Terms of Reference
Those powers which cannot legally be delegated:
(a) the
power to make a rate
(b) the
power to make a bylaw
(c) the
power to borrow money, or purchase or dispose of assets, other than in
accordance with the long term plan
(d) the
power to adopt a long term plan, annual plan, or annual report
(e) the
power to appoint a chief executive
(f) the
power to adopt policies required to be adopted and consulted on under the Local
Government Act 2002 in association with the long-term plan or developed for the
purpose of the local governance statement
(g) the
power to adopt a remuneration and employment policy.
Additional
responsibilities retained by the Governing Body:
(a) approval
of long-term plan or annual plan consultation documents, supporting information
and consultation process prior to consultation
(b) approval
of a draft bylaw prior to consultation
(c) resolutions
required to be made by a local authority under the Local Electoral Act 2001,
including the appointment of electoral officer
(d) adoption
of, and amendment to, the Committee Terms of Reference, Standing Orders and
Code of Conduct
(e) relationships
with the Independent Māori Statutory Board, including the funding
agreement and appointments to committees
(f) approval
of the Unitary Plan
(g) overview
of the implementation and refresh of the Auckland Plan through setting
direction on key strategic projects (e.g. the City Rail Link and the
alternative funding mechanisms for transport) and receiving regular reporting
on the overall achievement of Auckland Plan priorities and performance
measures.
Exclusion of the public – who
needs to leave the meeting
Members of the public
All members of the public must leave the
meeting when the public are excluded unless a resolution is passed permitting a
person to remain because their knowledge will assist the meeting.
Those who are not members of the public
General principles
·
Access to confidential information is managed on a “need to
know” basis where access to the information is required in order for a
person to perform their role.
·
Those who are not members of the meeting (see list below) must
leave unless it is necessary for them to remain and hear the debate in order to
perform their role.
·
Those who need to be present for one confidential item can remain
only for that item and must leave the room for any other confidential items.
·
In any case of doubt, the ruling of the chairperson is final.
Members of the meeting
·
The members of the meeting remain (all Governing Body members if
the meeting is a Governing Body meeting; all members of the committee if the
meeting is a committee meeting).
·
However, standing orders require that a councillor who has a
pecuniary conflict of interest leave the room.
·
All councillors have the right to attend any meeting of a
committee and councillors who are not members of a committee may remain,
subject to any limitations in standing orders.
Independent Māori Statutory Board
·
Members of the Independent Māori
Statutory Board who are appointed members of the committee remain.
·
Independent Māori Statutory Board
members and staff remain if this is necessary in order for them to perform
their role.
Staff
·
All staff supporting the meeting (administrative, senior
management) remain.
·
Other staff who need to because of their role may remain.
Local Board members
·
Local Board members who need to hear the matter being discussed
in order to perform their role may remain. This will usually be if the
matter affects, or is relevant to, a particular Local Board area.
Council Controlled Organisations
·
Representatives of a Council Controlled Organisation can remain
only if required to for discussion of a matter relevant to the Council Controlled
Organisation.
|
Governing Body
30 May 2019
|
|
Approval
of terms of reference for cultural heritage review stage two
File No.: CP2019/01877
Te take mō te
pūrongo
Purpose of the report
1. To
approve the terms of reference for stage two of the Tāmaki
Makaurau cultural heritage institutions review. This responds to
guidance given by councillors at a workshop in October 2018.
Whakarāpopototanga matua
Executive summary
2. In
May 2017, Auckland Council approved the establishment of a review of the major
cultural heritage institutions (museums and galleries) to which the ratepayers
and residents of Auckland contribute funding. These are Auckland Art
Gallery, Auckland War Memorial Museum, Museum of Transport and Technology, New
Zealand Maritime Museum, and Stardome Observatory and Planetarium (the five
main institutions).
3. Auckland’s
main museums and galleries operate under varying governance, accountability and
funding structures.
4. As
stage one of the review, council commissioned a review report (‘the
Stafford report’) providing analysis and options about how to achieve
better outcomes from the investment in these cultural institutions. The
cultural institutions, and councillors (at two workshops), suggested that stage
two should consist of a collaborative process to move from a
‘review’ process to one which develops the future strategic
priorities for the museums and galleries sector, and begin to consider what
institutional structures will best support achieving those priorities.
Implementation would be stage three.
5. The
key purposes of stage two are:
· to
confirm and agree the evidence base and issues, as initiated in the Stafford
report
· to
develop a strategy to determine council and sector priorities, allowing clear
decisions on future investment
· to
respond to aspirations of mana whenua for greater formal involvement in the
institutional cultural sector and its priority-setting
· to
respond to a range of opportunities and challenges arising from the growth and
diversity of Auckland.
6. The
draft terms of reference for stage two are attached to this report for approval
(Attachment A). The key outputs of the review will be a strategy setting
out sector priorities, and any recommendations on new governance and funding
options to support achieving the sector priorities.
7. Staff
have also considered other options such as:
· stopping
the review and continuing with the status quo
· implementing
the Stafford report recommendations without significant additional analysis
· seeking
central government support for imposing a solution.
8. Staff
do not consider that any of these options will deliver the range of long-term
benefits that a collaborative process will produce, will not respond to
Māori aspirations, and may not be implementable.
