Stuff reports:

A high-flying Wellington lawyer has received a rare diversion after assaulting and kicking his wife, a decision slammed by Women’s Refuge for sending “the wrong message”.

The lawyer, who is a partner at a major Wellington law firm, was charged with male assaults female in the Wellington District Court, an offence punishable by up to two years in prison.

The police summary of facts states the lawyer pushed his wife twice during an argument and then kicked her four times in the buttocks.

Police policy is usually to automatically oppose granting diversion in family violence cases, as it is considered too serious an offence.

However, despite the policy, an exception was made for this lawyer.

Instead, he was asked to do counselling and, on Friday, the court said his diversion was complete and his charge was dismissed.

After Fairfax Media made inquiries about the case, the man’s lawyer also successfully applied for name suppression, claiming the case had no “public interest”.

It may (or may not) have been appropriate to grant diversion, but it is clearly wrong to grant name suppression. Escaping legal consequences should not mean you escape reputational consequences.

If he had been a lorry driver, would he get name suppression?

This is beyond cool. The kid gets tackled by security for running onto the ground, and ends up with Sonny Bill giving him his World Cup Medal. Have you ever seen a bigger grin on a kid?

The Dom Post reports:

They’ve built their lives on the back of books, but it may soon be time for Fay and Bill Far to close a chapter on their Island Bay bookshop.

The Fars’ bookshop, Island Bay Stationers, has been open for 43 years. They are ready to close up shop, but have not decided on a closing date.

Online shopping had caused many bookshops to close, but the reason for closing was simpler than that for the Fars. They were ready to retire.

I grew up in Island Bay and their bookshop was a big part of my childhood. I still pop in occasionally when in Island Bay for other reasons. Almost everyone in Island Bay knows the Fars.

Fay Far, 82, said she and Bill Far, 90, were “much too old” to be running the shop.

Now that is a work ethic – keeping your business going until you turn 90. Amazing.

The World Bank has released its latest annual report rating countries for the ease of doing business. NZ remains 2nd top.

The top 10 are:

1. Singapore 87.34
2. New Zealand 86.79
3. Denmark 84.40
4. Korea 83.88
5. Hong Kong 83.67
6. UK 82.46
7. US 82.15
8. Sweden 81.72
9. Norway 81.61
10. Finland 81.05

Bottom is Eritrea in 189th place on 27.61!

Stuff reports:

Giuseppe Malaponti, the charismatic Wellington maitre d’ and restaurateur, has died from liver cancer. He was 53.

Malaponti had dedicated much of his life to making sure others were having a good time, from serving the likes of Elton John, Princess Diana and Freddie Mercury at Le Caprice in London, as maitre d’ during Il Casino’s heyday, front of house at Hummingbird, and his own restaurant, MariLuca Ristoro.

I didn’t even know he was ill.

MariLuca Ristoro is one of my favourite restaurants in Wellington and arguable one of the best Italian restaurants in New Zealand. Great food, great wine and charming service. Giuseppe was a major part of that.

Malaponti, who was from Riva Di Chieri near the northern Italian city of Turin, was seconded to run the front of house for John Coleman’s Hummingbird restaurant when it opened in 2000.

His reputation preceded him in terms of front of house, and he had it “in spades, making people comfortable and [offering] service with a smile, always”, Coleman said.

Malaponti, who went on to open his own traditional Italian restaurant, MariLuca Ristoro, spoke modestly about his maitre d’ strengths when interviewed a few months ago, but said welcoming was very important.

“That smile, that approach, already wins you half the game. What you need is the food to be good, the rest is all done, and then you build friendship and trust.”

Malaponti, who died on Wednesday night at the Mary Potter Hospice, is survived by partner Isabel and children Marina, 15, and Gianluca, 12. 

Very sad for them. He was a real character.

The Burial and Cremation law may be an obscure area but it affects us all eventually. The Law Commission has just done final recommendations on some law changes. They include:

I thought it was Dan Carter’s last two kicks that won us the World Cup but that awesome last minute try was the icing on the cake.

What an awesome game and worthy World Cup Final.

The 34-17 score doesn’t reflect how very close it was in that second half until the very end. I got very nervous after the second Wallaby try.

Kudos to the Wallabies for an great match, but well done the All Blacks for retaining the World Cup led by the greatest rugby player of them all – Richie McCaw.

A nation celebrates.

