Tuesday, 18 February 2020
Bills
Local Government (Casey City Council) Bill 2020
Bills
Local Government (Casey City Council) Bill 2020
Introduction and first reading
That I introduce a bill for an act to dismiss Casey City Council and to provide for a general election for that council and for other purposes.
Motion agreed to.
Read first time.
Ms KAIROUZ: Under standing order 61(3)(b) I advise the house that the other parties and Independent members have been provided with a copy of the bill and a briefing. In accordance with the standing order I therefore move:
That this bill be read a second time immediately.
Motion agreed to.
Statement of compatibility
Ms KAIROUZ (Kororoit—Minister for Consumer Affairs, Gaming and Liquor Regulation, Minister for Suburban Development) (12:56): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Local Government (Casey City Council) Bill 2020.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the ‘Charter’), I make this Statement of Compatibility with respect to the Local Government (Casey City Council) Bill 2020.
In my opinion, the Local Government (Casey City Council) Bill 2020 as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The proposed Local Government (Casey City Council) Bill 2020 (Bill) proposes to dismiss the Casey City Council (Council) and provide for the appointment of administrators for the Council. This follows the recommendations in the report of the municipal monitor, Laurinda Gardner, who I appointed to the Casey City Council under section 223CA of the Local Government Act 1989. The report recommends the dismissal of the council beyond the October 2020 general elections for local government.
The municipal monitor provided me with her report on Tuesday 11 February 2020. The municipal monitor states that, based on her observations, there has been significant governance failures at the council, including in relation to the council’s statutory responsibilities under the Local Government Act. The report also notes that the councillors have failed to demonstrate a willingness to improve their ability to meet statutory obligations in the performance of their role as a councillor, including in relation to requirements for disclosing conflicts of interests.
The report also notes that the councillors have prioritised protecting their personal reputations in light of Operation Sandon, an Independent Broad-based Anti-corruption Commission (IBAC) investigation into allegations of corrupt conduct involving councillors and property developers in the City of Casey, rather than restoring public confidence in the council and protecting the interests of its municipality. According to the municipal monitor, the council is likely to be further distracted from performing its core business and further serious governance failures may be highlighted when the public examinations for the IBAC investigation resume in March 2020.
The municipal monitor concludes in her report that the council requires a thorough review of governance policies, procedures and processes, and significant work to repair the damage to the council’s reputation and standing in its community. In light of her findings, the municipal monitor recommends that the council is dismissed and administrators appointed for a period beyond the general elections for local government in October 2020.
As such, I seek the dismissal of elected councillors at the council until October 2024 to enable a thorough review and embedding of good governance policies, procedures and processes for effective council decision-making, and for the development of more diverse community leaders and greater participation in setting a vision for the City of Casey.
The proposed Bill dismisses the Council until October 2024.
Human Rights Issues
Human rights protected by the Charter that are relevant to the Bill
Taking part in public life
Section 18 of the Charter establishes a right for an individual to, without discrimination, participate in the conduct of public affairs, to vote and be elected at periodic State and municipal elections, and to have access to the Victorian public service and public office.
Clause 5 of the Bill clearly engages and purports to restrict the right under section 18 of the Charter.
The limitation appears to be reasonable and demonstrably justified in a free and democratic society under section 7(2) of the Charter Act.
The right to participate in the conduct of public affairs broadly relates to the exercise of governmental power by all levels of government, including local government. The right to be elected ensures that eligible voters have a free choice of candidates in an election and, much like the right to vote, is not conferred on all Victorians, but is limited to eligible persons who meet certain criteria. The processes for the appointment, promotion, suspension and dismissal of candidates and councillors are objective, reasonable and non-discriminatory.
In this case, the purpose of the limitation is to enable the restoration of good government at the council.
IBAC has been conducting an investigation called Operation Sandon which has a particular focus on allegations of serious corrupt conduct in relation to planning and property development decisions at the Casey City Council. As part of Operation Sandon, public examinations ran from 18 November 2019 to 6 December 2019, and will recommence on 2 March 2020.
As a result of Operation Sandon, I appointed Laurinda Gardner as a municipal monitor to the council on 27 November 2019. She was required to monitor the council’s governance functioning, processes and practices and report to me by 11 February 2020.