9. The
terms of reference anticipate establishment of governance and working groups to
include:
· the
five main institutions
· Regional
Facilities Auckland
· Auckland
Council
· the
Mana Whenua Kaitiaki Forum.
10. Consultation
involving wider stakeholders such as Auckland’s smaller institutions and
central government organisations (including Ministry for Culture and Heritage
and Te Papa) will also be provided for.
11. Next steps
include project establishment through to the middle of 2019, recommendations on
strategic priorities to a new Auckland Council early in 2020, and final
recommendations prior to the beginning of the Long-term Plan 2021-2031 process
in late 2020.
|
Ngā tūtohunga
Recommendation/s
That the Governing Body:
a) approve
the terms of reference for stage two of the cultural heritage review
b) note
that the five main institutions participating in the review (Auckland Art
Gallery, Auckland War Memorial Museum, Museum of Transport and Technology,
New Zealand Maritime Museum, and Stardome Observatory and Planetarium),
Regional Facilities Auckland and the Mana Whenua Kaitiaki Forum all support
the terms of reference and the collaborative review process which it
establishes, and thank those organisations for their participation and
commitment thus far.
|
Horopaki
Context
Current governance framework
12. Auckland
Council invests more than $60 million each year in several major cultural
heritage institutions and facilities including Auckland War Memorial Museum,
Auckland Art Gallery, Museum of Transport and Technology (MOTAT), Stardome
Observatory and Planetarium[1]
and the New Zealand Maritime Museum. These institutions manage facilities
and collections which cater to local and international audiences and are
kaitiaki of more than seven million taonga and collection items.
Collectively they deliver a range of education and public programmes,
exhibitions, collections care and research.
13. At
amalgamation in 2010, arrangements for the cultural sector were not
comprehensively examined. This meant legacy arrangements were largely
carried over and combined with the newly established council-controlled
organisation system. These arrangements are set out in the diagram below.
14. Three
pieces of legislation are of particular note in supporting these
arrangements.
· Auckland
War Memorial Museum Act 1996
· Museum
of Transport and Technology Act 2000
· Auckland
Regional Amenities Funding Act 2008
15. This
legislation responded to a situation prior to amalgamation where regional
organisations were not funded equitably by the (then) councils in the Auckland
region. Each of the statutes provided for systems where the institutions
could levy the multiple councils for annual funding, in specific proportions
according to council size and property values. Central government also
instituted similar (but less prescriptive) levy systems for Otago and
Canterbury Museums.
16. At
amalgamation, these systems were largely carried over into the unified Auckland
Council structure. This was recognised by both Auckland Council and the
government as an issue to be looked at again. In his ‘Briefing
Paper to the Incoming Government’ of 2011, Mayor Len Brown noted that:
“Governance and funding arrangements for the
Auckland War Memorial Museum, MOTAT and for the ten Auckland Regional Amenities
Funding Act entities need to be reviewed and aligned with the new governance
structure for Auckland. This has previously been acknowledged by Cabinet
(CAB (10) 332).”
Work so far on the review
17. The table
below sets out recent key milestones in considering whether there are
alternatives to the current arrangements:
|
What?
|
When?
|
Description
|
|
Investing in
Auckland’s cultural infrastructure, A strategic framework report
|
October 2015
|
This report was
commissioned by Regional Facilities Auckland and Auckland Museum.
It recommended adoption of
a detailed strategic planning framework, with a focus on Auckland’s
points of difference, stimulating participation and learning, generating sustainable
cultural value, and moving beyond single purpose institutions.
|
|
Toi Whītiki,
Auckland’s Arts and Culture Strategic action plan
|
November 2015
|
Toi Whitiki was endorsed
and launched by council in late 2015. This strategy sets goals
and priorities for the cultural sector, with a focus on working
collaboratively to achieve the objectives.
|
|
Approval to establish
cultural heritage review and a terms of reference
|
May 2017
|
Council’s governing
body agreed a terms of reference for a review of its investment in major
cultural heritage institutions in May 2017 (ENV/2017/64). This had a
focus on the need to first establish what council’s key strategic
priorities for the cultural heritage institutions (museums and galleries)
should be, before trying to assess what the appropriate structural
arrangements would be.
|
|
Formation of
‘Museums of Auckland’ coalition
|
Mid-2017
|
During 2017, some of
Auckland’s cultural institutions (Auckland Art Gallery, MOTAT, Howick
Historical Village, Auckland Museum, Torpedo Bay Navy Museum, Stardome, New
Zealand Maritime Museum, and joined also by Heritage New Zealand) formed the
Museums of Auckland group. This group has been exploring and
implementing opportunities for collaboration on marketing, ticketing, staff
development and collections.
|
|
Receipt of final
version of Auckland Cultural Heritage sector review report (the
Stafford report)
|
May to October 2018
|
Auckland Council received
and made public the report prepared by consultants Stafford Strategy. The key
recommendations are outlined in paragraph 20 below.