Vernon Small writes:

The New Zealand navy has issued an invitation to the United States to join in the navy’s 75th birthday celebrations next year, potentially ending the 30-year freeze on military ship visits here.

However, sources said while an invitation had been issued, it was not yet clear that a ship would visit. It could be some other “asset” from the US Navy.

New Zealand’s nuclear free policy, enacted in 1985, bans nuclear-powered and nuclear-armed ships from entering ports here. The law change saw New Zealand suspended from membership of the three-power Anzus alliance with the US and Australia.

While the law requires the prime minister to confirm, to his satisfaction, that any ships are not nuclear armed or powered, it has in practice always required the US to drop their “neither confirm nor deny policy”.

The US has made it clear surface vessels are not nuclear armed, and it will be easy to ascertain from public records whether it is nuclear powered.

I hope they do visit. 99% of the world knows their surface vessels are not nuclear powered or armed. Having the NZ Government make a determination of the obvious is not a security issues. Time for the impasse to end – especially as NZ forces have worked with US forces in Afghanistan and Iraq.

Stuff reports:

Labour MP Chris Hipkins is calling for gun advertising to be regulated in similar ways to tobacco after a spate of shootings in New Zealand.

The member for Rimutaka has labelled a Gun City billboard in the Lower Hutt suburb of Taita “disgusting” and says New Zealand does not need an “American-style gun culture”.

We don’t have one. Far from it.

But does that mean a legal product can’t be advertised? Farmers need guns for pest control. Hunting isn’t my thing, but it is for tens of thousands of NZers.

And would you also ban paintball adverts, which also featured on the billboard?

He was not anti-gun or anti-gun owners, he said.

“I’ve visited the local rifle range and enjoy target shooting as much as anyone else. But just as we regulate the advertising of pharmaceuticals, tobacco and other things that can do significant harm, so too should we regulate the advertising of firearms.” 

They are regulated. They must comply with NZ law, and also the Advertising Standards Authority codes.

Hipkins posted on his Facebook page asking if gun adverts should be banned? He also asked other Facebook users what they thought.

Banning advertising of things we disapprove of is not a good thing.

From the Adelaide Advertiser:

My experience as a student magazine editor for the past year has shown me that freedom of speech no longer has de facto acceptance on campus. Universities are no longer a place of inquiry or rigorous debate. Academic censorship is rife.

Take Bjorn Lomborg, the Danish environmentalist who sought to establish a research centre at the University of Western Australia and Flinders University. At both institutions he has faced resistance form students who staged protests and leveraged their student bodies to prevent such a centre from being established.

Their rationale? They do not agree with his findings and they’re not prepared to engage in debate.

Lomborg’s situation is strikingly similar to that of Galileo when he posited that Earth revolves around the sun, and not vice-versa. The church was not willing to hear out the argument and simply cast Galileo out.

Absolutely. And Lomborg’s crime wasn’t even the capital offence of climate change denial, but simply having a view that other environmental issues were a better use of spending.

If anything exemplifies the dangers of academic censorship it is the case of Galileo. How do we expect our society to advance when new ideas cannot be discussed because of an unwillingness by some precious, self-centred students?

Sadly they don’t want to be challenged. They only want to hear views they approve of, and want to stop others hearing dissenting views.

These same students also want to limit free expression by mandating the use of “trigger warnings”, as well as censoring books they find uncomfortable or challenging. A “trigger warning” is a device that has emerged in the past two decades that seeks to warn a reader where a post traumatic reaction may be induced based on the content.

This has gone from warning of a discussion about rape to now including things such as ‘‘how many calories are in a food item’’ and “drunk driving’’. The discussion of these things doesn’t actually harm anyone, it’s just that students now demand to live in a cotton-wrapped world.

Great works such as The Great Gatsby, Metamorphoses and Mrs Dalloway have been banned from university reading lists simply because some self-absorbed students find the content emotionally challenging and upsetting.

There is no right not to be offended or even upset.

Green MP Catherine Delahunty has been a critic of the Gloriavale school, demanding it be deregistered. Gloriavale have responded by inviting her to visit them for the day, and she did so. Credit to both of them for the invite, and acceptance, as that is better than just firing off press releases.

Delahunty writes about the experience at Stuff:

The welcome my colleague and I received could not have been more open and hospitable despite the challenges I have made in the media about the breadth of their senior school curriculum and in particular the lack of options for girls.

