The Dunedin City council (DCC) never fails to amaze.
Its latest shambles is the almost unbelievable appointment of Cr Sophie Barker to an "independent" hearing panel into the heritage designation of private homes.
Her appointment is stunning in its audacity, but to also receive endorsement by Cr Andrew Whiley and Cr Jim O’Malley (ODT 5.5.25) is beyond the pale.
Curiously, the DCC seems to believe that a common precept of natural justice does not apply to the DCC.
It is as though it is a case of "don’t concern yourself with such a trifling matter as independence, as we are in Otago and independent hearings don’t apply".
Yes, they do, and here is why.
In 1930s, the Lord Chief Justice of England, Lord Hewart, sat hearing an appeal of a case where a clerk of a law firm involved in a case assisted their Lordships during their deliberations.
There was never any suggestion that the clerk acted inappropriately or with anything but the highest principled approach to his/her task.
Lord Hewart’s judgement has come down the ages from almost 100 years ago.
It said: "It is not merely of some importance but of fundamental importance that justice should not only be done but should manifestly and undoubtably be seen to be done".
Not only must you be independent, but you must also be seen as being independent. It therefore is not just a matter of approaching your task on a hearing panel with an open mind — the public must see the entire panel as being independent of any predetermination.
There would be few, if any, better advocates than Ms Barker when this important issue of heritage protection is discussed.
Cr Barker has been totally consistent over many many years in her approach to heritage and is therefore strongly associated with this issue in the eyes of the public.
Indeed, I would describe Cr Barker’s approach to heritage values as being almost operatic.
There is one small — sorry, large problem. Not only must an appointed panellist sitting on this or indeed any other issue be independent, they must be seen by the public as being independent, as per Lord Hewart’s judgement.
Nobody should ever be appointed to sit in judgement on the rules they helped to plan and write, let along publicly advocate for.
No parliamentarian can be appointed to a hearing panel or a tribunal to hear an issue that they themselves helped to debate and pass into law.
Councils, however, seem to think they can, which is why this issue remains within our council system.
One answer given to this writer some years ago as to the appropriateness of appointing councillors to hear issues they are closely associated with was: "It is cheaper for us to use councillors".
There is an absolute need to maintain public trust in the system of hearings panels or tribunal decisions. That trust is just as much a matter of perception as it is in reality.
There have been many famous cases where perceived conflicts of interest appeared to occur.
In an often quoted case, the wife of Lord Hoffmann (a judge hearing the case against Chilean dictator General Pinochet) worked for Amnesty International, which pursued the case against the defendant. The case was thrown out due to a perceived conflict of interest.
The abiding question for the public therefore is not in any way the advocacy of Cr Barker or her right and ability to give high-profiled and constant voice to heritage values.
It is the public perception of predetermination.
The DCC must retain or try to regain public confidence in its appointment processes of hearings panels by withdrawing Cr Barker and rehearing the entire process forthwith.
I might add that I never would have believed I would ever agree with formr mayor Aaron Hawkins on any matter at all, yet I find myself agreeing with his comment.
What is most concerning is not the councillors giving voice on this issue, it is the silence of the Otago Law Society on this important matter.
Perhaps a class action by the homeowners with heritage values against the DCC is the only way to stop injustice in this matter?
■Gerrard Eckhoff is a former Otago regional councillor and Act New Zealand MP.