Over two workshops,
councillors gave guidance for officials to work towards establishing a
collaborative process with the key affected institutions to take the review
forward and to develop a new terms of reference for this ‘stage
two’ of the review.
|
|
Receipt of report: The
cultural heritage sector: Assessing options for further establishing
Māori identity as Tāmaki Makaurau’ point of difference in the
world
|
February 2019
|
The Mana Whenua Kaitiaki
Forum which advises Auckland Council commissioned its own discussion paper in
response to the cultural heritage review. This report was the first
step in supporting the Forum’s future formal involvement in the
review. This report is attached, and its main points are discussed in the
‘Analysis and Advice’ section of this report.
|
18. The Stafford
report made a number of recommendations. While the conclusions were not
universally agreed with by the institutions (and have not been formally
endorsed by the Governing Body), the report represents a useful first step and
an input into the review process. The Stafford report process also made
clear the need to work closely with the institutions to achieve better outcomes
in the cultural sector.
19. One of the
first tasks for stage two of the review will be to confirm and agree a common
view of the issues, opportunities and challenges faced by the sector and a
solid evidence base from which strategic priorities can be considered.
20. The key
recommendations of the Stafford Report were:
· for
Auckland Council to develop a centralised cultural policy and coordination
function
· to
simplify cultural heritage sector governance, so council can be to be confident
its priorities will be delivered
· Mana
Whenua to have a clear governance and advisory role in any new structure
· noting
that change may take time, encourage Regional Facilities Auckland to appoint
board members with a stronger cultural background, and strengthen the Museums
of Auckland coalition.
21. Taking all
this context together, there are three key issues which have emerged from the
work done so far:
· lack
of strategic clarity in what Auckland Council’s investment in cultural
heritage organisations is trying to achieve
· the
need to ensure our cultural institutions are responsive to Māori and
particularly mana whenua aspirations in Auckland, and meet the commitment to
celebrate Māori and their culture as a point of difference in Auckland
· taking
the opportunities and meeting the challenges afforded to the cultural heritage
institutions by the growth and diversity of Tāmaki Makaurau.
Tātaritanga me ngā
tohutohu
Analysis and advice
22. The advice of
councillors when considering the Stafford report in October 2018 was to work
collaboratively with the institutions, using the Stafford report as a starting
point. The scope of the new terms of reference are described below.
The terms of reference have been developed with the institutions, which have
endorsed them at a meeting on 9 May 2019.
Determining a strategy for council’s investment in
cultural heritage institutions
23. The draft
terms of reference propose that council and the institutions clearly identify “by way of a clear vision and strategy, the outcomes Tāmaki
Makaurau is seeking from the cultural heritage sector, against which proposals
to refresh our current infrastructure or make new investments can be
tested”. It is important to understand what council wants to
achieve with our investment, and to what degree it is already being undertaken
by our institutions, and what may need to change.
24. Toi
Whītiki guides council arts, culture and heritage priorities. The
strategic priorities which council and the institutions expect to emerge from
stage two of the cultural heritage review will sit at a lower level than Toi
Whītiki, and be guided by its high level goals. Toi Whītiki has
a focus on increased participation, Auckland’s unique cultural identity,
cultural infrastructure, investment in arts and culture, and building a strong
creative economy. More particularly in relation to the cultural heritage
institutions, it included objectives and actions to:
· grow
and deliver strategic investment in arts and culture
· support
a network of complementary arts and cultural institutions and facilities
· ensure
governance and funding arrangements of council-funded institutions enable them
to operate sustainably and collaboratively
· establish
mana whenua co-governance models in major cultural institutions.
25. Auckland’s
institutions have all made significant efforts to align their own individual
strategies and plans with Toi Whītiki and also the Auckland Plan
2050. Despite this, the Stafford report noted that the institutions do
not feel that council provides clear guidance on what it wants from its ongoing
investment in them, and that Toi Whitiki does not provide sufficient detail in
this regard. This reflects the current governance and accountability
relationships between council and the institutions, which vary from
‘arms-length’ to statutory independence (in the case of the
museums).
26. Council does
not currently have the ability to require performance objectives against an
agreed strategy, which means that it has largely been left to the institutions
themselves to design their own priorities under the high-level priorities set
out in Toi Whītiki and the Auckland Plan.
Opportunities for enhanced role for mana whenua in the cultural
institutions of Tāmaki Makaurau
27. The initial
stage of the cultural heritage review has clearly revealed that a more
systematic and committed approach to meeting the cultural aspirations of
Māori in Auckland is required.
28. Stage two of
the review gives the opportunity to consider how mana whenua and iwi Māori
governance can be enhanced in the cultural sector, and this is reflected in the
proposed terms of reference: “a sector that can model
the Treaty of Waitangi partnership and genuinely reflect a mana whenua and te
ao Māori world view, with Māori having an integral governance
role”.
29. The Mana
Whenua Kaitiaki Forum considered the terms of reference at its 18 April 2019
meeting and endorsed its key features, including the focus on improving
Māori governance.
30. The issue of
the future role of Mana Whenua in the cultural sector has emerged over the last
year. Council staff briefed the Mana Whenua Kaitiaki Forum on several
occasions during and after the preparation of the Stafford report. The
Forum commissioned a report supplementing the Stafford report, to describe the
formal and informal ways in which the Auckland cultural heritage institutions
engage with Māori (Attachment B).
31. Some of the
key findings of this report are outlined below.
· The
Auckland Museum legislation (1996) was ground-breaking in establishing a formal
role for Māori in museum governance in the form of the Taumata-a-iwi,
which advises the Museum’s board. However, its mana whenua
representation is limited, and it is at least arguable that since then,
Auckland’s cultural governance arrangements have not evolved to meet
broader changes in society.