I spent much of a full day at the Gloriavale community, talking, listening and being shown around their impressive facilities.

They even put on a show for us. And at the end of the day the women asked me if,  when I left, would I champion their community to the outside world. And in all honesty I had to say no.

Because as free as the adults of Gloriavale should always be to pursue the values they hold, my concern has always been about the rights of children, and in particular the rights of girls, to an education that allows them to think critically about their place in the world, and find their own voice.

Over the course of the day, two Gloriavale men, and several women gave us a tour of their midwifery rooms, early childhood centre, sewing rooms, schoolrooms and accommodation blocks as well the large new school they are  building out of a kitset of spruce timber.

We were served a lunch of local produce – mashed potato, beans, mushrooms, and a roast, and given litres of home-made sparkling apple juice, bread and cheese to take home.

Then we had a frank dialogue about the roles of women and the role of education. It was made clear to me that education is valued at Gloriavale, but in a functional way which prepares members to serve in the community they live in.

That’s probably a fair criticism. The school does educate them, but mainly to prepare them for serving in the wider Gloriavale community.

This community feels they are under attack by people like me and throughout the day the women and men I met did their best to share their vision of a safe, structured and practical world led entirely by men who consult with women.

I appreciated their generosity, their hospitality and their candour, but I also felt claustrophobic.

Later buying fish and chips in Westport we talked to a group of young women who had chosen to travel down from Rotorua to study deep sea fishing. I found their sturdy independence a relief.

Their world may not be so “safe” but they looked like they were living on their own terms.

I defend the right of Gloriavale to exist and have a private school so long as it meets the required standards. But that doesn’t mean I’d want my daughter to live there or attend it!

The Dom Post reports:

Wellington ratepayers will never be repaid a cent of the $10 million they loaned wildlife sanctuary Zealandia for its new visitor centre.

Instead, the building will be sold to Wellington City Council for the loan amount under a proposal by Zealandia, leaving ratepayers with the keys and a multimillion-dollar debt for a centre that failed to pay for itself.

The council says the handover will not affect rates.

While Zealandia had balanced its books in recent years, it had not started to pay back the $10.38m interest-free loan as planned.

Karori Sanctuary Trust board chairwoman Denise Church said on Tuesday its small profits meant it would never be able to pay off the loan or cover its interest.

“We’re producing an operating surplus – in the last year $31,000, and the previous year $25,000. We have no capacity with those figures to pay interest on the loan or to pay it back.

“We’ve advised the council over the last two years that we don’t see that situation being likely.”

If the council took ownership of its building and exhibition space, opened in 2010, the sanctuary would lease it back, which would pay for ongoing maintenance costs.

It’s good that Zealandia has now mad a surplus for the last two years.

The visitor centre was a horribly expensive white elephant that should serve as a warning to the Council over other projects such as the airport runway, that a policy of build it and hope they come is flawed.

It is obvious Zealandia will never make enough surplus to pay back the loan. Hence the Council has three main options:

• The status quo – loan never paid back
• Close down Zealandia for unpaid debt
• Swap the loan for the building

The last option seems the best (of a bad bunch).

Wayne Mapp blogs at Pundit:

On a recent Sunday I was at dinner in the restaurant in the old Seafarers’ building on Quay St, Auckland. Through big picture windows we looked out over the Waitemata harbour on a beautiful spring day. We could see the boats on the water, the houses sprinkled around the North Shore… but the entire foreground was dominated by hundreds of cars parked on Marsden Wharf, flanked by massive container cranes.

What a waste of one of the great harbours of the world.

Yep.

At the moment the entrance to our harbour is a massive container terminal, hardly what one expects of a world class city. Other cities including Sydney, London, and San Francisco have all shifted their major container port activity out of the city centre. Such a shift will still mean that cruise ships will continue to use the downtown terminals. And it will be easier to expand the ferry terminal. It is already reaching capacity at peak times.

We could do the same as these other cities, and we don’t need to wait 30 years to do so. It could be done in the next five to ten years, provided the city leaders had the ambition and gumption to do so.

A Mayoral candidate who campaigned on moving the Ports of Auckland could do very well.

There are 61 hectares in the Bledisloe Fergusson port precinct. It has a 2014 valuation of $365 million, which is $6 million per hectare. There are market valuations closer to $1.5 billion, based on the uses that the land could be put to as the prime entrance to the city.

