Stephen Franks is a nationally known lawyer, expert in company and securities law, and law reform.
After early general practice he spent two years in the Office of the Ombudsmen then joined Chapman Tripp in 1979, became a partner in 1981 and served as Chairman of the firm’s National Board. He had six years in Parliament, then four back as a consultant with Chapman Tripp before establishing in July 2009 a specialty law firm, Franks & Ogilvie (Commercial and Public Law Limited) to focus on the intersection of government and commerce.
Stephen ran a vigorous campaign for election in 2008 as the National Party candidate for Wellington Central but the seat was retained by Labour.
He’s been a member of the Securities Commission, the Council of the IOD, and the NZ Stock Exchange’s Market Surveillance Panel. In 2009/10 he served on the Minister of Energy’s expert advisory group on the electricity market structure.
He advised the New Zealand Dairy Board on the route to the creation of Fonterra, the Ministry of Commerce in drafting the Electricity Industry Reform Act, Telecom New Zealand during its privatisation and initial international public offering and the World Bank on legal aspects of corporatisation and privatisation.
Other current interests include a 2,000ha manuka and grazing block, mountain biking, and kayaking. Stephen is married to Catharine and they have four young adult children.
Recently the Otago Daily Times reported Wanaka resident Dean Rankin had launched a petition to the Local Government Commission asking them to investigate options for Wanaka and Upper Clutha to secede from the Queenstown Lakes District Council.
The petitioners believe the District Council is too ‘Queenstown-centric’, and that the Council’s management of development and infrastructure for Wanaka and Upper Clutha has fallen by the wayside despite their rapid growth. The petition now has the required number of signatures for the Local Government Commission to launch in investigation into whether it is desirable to reorganize local government in the region.
In 2015, Franks Ogilvie acted for Auckland’s Northern Action Group, who similarly wanted North Rodney removed from Auckland Council control. They successfully challenged the Commission’s decision not to assess the Group’s application because it was not of public interest. The Commission was ordered to reassess the Group’s application and give the Group an opportunity to present its case with greater detail. The Group challenged the Commission subsequent findings that reorganisation was not the preferred option in 2019, but was unsuccessful.
Legal requirements and steps for reorganisation
The Local Government Act 2002 sets out the powers and duties of local governments, specifics on how they are to be run and how local governments can reorganize. While the primary provisions for giving effect to reorganisation are housed in Part 3 of the Act, most of steps in the legal process are detailed in Schedule 3 of the Act, and is carried out by the Local Government Commission.
One - Initiative or petition
The reorganisation process is initiated when the criteria under Sch 3 cl 3 of the Act are met. Either the Minister for Local Government or an affected local authority proposes a “reorganisation initiative”, or the Commission receives a petition of 10% of electors from a given area requesting an investigation. The request must contain all the necessary criteria listed in cl 4.
Upon receiving an initiative or request, the Commission decides whether to undergo an investigation having regard to mandatory considerations under cl 6, such as the cost of an investigation, and the likely improvements that may result from an investigation.
The Commission then gives notice of its decision.
Two - The Commission undertakes an investigation
The Commission then establishes an investigation process under cl 7. The process document details the instigation, its timetable, the key stakeholders, and how members of the effected community will be consulted.
The objectives of the investigation are listed in cl 10. Considering them, the Commission assesses the desirability of reorganisation or whether the status quo should be maintained. These objectives include better fulfillment of local representation, and effectiveness and efficiently of local authorities.
The Commission may request the assistance or consult anyone it considers appropriate in coming to its determination under cl8.
Three - Reorganisation Plan
If reorganisation is deemed preferable, the Commission can develop a ‘reorganisation plan’ under cl 12. An adopted plan must detail the requisite matters listed in cl 14.
Where the reorganisation plan is developed by the Commission, the plan must be polled among the electors of the affected local government under cl 25. If more than 50% of the votes are in favour of the plan the Minister for Local Government must recommend giving effect to the plan in an Order in Council under s 25.