In summary, the report found significant governance failures at the council, including an embedded ‘avoidance culture’ among councillors which has enabled alleged bullying, intimidation, exclusion and other inappropriate conduct to go unchallenged. The municipal monitor notes that councillors are susceptible to ‘being led by more dominant characters’ and less likely to question and fully debate issues. This is further reinforced by the low level of transparency and accountability at council meetings to the extent agenda items are resolved ‘en bloc’ with no discussion. The municipal monitor also found that the councillors have failed to meet key statutory requirements under the Local Government Act and that there has been serious damage to the reputation of, and public confidence in, the council. The municipal monitor expressly states that she has no confidence in the ability of the council to meet its statutory obligations in the foreseeable future.
Accordingly, the municipal monitor recommends that the council is dismissed until beyond October 2020 and administrators appointed. This can only be achieved through legislation.
The serious nature of the monitor’s findings justifies the dismissal of the elected councillors. In addition, the municipal monitor notes that the councillors have failed to understand the core causes of their governance failings and continue to prioritise protecting their personal reputations in response to Operation Sandon, rather than properly performing their statutory role of councillor and protecting the interests of the City of Casey.
Removal of an elected council is always a matter of last resort and undertaken only in the most serious of circumstances. While it is regrettable that this is necessary, the Government has a responsibility to protect communities from governance failings by their local representatives.
The Local Government Act provides a less restrictive and more immediate measure, namely suspension pursuant to section 219(1). However, section 219 is not appropriate in this case because it provides for suspension for a maximum period of 12 months, indicating the provision is intended for circumstances in which a short interruption to elected representation will be sufficient to overcome the failures identified.
However, as the municipal monitor’s report demonstrates, the circumstances require the removal of democratic representatives beyond October 2020. This is to enable a thorough embedding of good governance policies and procedures at the council, and the development and implementation of a municipal wide program to develop more and diverse community leaders and greater participation in setting a vision for the City of Casey.
In response, the Bill dismisses the Casey City Council, and provides for a term of administration until the next general election for the Council in October 2024.
Under the Local Government Act, general elections for local government occur every four years in October. Despite this, the period of administration under the Bill is considered reasonable. This is in order to give effect to the monitor’s recommendation in relation to the next election of the council, to enable administrators to effectively address the monitor’s second recommendation regarding improving council decision-making and working with the community to develop new and diverse leaders, and to address any recommendations expected to be delivered by IBAC following its conclusion of Operation Sandon.
Importantly, the period of administration enables the council to return to democracy in line with the statutory timing of the next general elections for local government after October 2020, provides a full four-year term for the next group of elected councillors and is balanced against the community interest in having democratically elected representatives.
Privacy and Reputation
Section 13 of the Charter provides that a person has the right not to have his or her privacy, unlawfully or arbitrarily interfered with, and not to have his or her reputation unlawfully attacked.
Clause 5 of the Bill provides for the dismissal of the elected councillors, and therefore purports to restrict the right under section 13 of the Charter.
Any interference with a person’s privacy and reputation is lawful and not arbitrary in this case. The decision to remove the councillors from office follows the recommendation from a municipal monitor.
The serious nature of the issues identified at the council by the municipal monitor, as identified above, clearly warrant the immediate removal of the councillors.
The Hon Marlene Kairouz MP
Minister for Consumer Affairs, Gaming and Liquor Regulation
Minister for Suburban Development
Second reading
That this bill be now read a second time.
I ask that my second-reading speech be incorporated into Hansard.
Incorporated speech as follows:
This Bill will dismiss the Casey City Council and provide for the appointment of an administrator or panel of administrators in response to the recommendations of the report from the municipal monitor appointed to the Casey City Council.
The municipal monitor, Laurinda Gardner, was appointed on 27 November 2019 under section 223CA of the Local Government Act 1989 (the Local Government Act) to monitor the Casey City Council’s governance functioning, processes and practices. This appointment was in light of the public examinations conducted as part of Operation Sandon, an Independent Broad-based Anti-corruption Commission (IBAC) investigation into allegations of corrupt conduct involving councillors and property developers in the City of Casey.