Could be even more than that.

Imagine a waterfront with some spectacular commercial buildings, a stadium located at the back of the precinct to tie in with the Vector Arena, and some of the most desirable residential real estate in New Zealand. And perhaps something unique to showcase Auckland right at the entrance to Waitemata harbour.

Would be stunning.

Of course a new container terminal will be required, and they don’t come cheap; maybe $4-5 billion.

Both Tauranga and Marsden Port are too far away. A sea city like Auckland, growing to as many as 3 million people by 2050, needs its own port. There are realistic alternatives. Manukau Harbour, if the issues of the bar can be dealt with, or the Firth of Thames perhaps near Orere Point are options. There has to be enough land for expansion, and motorway and rail connections are required.

How do we pay the $5 billion that will be required? Well, nearly 30% would come from the sale of land at the existing container terminal. No doubt quite a lot of the existing infrastructure, cranes, etc. can be disassembled and shifted.

Does the City Council have to stump up with the additional $3 billion? The answer is no.

Just as other New Zealand ports have private capital, so can the new Port of Auckland. Some of the capital can be raised locally, there could an international shareholder with expertise in ports, and some of the funds can be borrowed.

Would be a great campaign platform for a Mayor and council ticket.

I’d also like to see this happen in Wellington. Move the port to Seaview, which is already an industrial zone, and free up the prime waterfront for entertainment, recreation and accommodation.

The Herald reports:

Former German football federation president Theo Zwanziger believes Swiss court documents indicate US$250,000 was paid to Oceania official Charlie Dempsey on the eve of the vote in July 2000 in which Germany won the right to stage the 2006 World Cup.

A court document in a trial of executives from the collapsed Swiss sports marketing company ISL show the sum was transferred to an anonymous recipient marked only as E16, according to a report in Germany’s Bild newspaper.

Zwanziger has presented reporters from Bild with the document in which it is suggested that former FIFA executive committee member Dempsey, the then Oceania confederation president from New Zealand, received the money as a bribe.

Zwanziger has written “Dempsey!” next to the payment made on July 5, 2000.

Next to a further transfer of $US250,000 dollars made a month earlier in a list of payments from ISL, Zwanziger has again written “Dempsey?”, but with a question mark instead of an exclamation mark, according to the document from 2012 published by Bild.

In the final round of voting for the 2006 World Cup on July 6, 2000, Dempsey, who died in 2008 at the age of 87, ignored the reported Oceania confederation instruction to vote for South Africa and abstained, allowing Germany to win a 12-11 vote against South Africa.

Possibly not enough for a conviction in court, but pretty  damning.

Can bank records find out who the money was transferred to? Or was it a cash withdrawal?

The Herald reports:

A New Zealand bid to establish the world’s largest marine reserve in Antarctica is a step closer after China agreed to support the project.

China is understood to be one of several countries which has previously blocked attempts to create the massive reserve in the Ross Sea, 3500km south of New Zealand.

This is very significant. The countries against were Russia, China, Japan, Norway, Chile and Japan. Getting China on board is a major achievement.

In order to secure its support, New Zealand was revising plans for the marine protected area (MPA), and would allow some research fishing to take place.

You need to compromise to get consensus. I just hope they define what level of research fishing is allowed, so it is not a huge loophole like the Japanese used with whaling.

The minister said Russia had also confirmed it was open to working with member states on an MPA ahead of the next CCAMLR meeting in 2016.

Like China, Russia has blocked the New Zealand proposal at past meetings.

Japan and Norway have also expressed concern about the permanence of the reserve, which prompted New Zealand officials to add a 50-year “sunset clause” which would allow it to be revised or scrapped.

The proposed MPA was originally 2.24 million sq km but was pared back in 2013 in a bid to gain support.

Russia will be the big obstacle, but sounds like they are coming around also.

The Ross Sea is known as the “Last Ocean” because it is the only intact marine ecosystem on earth, mostly untouched by pollution, overfishing, and invasive species.

This is why it is special. Like Antarctica itself, it is an untouched ecosystem which has huge benefits for scientific research. And blocking fishing in one area doesn’t decrease the amount of fish available for fishing – in fact it can increase it.

The Herald reports:

Of the All Blacks’ 412 victories since 1903, McCaw has been on the field for 32 percent of them. 140 wins in black to be exact.