If a local government develops its own plan, it is required to conduct public consultation while developing it. The local government then submits the plan to the Commission for approval under cl 22C.If approved, the Minister must consider whether recommend giving effect to the plan in an Order in Council under s 25.
Four - Implementation Scheme
Finally, the Commission prepares an ‘implementation scheme’ under cl 41, which sets out how the reorganisation plan will be implemented. A scheme is then given effect by an Order in Council under s 26. Afterwards the affected local governments are reorganised.
Transition bodies
“Transition bodies” may be set up when an Order in Council gives effect to a reorganisation plan under cl 34. They undertake the responsibilities given to them by the Order in Council and work with the Commission by giving effect to its decisions. These bodies can continue to operate until the implementation scheme is completed.
There is no set time, but the process can take up more than three years to complete. For example, the West Coast underwent reorganisation in 2019 after the Commission first receiving a request in2015. It is unlikely that Mr Rankin and his petitions will see a Wanaka secession before the next local government election.
If you would like further information on local government reorganisation, please contact Director Stephen Franks.
Director Stephen Franks joined RNZ's The Panel to discuss the issues of the day including gender neutral lego, the problems with legal aid, and the vaxathon.
You can listen to Part 1 and Part 2 of the Panel by clicking here.
The 'Wanaka couple' attracted a lot of media and social media attention for their escape from lockdown in Auckland. Director Stephen Franks wrote on his blog about the decision to seek name suppression -
Today the Free Speech Union issued a media statement over my name, opposing name suppression for the Auckland couple charged with a cunning escape from level 4 lockdown, to Wanaka via Hamilton.
Stuff had reported their QC as saying she was preparing to apply for name suppression.
I was happy to comment. In my opinion name suppression and the common secrecy of our courts are a blight on justice and an affront to freedom of speech.
The courts should not have power to grant name suppression.
Here is the provision they apply (grounds in bold) from the Criminal Procedure Act 2011:
Section 200 - Court may suppress identity of defendant
(1) A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.
(2) The court may make an order under subsection (1) only if the court is satisfied that publication would be likely to—
(3) The fact that a defendant is well known does not, of itself, mean that publication of his or her name will result in extreme hardship for the purposes of subsection (2)(a).
(4) Despite subsection (2), when a person who is charged with an offence first appears before the court the court may make an interim order under subsection (1) if that person advances an arguable case that one of the grounds in subsection (2) applies.
(5) An interim order made in accordance with subsection (4) expires at the person’s next court appearance, and may only be renewed if the court is satisfied that one of the grounds in subsection (2) applies.
(6) When determining whether to make an order or further order under subsection (1) that is to have effect permanently, a court must take into account any views of a victim of the offence conveyed in accordance with section 28 of the Victims’ Rights Act 2002.
The claimed reasons for name suppression are often trumped up. In this case there are five good reasons to ignore sob stories:
Our community cohesion, our collective effectiveness against contagion, depend on feeling the restrictions are fair. Name suppression creates suspicion that the rules don’t mean what they say, that the elite don’t believe they are truly important. Name suppression shows what the elite really think, that embarrassment for them is more weighty than the cost of lockdown, and the health risks of Covid spreading.
We need to see fair rules applied evenly.
Finally, freedom of speech is our freedom to know things our masters would rather keep secret. Everyone close to the couple will by now know who they are. We the public should know. Freedom of speech is our right to know, not just Stuff’s right to tell us. Free speech protects us from powerful insiders. We need to know to be confident that we are indeed equal before the law. That applies just as much before a trial as after. If they are acquitted because a charge has not been proved beyond reasonable doubt, we should still be free to make up our own minds about the morality of their conduct, even if the state rightly cannot impose a punishment.
And if they are guilty but sorry, to show they have learned a lesson, true remorse or contrition would have them reject name suppression. People charged who hide behind an application that is a byword for dodgy privilege should not expect us to respect them.
If you would like to understand more about this issue, please contact Stephen Franks.
