Guest Post – Ian Dunwoodie – Auckland Council Procurement Policy Review

By
Guest
-
0
38

April 18, 2026 – Auckland Council

Auckland Council has asked its staff to report back on its Procurement Policy, and how it aligns with UN frameworks concerning Israeli settlements.

A little while back I prepared an opinion after another Council did a similar review.

  • The key point was that Council, under its own Procurement Policy, had an obligation to act fairly. If that Council excluded a company from its procurement process just because it appeared on a particular UN List, that Council might be found to be acting unfairly.
  • This is because the method to compile this UN List fails to use a robust legal yardstick, but still invokes outcomes that are legal in nature. The compiling of the List raises the issue of fairness. (The Opinion, prepared in my personal capacity, is attached).
  • The Opinion concluded that that Council might be found to breach its own policy to act fairly. If so, it could risk being sued.

Auckland Council also has the obligation in its Procurement Process to act fairly (see Principle 4).

While looking into this matter, it would seem that Auckland Council should be mindful of the litigation risk if it excludes companies because they appear on this particular UN List.

 

October 29, 2024 – Christchurch City Council

Christchurch City Council may be in breach of its own policy & so risks litigation

The Christchurch City Council has changed its procurement policy.

Now it won’t deal with companies on the UN Human Rights Council Resolution 31/36 List.1

It seems this List may not have been drawn up ‘fairly’.

The CCC procurement policy requires “fairness”, but if it relies on this list, CCC may be acting unfairly.

If so, CCC may expose itself to litigation, like Airbnb has been exposed.

Wider Context at the UN

This Opinion does not consider the wider context at the UN.

But does note that the UN appears to have been politicised.

After World War II there were 50 UN nations, and now 193.

The current majority have little or no history of Western democracy.

As it grew, it has been politicised.

‘Fairness’ required in CCC Procurement Policy

The CCC procurement policy require there be equitable and fair opportunities for procurement.2 The CCC has a general public law obligation to act fairly and reasonably when making a procurement.3 The Local Government Act 2002 requires it to be done in accordance with sound business practices.4 The Office of the Attorney General advised CCC that it should consider general principles relevant to procurement by a public sector organisation – and that these include fairness.5

Change to the CCC Procurement Policy

The CCC has now changed its procurement policy so that generally it will not contract with the list of companies identified by the United Nations Human Rights Council as being involved in the building or maintenance of illegal Israeli settlements.6

As an aside, the CCC minute does not define illegal Israeli settlements – for example, it fails to refer to the Oslo Accords between the Palestinian Authority and Israel which provided a framework for competing legal claims in areas A, B and C of the West Bank; there are no Israeli settlements in Area A and B, and settlements in Area C are subject to Final Status negotiations under these Accords.7

The compilation of the UNHRC Resolution 31/36 List and ‘Fairness’

The UN Human Rights Council published a report in August 2024.8 It set out the method for compiling the List. It said the UNHRC makes factual determinations about whether a company should be added or removed from the List. It concedes this work does not and does not purport to constitute a judicial or quasi-judicial process of any kind, nor does it provide any legal characterization of the listed activities or business enterprises’ involvement therein.9

The method fails to use a robust legal yardstick, but still invokes outcomes that are legal in nature. This approach raises the issue of fairness.

The CCC Report considering change to the CCC policy seemed to acknowledge such concerns – it said in respect of the list of organisations listed by UNHRC it should be noted that [the] United Nations has been clear that the list is not comprehensive or up to date as they lack the resourcing to effectively maintain it.10 This raises questions about accuracy, and hence fairness, when relying on such a list.

Inconsistent approach to UN matters may be ‘Unfair’

To sheet home the lack of consistency and fairness a litigant might also bring to the Court’s attention other UN resolutions such as the UN Security Council’s Resolution 2653 Sanctions List. There is no sign they have led to a change in the CCC procurement process.11 Underscoring this point, MFAT has provided advice, drawn to the attention of the CCC, that UNSC Resolution 2334 does not impose positive obligations on any UN Member state to implement sanctions against those involved in such Israeli settlements.12

Possible Litigation ahead for the CCC

The CCC procurement process requires fairness. This is because of the CCC procurement policy itself, general public law obligations, general principles relevant to procurement by a public sector organisation, and it seems, requirements under the Local Government Act 2002. The fairness requirement raises issues about the method used to compile and maintain the UN Human Rights Council Resolution 31/36 List. This may mean that for the CCC to exclude companies from its procurement process just because they appear on this List, it is exposed to the risk of litigation. Off shore there has already been litigation involving such companies.13

References

  1. CCC Finance and Performance Committee – Minute 23.10.2024
  2. Policy Objectives, Para 9, CCC Procurement Policy 2018 (“2018 Policy”)
  3. Core Procurement Principles, Para 7, 2018 Policy
  4. Section 14 (1)(f)
  5. CCC Finance and Performance Committee – Agenda 23.10.2024.
  6. CCC Finance and Performance Committee – Minute 23.10.2024
  7. Oslo I, 1993 and Oslo II, 1995; https://ecf.org.il/issues/listIssues?topicIds=8&categoryIds=28#start
  8. Report A/HRC/57/21; dated 2 August 2024
  9. Ibid, paragraph 36
  10. Reference 24/1650150, paragraph 3.10 CCC Finance and Performance Committee – Agenda 23.10.2024.
  11. UN website; https://documents.un.org/doc/undoc/gen/n22/646/04/pdf/n2264604.pdf
  12. Attachment A, Item 7; CCC Finance and Performance Committee – Agenda 23.10.2024
  13. https://www.smartcompany.com.au/startupsmart/news/airbnb-westbank-lawsuit/

Ian Dunwoodie is enrolled as a Barrister and Solicitor of the High Court of NZ. These Opinions were prepared in his personal capacity.