· In
other contexts (such as management of Auckland’s maunga and Tikapa Moana)
co-governance bodies have been established, recognising Māori
interests in those areas. This presents a challenge as to whether
something similar should be considered in the museum sector. As noted
above, Toi Whītiki directly suggested that such models be considered in
the cultural sector.
· Despite
some of the institutions having good relationships with Māori and advisory
committees, this is largely dependent on personal relationships rather than
formal structures that would survive changes in personnel.
· Both
the original Auckland Plan and the Auckland Plan 2050 recognise Auckland
Council’s responsibilities to all the different iwi and hapu with mana
whenua status in Auckland.
· A
range of other factors have created expectations of a different role for
Māori in cultural governance. These include the Tāmaki
Collective settlement of 2012, and the Ko Aotearoa Tenei (Wai 262) report of
2011 (about law and policy relating to Māori culture and identity).
Taking the opportunities created by growth in Auckland
32. The original
terms of reference for the cultural heritage review discussed some of the more
institutional and bureaucratic drivers of the review. These included
long-standing infrastructure challenges at MOTAT, potential location issues for
Maritime Museum and Stardome and council’s dissatisfaction with the levy
systems enshrined in legislation for Auckland Museum and MOTAT.
33. These issues
remain, but as a way of responding to them and in discussion with the
institutions, the focus has shifted to developing a positive response to
opportunities afforded to the region because of its growth and diversity.
34. These opportunities
are outlined in the proposed terms of reference for stage two and include:
· an
integral governance role for Māori (as discussed above)
· a
sector that conserves, develops, reflects and shares the Tāmaki Makaurau
story in a collaborative way, with each institution having its own unique
contribution
· a
sharing of resources to make the most of strengths, where that makes sense,
with each institution financially secure and sustainable, but also flexible to
changing circumstances
· structural
arrangements which will give council (and government) the confidence to invest
further in the sector, because there is clear strategic thinking across the
collective entities rather than the development of isolated investment
proposals
· a
sector which is internationally distinctive and internationally connected,
reflecting Auckland’s role in New Zealand.
Options considered
35. Reviewing the
cultural sector arrangements inherited at amalgamation has been proposed on a
regular basis since the formation of Auckland Council. It has been well
recognised that the arrangements have been successful in ensuring financial
sustainability of some of the institutions, but it has been harder to seek
approval to resolve some of the more pressing infrastructure or location issues
without a clear sense of a broader sector strategy.
36. In this
context, a collaborative approach involving all the main institutions, Regional
Facilities Auckland, the Mana Whenua Kaitiaki Forum, and Auckland Council is
recommended as having the best chance of long-term success. The last few
months have seen the development of the foundations of this approach, with a
nascent governance group being formed, and a significant amount of bilateral
discussions between council staff and individual institutions.
37. As is noted
above, council spends more than $60 million every year on these main cultural
heritage organisations. This investment covers a range of organisational
types and subject matters, including an encyclopaedic museum (Auckland Museum),
a traditional civic art gallery with a broad collection that is nationally
significant, and collections focussing on technology, science and
Auckland’s marine heritage. Council considers that it makes sense
to consider this portfolio as a whole, and whether there are strategic gaps
which we should seek to understand and respond to. We can only do this
with the input and expertise of the organisations which deliver cultural
services.
38. However,
alternatives do exist to the recommended approach. These are set out in
the table below, with relevant considerations noted.
|
Option
|
Advantages
|
Disadvantages
|
|
Stop the review,
continue with status quo
|
Certainty and familiarity
with current system
Less disruptive
Museums of Auckland
coalition has already established and could deliver some of the desired
changes
|
Does not resolve multiple
issues raised over time by institutions, council, and mana whenua – it
is fundamentally unsustainable to do nothing
Lack of strategy makes
long-term decisions difficult
Does not respond
systematically to external challenges e.g. growth
Museums of Auckland
coalition still new, and not clear how enduring and whether it could address
the bigger context questions
Without a review it is likely
to be impossible to consider new options for ARAFA or smaller organisations
which council funds
|
|
Implement
recommendations of stage one (Stafford report)
|
Ready-made set of
recommendations
|
The recommendations are
not comprehensive and more work is needed anyway
Mana whenua were not
involved and not reflected sufficiently
Institutions do not
support elements of the analysis
Not clear what the
implementation pathway is
|
|
Advocate to central
government to impose a solution
|
Traditional council-facing
policy process could be undertaken
May solve some council
interests
Could potentially be
quicker
|
Without a strategy, not
obvious what ‘solution’ we would advocate for
Likely to be significantly
opposed by institutions, and damaging to relationships
May be publicly
controversial
Central government
unlikely to support this approach
Likely to have less
enduring and less valuable outcomes than a process agreed with our
institutional partners
Has effectively been tried
before by requests by former mayor – not successful
|
|
Collaborative process
taking a portfolio approach (recommended)
|
Institutions seen as key
delivery partners in cultural sector – respects their expertise
Agreed outcomes means any
changes also likely to be supported
Central government more
likely to support an agreed Auckland approach
Mana whenua involved
closely – respects their aspirations and council responsibilities to
them
|
Will require careful
management to ensure inclusion of all stakeholders and ongoing commitment to
process
|
Process for stage two of the review
39. A project
structure including Auckland Council, the main five institutions, and the Mana
Whenua Kaitiaki Forum will be established. This is shown in the diagram
below. The structure reflects the collaborative nature of stage two.