That’s an incredible stat. Hopefully he’ll make it 141.

The ODT reports:

Last week, the Green Party asked Prime Minister John Key in Parliament to confirm or deny New Zealand’s support for Australia’s bid for a seat on the UN Human Rights Council.

Late last week Mr Key refused to confirm or deny New Zealand’s support, saying that was the responsibility of the foreign minister.

Green Party co-leader James Shaw said it would be wrong for New Zealand to support Australia’s bid for a seat on the world’s top human rights body when Australia had ”time and time again” been found to have breached international human rights requirements.

Australia is a paragon of respect for human rights compared to the vast majority of the Human Rights Council.

Why do the Greens beat up on Australia (whom of course we would support), and say nothing about Nigeria, Qatar, Morocco, South Africa, China, Saudi Arabia, Russia, Kenya, Pakistan, UAE, Venuzuela etc. These countries all have appalling human rights records that make Australia look saintly by comparison.

Personally I think the UNHRC is a sad joke. Less of a joke than its totally discredited predecessor, but its membership includes some of the worst human rights violators around, and it spends most of its existence condemning Israel. They have condemned Israel 57 times, and no other country has been condemned – at most countries like Sudan get a note of serious concern.

Their special rapporteur on Palestine is so extreme even Fatah have called on him to resign, as they see him as too pro-Hamas. He has posted anti-semitic cartoons on Facebook yet refused to resign.

And guess who has just been appointed the head of the UNHRC panel that appoints independent experts – Saudi Arabia.

The Herald reports:

National Party figures are behind a new ticket, Auckland Future, being set up to wrestle for control of the Super City at next year’s local body elections.

A Council that doesn’t increase rates by 10% would be a good thing, and that needs Councillors who will commit to spending restraint.

Joe Davis, a Browns Bay business consultant and National Party volunteer chairing Auckland Future, said the organisation was incorporated in September.

He said there had been a lot of conversation across the centre-right, including the National Party, about wanting to see Auckland run well, and with a vision.

“There is real widespread dissatisfaction with the current state of Auckland,” Mr Davis said.

“The city is too big and too important to have councillors voting in an ad hoc manner on key issues.”

Any ticket should have two to three key pledges that they can be held to account for.

Andrew Little to address the Scottish Labour party conference on Friday

— Andrea Vance (@avancenz) October 29, 2015

This would seem to be a case of the blind leading the blind?

Is Andrew Little hoping to find out how to get your party wiped out, losing every seat in Parliament bar one?

Or is Scottish Labour hoping to learn what it is like to get your lowest vote in 110 years?

Well the big losers of the debate were the CNBC moderators.  This was meant to be their entry into the big time, but instead they got criticised by many journalists, booed by the audience and attacked by the candidates. They showed why so many conservatives in the US distrust most of the media.

The big winner was Marco Rubio and as I said a few weeks ago I think a Rubio/Fiorina ticket could beat Clinton. Rubio was calm and confident and absolutely slam dunked Jeb Bush when he tried to attack him for being absent from the Senate so much.

Bush is the big loser. There were grumblings before this debate. He might not quite be toast but unless he can survive to the 4th debate and perform well there, I think it may be over for him.

Carson was not that engaged. Trump for once wasn’t aggressive and just had a pretty standard performance – which was good for him. People tire of just personal attacks after a while.

Chris Christie had a great moment when the moderators were asking if fantasy football markets should be banned ore regulated and Christie said why when we have $19 trillion in debt, have people out of work, ISIS and al-Qaeda attacking us, are you aksing us questions about fantasy football?. Huge applause.

Ted Cruz also had a great night by pointing out how so many of the questions from the moderators were just attacks in the guise of questions, and such a contrast to the Democratic debate.

I’ve been sent a transcript of what the Chief Executive of Wellington City Council told Councillors before they voted to impose an extra $2.4 million of costs on ratepayers by mandating security contractors must pay their staff the so called living wage. It is unbelievable that a majority of them ignored this advice.

It seems that if the Council decision is found to be unlawful, the Local Government Act allows for Councillors to be deemed to have personal liability for the costs of the unlawful decision, if they were warned it was unlawful. This could come back to bite them in a very costly way.

