(A) …how can the voting public cast an informed vote when one of the major parties to the election, ACRN, is NOT informing the public about their water services policy supporting a form of water privatisation which they have allegedly signed to uphold in their candidates loyalty statement.

(B) The Electoral Officer Dale Ofsofske has committed an offence under Section 131 of the Local Electoral Act and is guilty of an intentional act
of omission contrary to the provisions of this Act.


21 A reply was received by email from District Commander Howard Broad on
11 October 2001, which stated:

“It is lawful, albeit politically risky, for a candidate to misrepresent their policy position”.

22 District Commander Howard Broad declined to investigate either matter further,
but in a subsequent phone call on 12 October advised that the poll could be questioned under the Local Electoral Act 2001:

Section 93 Petition for inquiry

23 As an elector residing in Avondale, I received a personally addressed handbill signed by ACRN candidates David Hay, Noelene Raffills, Graeme Mulholland and Paul Forlong which stated:

“Retain public ownership of water and wastewater assets. Just to make it absolutely clear that we have never, and will never support privatisation of water and sewerage assets.”

Given that it is possible to privatise the management and operation of water and sewerage services while retaining public ownership of water and wastewater assets, as is the case with the Papakura District council public-private-partnership
With United Water, I found this statement to be extremely misleading, and a fraudulent misrepresentation of ACRN policy.

24 The results of the Auckland City Local Body elections were that
9 ACRN Councillors were elected. The WPG decided that we would petition for an inquiry into the 2001 Auckland City Local Body election.

25 Only 42% of Auckland City voters did so.
Well over half of the voting public are choosing not to participate in this system of ‘electoral democracy’. WHY?
The Universal Declaration of Human Rights Article 21 (3) states:

“ The will of the people shall be the basis of the authority of government; this will be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

If electors cannot cast an informed vote because the information upon which they are casting their vote and expressing their ‘will’ has been knowingly misrepresented – then how can such elections be ‘genuine’?

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