While this approach has the ongoing risk that one or more parties may wish to
withdraw, all the organisations have indicated their desire to participate and
take the opportunity to shape the cultural heritage sector of the future in the
region.
40. The
governance group will include the main project participants and meet
approximately bi-monthly. This group may also include some independent
members as required for their expertise or experience in areas not otherwise
covered by the membership. The purpose of this group will be to guide the
work and establish workstreams, and, in the establishment phase, confirm
membership of the different project groups.
41. A working or
reference group will be established and meet more frequently (monthly), along
with consultation groups and relationships with the wider sector (including
Auckland’s smaller museums and galleries) and stakeholders such as
central government (including Ministry for Culture and Heritage and Te
Papa). A core team of council staff will be responsible for producing reports
and other materials for the project, as well as undertaking project
administration.
Out of scope of stage two
42. The
governance group will consider the relationship of the project to organisations
such as Auckland Zoo. There are commonalities in the activities of the
Zoo with museums and galleries, and in some overseas cities, zoos are often
grouped with heritage collecting institutions (such as San Diego).
However, there are of course differences, which is why the Zoo is not directly
involved at this time.
43. Similarly,
Auckland’s smaller institutions are part of stage two primarily by way of
the ‘other Auckland institutions’ group which will be established,
so that these organisations can have input. Staff have already had
several informal consultation meetings with organisations such as Te Tuhi,
Corbans Estate and Te Uru.
44. In stage one
of the review, the Auckland Regional Amenities Funding Act (ARAFA) system has
been raised by councillors. The initial focus of stage two is not on structural
arrangements, but first and foremost on council and the sector’s
strategic priorities. Later in stage two, the implications of any
proposed changes on the ARAFA system will be considered. Therefore, given
the broader purposes of ARAFA – which also includes several performing
arts and community safety organisations – including a comprehensive
review of the ARAFA system is not recommended. This would risk the review
losing a tight focus on where the biggest benefit can be gained and make it
less manageable from a practical point of view.
Ngā whakaaweawe me
ngā tirohanga a te rōpū Kaunihera
Council group impacts and views
45. Regional
Facilities Auckland (RFA) has an important role in the review. RFA has
the Auckland Art Gallery and New Zealand Maritime Museum as part of its
portfolio of cultural facilities. It also has a wider role to promote
cultural outcomes in Auckland, as well as a mandated role as council’s
adviser and agent in the levy processes for Auckland Museum and MOTAT.
46. RFA supports
the approach being taken in the review and the proposed terms of
reference. Both RFA corporate staff and also staff from its cultural
business units have been represented at meetings held so far. RFA has
consistently affirmed its support for the review through its Statement of
Intent and has expressed its openness to the outcomes of the review.
47. The Stafford
report referred to the need to involve ATEED more closely in economic
development opportunities around culture and linking the sector better with
other tourism activity in Auckland. The key focus of the review remains
delivering cultural value, which is the primary role of cultural
organisations. ATEED has not therefore been consulted directly on the
terms of reference, but the governance group will consider the appropriate time
to involve ATEED as it proceeds through the strategic work.
48. While the
other cultural institutions which are part of the review are not part of the
council group, council substantially funds them. Auckland Museum, MOTAT
and Stardome are all supportive of the review and the proposed terms of
reference. Staff and board members from these organisations have been
present at meetings held so far, and endorsed the terms of reference at a 9 May
2019 meeting.
Ngā whakaaweawe
ā-rohe me ngā tirohanga a te poari ā-rohe
Local impacts and local board views
49. As a
programme of work dealing with strategy for regional institutions, the sponsor
of the review is Auckland Council’s governing body. However, local
boards still have an important governance role to play in inputting to regional
decisions and strategy-making, and this is represented in the project structure
diagram above.
50. The core team
will take responsibility for keeping local boards informed of the stage two
process and ensuring that feedback from local boards is incorporated within the
work. As a first step, local boards are being sent an information memo
about the stage two terms of reference.
51. When the
programme moves into stage three (implementation of any changes), local boards
are likely to have a particular interest as it affects institutions within
their local board area. This is especially the case for the many smaller
cultural institutions in Auckland, and also if the Te Papa Manukau proposal is
advanced in any form by central government.
Tauākī whakaaweawe
Māori
Māori impact statement
52. This report
has discussed how the review process has shifted since the initial terms of
reference (May 2017) to now include responding to mana whenua as a primary
driver of the review.
53. If the terms
of reference are approved by council, this will formally endorse mana whenua as
part of the process. This will ensure that mana whenua priorities and
perspectives are integral to the work undertaken.
54. By involving
mana whenua as key partners alongside the institutions at this stage of the
review, it is intended to guarantee that Māori outcomes
are prioritised for delivery through the review process, including
implementation and delivery phases.
Ngā ritenga
ā-pūtea
Financial implications
55. Stage two of
the review will largely be resourced by staff from within Auckland Council, Regional
Facilities Auckland and the cultural institutions. A project budget will
be established to ensure that any independent members of the governance group,
and Mana Whenua Kaitiaki Forum members can be paid for the time they spend on
the project. This has been anticipated in existing budgets.
