To: The Local Government & Environment Committee
ARTS CENTRE OF CHRISTCHURCH TRUST BILL
This Submission is made by Historic Places Canterbury (HPC) , an independent regional society affiliated to Historic Places Aotearoa (HPA). HPC is the NZHPT approved body which the Canterbury Branch Committee has transitioned to. Our objectives are the protection of heritage and providing local advocacy on heritage.
HPC supports the general purpose of the Bill to set out the objects and powers of the trust in legislation; to update, revise, and consolidate the governance arrangements of the trust; and to revise the winding up provision of the trust.
Changes to Governance
HPC supports the move to a skills based trust board. The original trust deed provided for a mixture of trustees appointed by the board and trustees appointed by nominating bodies. Over the years this split model had become a source of contention as successive boards altered the bodies that could appoint members, changes which tended to reduce “community” appointees. This resulted in a growing perception that the board had become increasingly unresponsive to the beneficiaries of the trust, the public. The appointment of trustees by nominating bodies also caused issues of perceived or actual conflict of interest and has not always resulted in the appointment of trustees with the necessary skills to manage such a complex and important asset. At the same time it is fair to say that in the years preceding the review of governance commissioned by the Board, there had been a growing public perception that the trustees appointed by the board (as opposed to the stakeholder appointed trustees) were appointed to maintain the views of a dominant group of trustees in what was seen as an increasingly factionalized and dysfunctional board.
The proposed appointment process strikes a good balance between the desires of interested groups to put forward potential trustees and the needs of the board to obtain trustees with the range of skills necessary for it to be able to function effectively. The restriction of the terms of office for trustees to 6 years (reduced from the previous possible nine year) together with the appointment of a smaller group of skills based trustees should help to reduce the risk of the board becoming factionalized or dominated by particular individuals. The appointment of two independent (non board) members to the appointments committee should help remove any public concerns about bias in the appointment process. The public notification of vacancies also provides the potential for being able to draw on a wider range of contenders for a position than might be known to either board members or interested organisations.
Although HPC has some reservations about paying trustees for being on the board (as opposed to simply reimbursing for expenses), on balance we feel that with the increasingly complex environment that the board needs to work in, this provision is acceptable. There is a danger that paying trustees will attract some of the wrong sort of contenders for a position but a robust appointment process should be able to deal with that. It also needs to be acknowledged that relying purely on volunteers considerably decreases the pool of available expertise for the board to draw on.
Annual Public meetings
HPC strongly supports this requirement (5(c) of the constitution). This policy is already being implemented by the current board and it goes a long way to rebuilding public trust and confidence in the board, which had been eroded by a number of decisions taken over recent years, culminating in the public debate over the music school.
Winding up provisions
The proposed winding up provisions overcome a significant weakness of the trust deed which allows the Trust Board, when winding up, to apply its assets to such charitable or educational purposes as it may think fit. The proposed change provides for the trust property to vest in the Crown as an interim measure, until a new entity is set up with charitable objects the same as set out in this Bill or as close to the same as possible. This is a clear improvement on the trust deed.
Provisions of the Bill that HPC would like to see modified.
Clause 4 Interpretation
The definition of the Arts Centre needs clarification. It refers to the land described in Schedule 1 and the historic stone buildings situated on the site. This definition raises ambiguity about the status of the one heritage listed building on the site which is not built of stone, the former Student Union building. The use of the term stone building has been carried through from the original trust deed but the Bill should be taken as an opportunity to remedy problems with the original deed, not to perpetuate examples of unfortunate wording. The definition should refer to the listed heritage buildings on the site or some such similar wording. Alternatively, schedule 1 could list the protected buildings on the site to clarify those which are and those which are not, such as the boiler house.
Clause 5 Objects
This is the key provision of the Bill, defining the purposes or objects of the trust. On the surface this clause may seem unexceptionable, having been taken directly from the most recent version of the trust deed. However in the deed it is directly preceded by a statement of the overall purpose for which the trust was established
“Whereas the Trustees have each subscribed the sum of $5.00 for the establishment of a charitable trust to provide a cultural centre for the people of Christchurch and elsewhere in New Zealand on the site formerly occupied by the University of Canterbury, and for the preservation of the architectural character and integrity of the historic stone buildings presently on that site.”