Here’s the statement:

Your Worship and Councillors it is a privilege to be your CEO. This is a very special City. A CEO’s job has many highlights. One of the most enjoyable is visiting staff who deliver on the front line.  In recent times I have visited the Botanic Gardens, Kilbirnie Sports Centre, the Policy and Engagement Team, City Archives and the Highways team working on the various schemes in Johnsonville. My job has a few lowlights too. You can’t have everything! One of my more difficult jobs is, very occasionally, having to tell you not what you want to hear but what you need to hear. This is one of those moments.

I have consistently advised against adopting the Living Wage. Please do not take my discomfort as a lack of concern over low pay. Last year two lifeguards in Kilbirnie Sports Centre valiantly tried to save the life of an elderly swimmer who had a heart attack in the water. Sadly the lady died but the actions of the lifeguards were praised by the coroner.  They did everything they possibly could have done to save her life but their actions were in vain. Lifeguards have a vital public safety role and sometimes they make the difference between life and death. These are really important jobs – arguably more important than mine or yours. It did not make me feel proud to discover that those two lifeguards were on the minimum wage. That was not our finest moment as a City Council.

You know officers had reservations about the Living Wage.  I will not go through these here as they have been well aired.  Notwithstanding these reservations your officers found a way to adopt the Living Wage first for Council staff and now for CCO staff. Our solution was to apply the Living Wage for workforce reasons only based on training and enhanced productivity. I have to be clear it was for workforce  reasons not to promote social equality. The latter would be unlawful.

This is crucial. Applying a “living wage” to your own staff can be justified as a legal use of ratepayer money, as it can have benefits for your own workforce. But applying it to outside contractors does not have the same rationale.

We are the only council in New Zealand to adopt the Living Wage. And we are way ahead of any other public sector organisation in the country. It makes me a little nervous being at the ‘bleeding edge’ and so far ahead of everybody else. You too should be nervous.  As officers we have been clear and straight with you. But we have also respected your right to make a decision and direct us. And we have been flexible and creative in finding a solution that has a low risk of legal challenge.

I hope that our ‘can do’ approach will be taken into account when you consider our advice on applying the Living Wage to the security contract. I know that many of you will not like this advice. Just as I respect your right to make a decision and direct me, you need to acknowledge my right and duty to give you professional advice without fear or favour.

I have consistently said that applying the Living Wage to contractors would be difficult. Each case will be different due to the nature of the work, the marketplace and our ability to bring work in-house or not. I decided to refer decisions on applying the Living Wage to individual contracts back to Council. This is because you are directing me to implement something I have major reservations about. It is therefore right and proper that you take full responsibility for your decisions.

That responsibility may include personal liability if found to be unlawful.

My decision to make the legal advice public was not taken lightly.  It is an unusual step but has happened before.  The advice is very clear cut – there’s a high risk of losing a legal challenge.

A high risk. And they went ahead.

This is the complete opposite of adopting the Living Wage for Council and CCO staff. Moreover, I am aware that there is contrary advice in the public domain that may lead you to conclude that the risks are lower than they really are. Unlike the advice in the public domain the legal advice to the Council is very specific. It is not about contractors generically or generalised savings, costs and productivity levels. It is about the WCC security tender in 2015 in New Zealand based on the actual prices and service levels offered by the preferred supplier.

So they have specific advice about this specific contract and that it is highly likely to be illegal.

But there is another, more important reason for making the advice public. If in your wisdom you decide to direct me to implement the Living Wage for the security contract you are putting me in a very difficult position as CEO.  In essence, you are asking me to implement something that is potentially unlawful.

No Governors should ever do that.

Moreover, we can expect someone to seek a judicial review should you adopt the Living Wage for the security contract. I would never, ever direct any of my employees to implement something that I know to be potentially unlawful. I have a duty as a good employer and I take it very seriously. You have that same duty towards me.  It is not a good look to direct me in the face of such clear and unequivocal advice.

Basically the Council are instructing a staffer to do something that is probably unlawful. No good employer should do that.

This changes the issue away from the Living Wage to your duties as a good employer to me. Given the seriousness of this I have taken separate legal advice about my position with another legal firm. As CEO I take my responsibilities to operate within a safe environment and the law seriously. Like you I am bound by the Local Government Act and my contract of employment with you states that I have to act within the law. The strong legal opinion before you is merely an opinion. It is not the law. A sensible compromise is to wait for the outcome of the judicial review before implementing a direction should that be forthcoming or directing me to the High Court to secure a declaratory judgement.  An implementation date of 1 July 2016 would help to give me the time to clear the legal hurdles. This is something I have discussed with the Mayor.  The legal advice to me confirms that this is a reasonable approach. This follows the spirit of your direction, protects the Council’s interests and is the correct moral path for me personally.