56. Stage two of
the review will not affect the levy processes for Auckland Museum, MOTAT or
ARAFA. These processes are separate and will continue according to the
procedures set out in the legislation.
Ngā raru tūpono me
ngā whakamaurutanga
Risks and mitigations
57. An informal
risk assessment has been undertaken as part of preparing this report. It
is anticipated that a more formal risk assessment exercise will be undertaken
by the core project team as part of project establishment.
58. If the
proposed terms of reference are approved, the primary risk is a reputational
one for council. Council could be perceived as trying to
‘attack’ or ‘take over’ institutions which are seen by
Aucklanders as an important and valued part of the cultural life of the region,
or that council’s motivations are primarily financial rather than
strategic.
59. This risk
will be mitigated in two main ways. Firstly, the collaborative process
which is proposed by the terms of reference demonstrates that the institutions
and other project partners understand the reasons for the review, the
opportunities for the future, and are supportive of it. In this context,
council should not be seen as acting alone in somehow imposing a process where
one is not required. Secondly, we will work closely with communications
staff within council and the institutions to ensure that the public understand
what the process is seeking to achieve.
60. There is a
wider risk that council is not able to maintain the cohesive and co-designed
process that is proposed in this report. This risk will be managed by
ensuring sufficient resource is applied to the process, and by maintaining an
open and collaborative style of governance, at the right levels. Council
has already sought to involve members of boards of the institutions, as well as
management staff, so that commitment to this process is engaged at a high level
from the beginning.
61. Finally,
there is a risk that the process and any changes will not be supported by
central government. This risk will be mitigated by involving central
government in the consultation groups, but also by maintaining informal
relationships at various levels (governance, senior staff) as the process
progresses.
Ngā koringa ā-muri
Next steps
62. The broad
timeline for the review programme is included in the terms of reference.
It is anticipated that recommendations on strategic priorities for the sector
are brought back to council in early 2020. Recommendations on any more
significant changes will likely need to be consulted on through the 2021-2031
Long-term Plan process which will begin in late 2020.
63. The immediate
next steps are to establish the project governance, working and stakeholder
groups. This will occur over the next few months, with the precise membership
being guided by the governance group itself, noting that the process is
intended to be fluid and involvement and membership not too rigidly
defined.
Ngā tāpirihanga
Attachments
|
No.
|
Title
|
Page
|
|
a⇩ 
|
Draft Terms of Reference, Tamaki Makaurau cultural
heritage sector review, 9 May 2019
|
23
|
|
b⇩
|
Discussion paper: Assessing options for further
establishing Maori identity as Tamaki Makaurau' point of difference in the
world
|
31
|
Ngā kaihaina
Signatories
|
Author
|
Edward Siddle - Principal Advisor
|
|
Authorisers
|
Alastair Cameron - Manager - CCO Governance &
External Partnerships
Phil Wilson - Governance Director
Stephen Town - Chief Executive
|
|
Governing Body
30 May 2019
|
|
Submission Approval - Building System
Legislative Review: Discussion Paper
File No.: CP2019/08085
Te take mō te
pūrongo
Purpose of the report
1. To
approve the high-level summary of Auckland Council’s submission on the
Ministry of Business, Innovation and Employment’s Building System
Legislative Review discussion paper.
Whakarāpopototanga matua
Executive summary
2. The
Ministry of Business, Innovation and Employment (MBIE) released a discussion
paper in April 2019, outlining proposed changes to building legislation including
the Building Act, and has called for submissions by 16 June 2019.
3. While
the discussion paper clearly articulates many of the problems and limitations
of the current building legislation, the view of staff is that the discussion
document does not contain sufficient detail about the proposals or the
timeframes for implementation and many of the proposals do not go far enough to
address these issues.
4. Auckland
Council has previously submitted on many of the issues raised in the discussion
paper. The proposed submission points outlined in this report have been
informed by previous advocacy positions.
5. The
report recommends that council supports:
· expanding
the purpose of the Building Act to include the regulation of building products
and methods and their use
· changing
the licencing building practitioners scheme to raise the competence standards
and broadening the definition of restricted work
· introducing
an insurance and guarantee product to protect homeowners
· expanding
the way in which the chief executive of MBIE can use the levy to include
stewardship
· increasing
maximum financial penalties and introducing higher penalties for organisations.
6. With
respect to many of these matters, the report recommends that council advocates
for further change including:
· introducing
a mandatory national product register
· having
an exam for Licensed Building Practitioners (LBP) to ensure consistent
standards
· making
the insurance and guarantee product mandatory (no opt out provision) and apply it
to commercial as well as residential buildings.
7. The
report recommends that council does not support:
· reducing
the building levy
· the
proposal to leave the liability settings for defective building for Building
Consent Authorities (BCA) unchanged. The submission should advocate to replace
‘joint and several’ liability with proportional liability; however,
if joint and several liability is retained, the suggestion that liability for
councils could be capped at 20 per cent should be supported.
|
Ngā tūtohunga
Recommendation/s
That the Governing Body:
a) approve
the high-level summary of the council submission on the Ministry of Business,
Innovation and Employment’s Building System Legislative Review
discussion paper
b) delegate
final approval of the submission to the Mayor, Chair of the Planning
Committee and Chair of the Regulatory Committee.
|
Horopaki
Context
8. The
Ministry of Business, Innovation and Employment (MBIE) has signalled that major
changes to New Zealand’s building laws are needed to improve the quality
of building work. A discussion paper was released in April 2019, with proposals
for some changes that would affect people, products and
practices across the sector. Submissions close on 16 June 2019. Auckland
Council’s Building Consents Department, with support and input from the
wider council, is preparing a submission on the discussion paper.