The objects of the trust (as now set out in clause 5 in the Bill) needed to be read in the context of this defining purpose for which the trust was established. That purpose remains in the long preamble to the Bill which sets out the historical background, but is lost in the detail so that the objects section now appears to define the trust. Yet when taken from its immediate relationship with the words quoted above it appears to have the perverse effect of demoting the importance of protecting the buildings, which comes last in the list of objects. It is the heritage buildings which make this a unique cultural centre. The dual purposes of preserving the heritage buildings and creating a cultural centre are, as Graeme Nahkies notes in his report, mutually interdependent and synergistic, but there is also a sequential relationship: without the buildings there is no cultural centre or at least it would be a very different sort of cultural centre and not such a one as would be likely to inspire the need for an Act of Parliament.
HPC believes that the Act needs to recognise this more explicitly. Clause 5(b), “fostering, promoting and facilitating involvement in art, culture, creativity, creative industries and education”, was clearly envisaged in the deed as a means of amplifying the sort of activities a cultural centre might involve. Because these objects are now disassociated from a clear statement of the purpose of the trust as occurred in the deed, it effectively gives greater prominence to the matters which logically need to be seen in the context of that over-riding purpose. It is possible to envisage educational uses, for example, that are not consistent with the purpose of a cultural centre. The section needs redrafting to state clearly the main purpose of the trust with other objects being identified as subsidiary to the main purpose. Alternatively a proviso could be added to 5(b) stating that these matters should be consistent with preserving and protecting the heritage buildings and holding and developing the site and buildings as a cultural centre.
An additional object could be added to the Clause 5; fostering, promoting and facilitating interest in the heritage values and history of the site. This is sufficiently distinct to be specified rather than being implied in the generic matters set out in 5(b).
The term creative industries used in 5(b) is perhaps rather ambiguous and might benefit from being defined in the interpretation section.
Clause 7 Powers
HPC believes that clause 7(c) which gives powers to construct, alter, pulldown and re-erect buildings needs to include a proviso that where the power relates to the heritage buildings it needs to be exercised in accordance with a conservation plan.
Clause 1 Membership of trust board and appointments
HPC believes that Clause 1(d)(ii) should be amended to specifically include Historic Places Canterbury. HPC is the successor to the Canterbury Branch Committee of the New Zealand Historic Places Trust. Before the branch committees were disbanded as part of the recent changes in legislation which saw NZHPT changed to Heritage New Zealand, it was the branch committee which had the right to nominate a member of the board under the terms of the deed.
Since this Bill was drafted a new support organisation, Friends of the Arts Centre of Christchurch Incorporated, has been formed and registered (1August 2014). Logically, this should also be included specifically on the list.
Clause 11 Remuneration of board members
Clause 11(c) needs to be amended to make it clear that in any case where a trustee (or employee or partner of a trustee) provides services, there should be an agreement in writing, the trustee concerned must be excluded from any discussion about the decision to pay them and the board must satisfy itself that it is in the best interests of the Arts Centre that a trustee is used to provided the service.
Employing a trustee raises issues of liability, accountability and potential conflict of interest, so it is important to document any agreement and to ensure the trustee does not participate in any deliberations relating to the appointment. In most instances it would seem likely that the CEO would be responsible for employing someone to perform a service and tendering or some other formal process would generally be preferred method of deciding who should be appointed, therefore it is important that the Board must be satisfied that appointing a trustee is indeed in the best interests of the Arts Centre.
Clause 11(d) The meaning of this clause is a little obscure. If the trustee does not personally have the expertise, it is not clear how a partner or employer could provide a service that the “board member could have done or provided personally.” If the member has no expertise but runs a business employing others who do, that situation should be covered by 11(c). If the clause is intended to refer to a spouse or non-business partner that should be made clearer. In any event, the provisos referred to in relation to clause 11(c) should also apply to this clause.
Conservation Plan and Strategic Plan
Clause 5(c) of the Constitution (Proceedings of the Board) refers to presenting a strategic plan to an annual public meeting. It would seem to be desirable to have a clause preceding this which explicitly directs the Board to adopt and from time to time review a strategic plan. Similarly, this or a separate clause should direct adoption and review from time to time of a conservation plan in order to be consistent with the objects of the trust as set out in Clause 5(d) of the Bill ). While this suggested change is perhaps not strictly necessary, it would be useful to have a clear and explicit sub-clause (or sub-clauses) setting out these requirements, which should be compulsory, to distinguish them from powers of the Board which are discretionary.
Thank you for the opportunity to comment on the Bill. I wish to appear in support of the submission.
Dr Lynne Lochhead Secretary HPC Canterbury
Address 7 Stratford St Christchurch New Zealand 8014