A sensible suggestion that they seek a court ruling on whether it is legal, before implementing it.

So my advice is simple – adopting the Living Wage for the security contract is a step too far. There is compelling evidence that you would potentially fail to meet your fiduciary duty to ratepayers. There is a serious risk that you would be acting beyond your powers. You would be purchasing the service for 19% extra without any corresponding improvement in service levels or productivity. You could also set a precedent for other contracts which would cost the Council tens of millions annually.  You would also be failing in your duty to me as a good employer. And you run the risk of tarnishing your reputation.  Could a responsible public body really make a decision against clear legal and officer advice only to be directed by a Court to reverse its decision? There is also a very real risk that your enthusiasm for expanding the Living Wage could undermine the good progress achieved with our own workforce. Remember that the WCC Living Wage adopted for our own staff and CCO staff has not been tested in a court of law. A successful judicial review on the expansion of the Living Wage to contractors may encourage further challenges on its adoption for our own workforce. A defeat here would have very serious consequences as the decision has already been implemented.

So it isn’t just $2.4 million more for this one contract. It could lead to tens of millions of extra costs over all contracts.

Mayor and Councillors I stand before you reluctantly with a very serious and loud alarm bell. My advice is to take heed of it, be responsible and support the officer recommendation.

They didn’t.

And here is why those Councillors may be in real trouble:

Local Government Act 2002

44   Report by Auditor-General on loss incurred by local authority

(1) For the purposes of this section and sections 45 and 46, a local authority is to be regarded as having incurred a loss to the extent that any of the following actions and omissions has occurred and the local authority has not been fully compensated for the action or omission concerned:

(a)money belonging to, or administrable by, a local authority has been unlawfully expended; or

(b)an asset has been unlawfully sold or otherwise disposed of by the local authority; or

(c)a liability has been unlawfully incurred by the local authority; or

(d)a local authority has intentionally or negligently failed to enforce the collection of money it is lawfully entitled to receive.

(2) If the Auditor-General is satisfied that a local authority has incurred a loss, the Auditor-General may make a report on the loss to the local authority, and may include in the report any recommendations in relation to the recovery of the loss or the prevention of further loss that the Auditor-General thinks fit.

(3) The Auditor-General must send copies of the report to the Minister and every member of the local authority.

46   Members of local authority liable for loss

(1)If the Auditor-General has made a report on a loss to a local authority under section 44, then, without limiting any other person’s liability for the loss, the loss is recoverable as a debt due to the Crown from each member of the local authority jointly and severally.

(2)If the members of the local authority or any other person or persons do not pay the amount of the loss to the Crown or the local authority within a reasonable time, the Crown may commence proceedings to recover the loss from any or all of those members.

(3)Any amount recovered by the Crown under subsection (2), less all costs incurred by the Crown in respect of the recovery, must be paid by the Crown to the local authority concerned.

(4)It is a defence to any proceedings under subsection (2) if the defendant proves that the act or failure to act resulting in the loss occurred—

(a)without the defendant’s knowledge; or

(b)with the defendant’s knowledge but against the defendant’s protest made at or before the time when the loss occurred; or

(c)contrary to the manner in which the defendant voted on the issue at a meeting of the local authority; or

(d)in circumstances where, although being a party to the act or failure to act, the defendant acted in good faith and in reliance on reports, statements, financial data, or other information prepared or supplied, or on professional or expert advice given, by any of the following persons:

(i)an employee of the local authority whom the defendant believed on reasonable grounds to be reliable and competent in relation to the matters concerned:

(ii)a professional adviser or expert in relation to matters that the defendant believed on reasonable grounds to be within the person’s professional or expert competence.

So the Councillors who voted against are okay. But the Councillors who voted for this policy could be in real trouble as they went against the advice of their chief executive and against legal advice so (i) and (ii) don’t apply. If a court finds this unlawful, I believe that there will be an attempt to seek the “loss” from individual councillors personally.

And having ignored their own Council’s legal advice, they can’t expect the Council to defend them in court. They’ll have to pay for their own lawyers, if the decision is found to be unlawful and they are pursued for the loss.