9. The key changes that are proposed in the discussion paper are:
· Expand
the Building Act from regulating building work to also regulating the processes
and products underlying that work
· Raise
the competence standards of Licensed Building Practitioners (LBPs) and
introduce a new licensing scheme for engineers
· Require
a guarantee and insurance product for residential buildings that homeowners can
opt out of
· Retain
joint and several liability for building defects rather than shifting to
proportional liability, however further explore the idea of a cap on liability
for BCAs of 20 per cent
· Allow
MBIE to spend the levy funds on broader stewardship of the building sector
· Increase
the maximum financial penalties for individuals and organisations, extend the time
enforcement agencies can lay a charge and modify the definition of
‘publicly notify’.
10. Council has previously advocated or submitted on many of the issues
raised in the discussion paper. For example, the council has strongly advocated
for proportional liability for building defects to replace the current system
of joint and several liability. The leaky building crisis imposed significant
cost on local authorities under the current liability settings because councils
are often the ‘last man standing’.
Tātaritanga me ngā
tohutohu
Analysis and advice
11. This report provides an analysis of the key proposals in the
discussion paper and the recommended council response to these proposals. The
recommended responses are based on:
· a review of council’s previous submissions/advocacy
· interviews with council staff from relevant divisions/departments
12. While the discussion document reflects some of the changes for which
the council has previously advocated, in many cases the changes do not go far
enough. For example, while the council has supported an insurance and guarantee
product, council staff’s view is that this should be mandatory.
13.
|
Building products and
methods (part 2)
|
|
Proposal
|
· Clarify
roles and responsibilities for building products and methods
· Require
manufacturers and suppliers to provide information about building products
· Strengthen
the framework for product certification
Make
consenting easier for modern methods of construction, including off-site
manufacture
|
|
Discussion and analysis
|
The proposed changes would
expand the Building Act from regulating building work to also regulating the
processes and products underlying that work.
These proposals reflect
that building products, methods
and building work are changing in ways that were not expected when the
Building Act came into effect in 2004. Changes include modern methods of
construction (MMC) and a significant increase in imported building products.
Regulation needs to be flexible enough to support innovations that increase
productivity and ensure that buildings are safe and durable.
While these
changes are a step in the right direction, staff consider that they do not go
far enough. For example, the proposals would still leave the council as the
assessing and approving agency for new building products and techniques,
which is problematic because council does not have a product testing
laboratory or engineering/construction evaluation test facility.
|
|
Recommended council
response
|
· Support
expanding the purpose of the Building Act to include the regulation of
building products and methods and their use
· Request
that more work is done in relation to proposed definitions of building
products and building methods and building systems, particularly given modern
methods of construction and the importation of overseas products
· Note
that minimum information requirements do not go far enough and need to be
expanded e.g. to include statements as to whether the product meets the
Building Code. Information should also be provided in a standardised format
· Request
that definitions for variations are clarified and expanded for clarity and
consistency
· Request
that a mandatory national product register be managed by an independent Crown
entity, in addition to the proposals in the discussion document.
· Request
that the Building Code is amended to acknowledge that some Māori
buildings and structures such as Marae are developed using traditional
construction techniques. These types of structures and techniques are not
specially considered in the consultation document. Auckland Council proposes
that the Building Code acknowledges these traditional techniques.
|
|
Occupational regulation
(part 3)
|
|
Proposal
|
· Change
the Licensed Building Practitioners scheme to raise the competence standards
and broaden the definition of restricted building work
· Introduce
a new licensing scheme for engineers and restrict who can carry out
safety-critical engineering work
· Remove
exemptions that allow unlicensed
people to carry out plumbing, gasfitting and drainlaying work.
|
|
Discussion and analysis
|
The
objectives of the proposed changes are:
· to
address regulatory gaps in the system of occupational regulation
· make
sure that restrictions on building work are proportionate to the risks to
public safety
· make
sure that those who are licensed to undertake restricted work have the right
level of competence and are held accountable for substandard work.
The
proposals will rebalance risk in the building process by making sure that
those who are best able to manage risks will be held to account for
substandard work and give the public and those involved in the building
process greater assurance that building work has been carried out by
competent people with reasonable care and skill to enable a more efficient consenting
process.
While these
changes are supported in principle, staff consider that they do not go far
enough. For example, the proposals would still leave the council assessing
the competency and experience of Engineers who submit attestations confirming
project work has been designed in accordance with the Building Code. The
proposed engineers register does not accommodate reporting the
engineer’s current areas of practice and experience.
|
|
Recommended council
response
|
· Address
the lack of skills, training and ethics of LBPs
· Support
further work on the definition of Restricted Building Work
· Support
fit and proper person test and code of ethics for LBPs
· Support
a mandatory engineers certification scheme rather than a proposed voluntary
scheme
· Support
assessment of licensed engineer’s competence (within the scope of their
licence) by an independent third party – do not support self-assessment
· Develop
a single LBP Board incorporating the Plumbers, Gasfitters
and Drainlayers Board
|
|
Risk and Liability (part
4)
|
|
Proposal
|
· Require
a guarantee and insurance product for residential new builds and significant
alterations and allow home owners to actively opt out of it
Leave the liability
settings for Building Consent Authorities unchanged.
|
|
Discussion and analysis
|
The objectives
of the proposed changes are to provide protections for homeowners and
incentives to builders and designers to produce high-quality building work.
