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.
The letter was written for a group of Hutt people dismayed by the Hutt City Council’s plans for a new kerbside collection scheme. Some became concerned by biased and incomplete disclosure by the Council in its required consultation with residents. Others have concerns about the loss of incentives for waste minimisation, or loss of choices about collection and bags and bins.
The consultation disclosure left out important options. It should have been balanced, fair and objective. Instead it was obviously intended to steer people into supporting one option apparently preferred by some Council officers and the Mayor.
Under those insiders’ preferred option Hutt households will lose their current Pay as You Throw choices among competing suppliers. Kerbside collection costs will be buried in rates. That reduces the natural reward to people who minimize their waste. Low waste producers will subsidise people who produce lots of waste.
The consultation, and the information provided to Councillors who made the decision, did not properly explain costs and risks. From what we have seen in thousands of pages of Council information obtained under the Local Government Official Information and Meetings Act, Councillors were likely to have been misled by significant omissions and wrong statements. Among the misleading claims was that Council had to make an urgent decision, because waste contractors would not offer bag collection after the middle of next year.
Many Hutt people will be aware that Councillor Milne has been trying to warn Councillors of the risks in the kerbside collection proposals. He investigated discrepancies in the information fed to Councillors (and the public), including that an end to bag service could not be avoided. That seems to have been intended to stampede Councillors. They were pressed to allow a seriously irregular process that pre-judged the outcome of the consultation. The Council asked contractors to bid on a closely specified new system at the same time as the Council was pretending to consider ratepayers’ views on other options, with an open mind.
Among the tender terms was a prohibition on tenderers talking to Councillors, exactly at the time that Councillors might want to hear from those who know costs and unexpected risks in the proposed new system. That prohibition was imposed despite the decision on tender success being expressly reserved to Council officers, away from Councillors. So Councillors were told they could not talk to the people in the best position to know of problems in the Council officer recommendations, allegedly because it could undermine the tender integrity, even though Councillors would not see the final tender assessments and would not be involved in awarding the successful tender.
On 6 October it was widely reported that Cr Milne had been found by an investigating lawyer (Chen Palmer)to have breached the Council’s Code of Conduct, and that the Council would be deciding on what to do about that at a meeting on Friday 9 October. See for example the NZHerald report. The report of the investigating lawyer confirms that the main current complaint was about Cr Milne’s enquiries to waste companies, checking the truth and balance and completeness of officer information to Councillors.
Given how closely the Code of Conduct complaint is related to the reasons for our clients' notice of an intention to ask the Court to intervene, our notice of intended court action is now made publicly available. You can read it here.
Members of the action group supporting the court application, and the applicant in particular regard Councillor Milne as having courageously withstood pressure to allow the pre-determined scheme for kerbside collection to proceed without challenge. Cr Milne’s explanation of his concerns about the information going to Councillors (and in consultation disclosure) circulated widely in the Hutt. The applicant in the intended action was among submitters in the consultation process who used Cr Milne’s warnings for their submissions.
In view of the news coverage of Chen Palmer’s bizarre conclusions on the complaints it is important for Hutt people to know that Cr Milne’s worry about legal deficiencies was well founded. We regard the conclusions as bizarre because the reporting lawyer expressly says he took no account of the context which in our opinion is vital. We are confident of that from our study of the Council information obtained under LGOIMA requests. No safe conclusion about the complaints could ignore that context.
Our clients are happy to enable Hutt people to access our letter to the Council to help them understand that context.
Our clients in authorising this do not purport to express a view on the secondary or ‘tennis club’ complaint. However, this firm regards the Chen Palmer opinion on that complaint as questionable in terms of its legal analysis.
Director Stephen Franks spoke last night on a panel about the future of the Wellington City Central Library. The building was unexpectedly closed in March 2019 due to earthquake risk and the Council has just opened up consultation on what should happen to the library.
To read more about the panel and what they thought, click here to read an article from Stuff.co.nz.
To understand more about the Wellington City Council's proposed options and to make a submission, click here
Principal Stephen Franks was interviewed by the DomPost for their feature article on tikanga's place in law. The issue has recently come up as the appeal of the Christchurch Civic Creche case goes before the Supreme Court. You can read Stephen's comments here