The view of
staff is that the proposals are unlikely to achieve these objectives because
the discussion document recommends retaining joint and several liability for
building defects instead of changing to proportional liability. This means
that councils as BCAs will continue to bear a disproportionate liability
burden.
The discussion
document also asks for feedback on the option of limiting BCA liability by
placing a cap of 20 per cent on BCAs.
|
|
Recommended council
response
|
· Support
an insurance and guarantee product for residential new builds and significant
alterations but submit that the product must be mandatory and apply to both
residential and commercial work
· Request
that MBIE considers whether any changes are needed to company structures to
support insurance and guarantee projects (that is, shelf companies that wind
up once construction is finished)
· Do not
support leaving the liability settings for BCAs unchanged (that is, retaining
joint and several liability)
· Support
the suggestion of a 20 per cent liability cap for BCAs
|
|
Building Levy (part 5)
|
|
Proposal
|
· Reduce
the building levy from $2.01 including GST to $1.50 including GST (per
$1,000)
· Standardise
the building levy threshold at $20,444 including GST
· Allow
MBIE to spend funds raised by the building levy on broader stewardship of the
building sector
|
|
Discussion and analysis
|
The proposed changes will
reduce cost, standardise the levy threshold, and support stewardship of the
building sector. The Ministry of Business, Innovation and Employment proposes
that its chief executive should be able to spend the levy on activities
related to stewardship of the building sector. Stewardship requires MBIE to
analyse the building environment, understand where the future might take us
and assess whether the building regulatory system is equipped to cope with
the future. ‘Stewardship’ in this instance means actively
planning for and managing the medium to long-term development and improvement
of the building regulatory system as a whole.
Council staff
support the proposal to enable the chief executive of MBIE to spend the levy
on building sector stewardship. Staff do not support lowering the levy, as
the money collected could be used more effectively providing guidance,
training and systems to support the building sector.
|
|
Recommended council
response
|
· Do
not support reducing the building levy
· Support
expanding the way in which the chief executive of MBIE can use the levy to
include stewardship
· Request
that stewardship activities be further defined to include authorisation to
use the levy on areas such as national investigations of building and
construction practices and products
· Use
some of the $43 million to set up an independent Crown entity to manage a
National Product Register
|
|
Additional suggested
responses to matters covered in discussion document
|
|
Topic
|
Discussion
|
Proposed
council response
|
|
Statutory
days
|
The current 20-day
Statutory Clock is not reflective of the diverse and complex nature of
current building designs and construction methodology
|
Adjust
statutory days to reflect different complexities of projects such as:
· 10
business days for a R1-R2 house
· 20
business days for a R3 – C1 house & C1 commercial buildings
· 30
business days for C2 buildings
· 40
business days for C3 complex buildings
|
|
LBP Building
Code exam
|
All LBPs should have a
common understanding of the New Zealand Building Code and specifically their
area of practise within the sector
|
Request that
MBIE introduces a mandatory Building Code exam
|
|
Universal
design
|
A universal
design approach recognises human diversity. It designs for life
scenarios, such as pregnancy, childhood, injury, disability and old age.
Universal design is design for inclusivity and independence. This means more
than just basic accessibility. It avoids having to retrofit or modify
buildings.
|
Introduce
universal design standards for residential buildings
|
Ngā whakaaweawe me
ngā tirohanga a te rōpū Kaunihera
Council group impacts and views
14. Consultation
was undertaken with the following council teams:
· Regulatory
Services (including Building Consents)
· Urban
Growth and Housing
· Legal
and Risk
· Chief
Planning Office
· Commercial
and Finance
Ngā whakaaweawe
ā-rohe me ngā tirohanga a te poari ā-rohe
Local impacts and local board views
15. The short
timeframes for consultation have not allowed for local board input to the
submission.
16. The proposals
have region wide application and do not affect particular local board areas.
Tauākī whakaaweawe
Māori
Māori impact statement
17. As noted, the
proposed submission will request that the Building Code is amended to
acknowledge that some Māori buildings and
structures such as Marae are developed using traditional construction
techniques.
18. Input has
been sought from council’s Māori Housing and Marae Infrastructure
Development projects.
Ngā ritenga
ā-pūtea
Financial implications
19. The proposals
contained in the consultation document do not alter the current financial
liabilities of the council.
Ngā raru tūpono me
ngā whakamaurutanga
Risks and mitigations
20. The proposals
contained in the consultation document do not alter the current risks and
liabilities for the council.
Ngā koringa ā-muri
Next steps
21. Staff will
progress the detail of the submission for final approval by the Mayor, Chair of
Planning Committee and Chair of Regulatory Committee
Ngā tāpirihanga
Attachments
There are no attachments for
this report.
Ngā kaihaina
Signatories
|
Author
|
Andrew Minturn – Meeting Demand Programme
Manager
|
|
Authorisers
|
Ian McCormick – General Manager Building
Consents
Stephen Town - Chief Executive
|