IBAC’s public examinations as part of Operation Sandon commenced on 14 November 2019, ran until 6 December 2019 and are set to resume on 2 March 2020. The issues raised during the public examinations to date are alarming and identify serious issues in relation to alleged corruption, the provision and declaration of campaign donations, conflicts of interest, integrity and transparency of council decision-making, the role and use of lobbyists and the role of council staff.
In accordance with the municipal monitor’s terms of reference, Laurinda Gardner was required to report back to me by 11 February 2020. I have tabled the monitor’s final report to ensure full transparency of the findings and process.
The monitor’s report raises serious concerns about governance at the council. Ms Gardner reports that councillors have displayed a low-level regard for engagement with the communities they are elected to represent, which is a failure in one of the core statutory responsibilities of a councillor. She also notes a low level of engagement by councillors in strategic items required to be considered by the council, such as the Annual Plan. In fact, Ms Gardner finds that in response to the intense scrutiny by IBAC and the appointment of a municipal monitor, the councillors have prioritised protecting their own reputations rather than that of the City of Casey.
Further, she notes in her report that there is an embedded ‘avoidance culture’ among councillors which has enabled alleged bullying, intimidation, exclusion and other inappropriate conduct to go unchallenged. She is also of the view that the councillors are at risk of being ‘led by more dominant characters’ and therefore less likely to question and fully debate issues. This is further reinforced by the low level of transparency and accountability at council meetings due to the extent of agenda items resolved ‘en bloc’ with no discussion. Ms Gardner notes that ‘en bloc’ voting has contributed to very short council meetings, often under one hour, which do not feature an appropriate or sufficient level of consideration and debate of matters required for the effective governance of a large and complex organisation.
The monitor also notes that despite contemporaneous advice from the council administration and ample training opportunities, councillors do not appear to understand what is required in declaring conflicts of interest during council meetings, nor how to hold other councillors to account for undeclared conflicts of interest. This raises serious concerns that conflicts of interest are not being declared as required under the Local Government Act.
The monitor’s report concludes that there have been significant governance failures of the council, including in relation to council’s statutory responsibilities under the Act, that councillors have failed to understand the core causes of their governance failings, nor demonstrated any willingness to improve their ability to meet statutory obligations including in relation to conflicts of interest. She also found that there has been serious damage to the reputation of, and public confidence in, the council.
The monitor notes that the council requires:
• A thorough review of policies, procedures and processes to ensure the council has clear and appropriate decision-making roles and responsibilities in place, including how to manage councillor interaction with affected stakeholders; and
• Significant work to repair the damage to the council’s reputation and standing in its community, so that the community has a pool of high-quality candidates to choose from when electing their next council.
Accordingly, the monitor recommends dismissal of the council for a term that extends beyond the general elections for local government in October 2020 to enable:
• a thorough review and embedding of policies, procedures and processes for more effective decision-making and responsibilities; and
• the development and implementation of an extensive municipal-wide program to develop more and diverse community leaders, greater participation in setting a vision for Casey, and more awareness and interest in local democracy, the role of council and the responsibilities of councillors.
The issues raised in the report will not be resolved quickly and they raise serious concerns about the ability of the councillors to effectively govern the municipality. The current council has not demonstrated any willingness to remedy the governance issues raised and there needs to be a break in democratically elected representation at the council for a significant period to restore good government for the City of Casey’s community.
The Bill provides for the next general election for the Casey City Council to be held in October 2024. This period of dismissal:
• gives effect to the monitor’s recommendation in relation to the timing of the next election of the council,
• enables the council to return to democracy in line with the statutory timing of the next general elections for local government after October 2020,
• provides a full four-year term for the next group of elected councillors,
• provides sufficient time for the administrators to implement the monitor’s recommendation to improve decision-making at the council and working with the community to develop new and diverse leaders, and
• ensures that any recommendations delivered by IBAC upon its completion of Operation Sandon can be considered and effectively implemented.
Dismissing a council by Parliament is the most serious intervention by the state and is only undertaken in the most serious cases of governance failure. It gives me no pleasure that there is evidence that this is the current situation in the City of Casey.
Without this Bill, there is risk of further deterioration of the governance at the council and the probity, integrity and accountability expected of local government.
I have stated before and I remain resolute that the community and Parliament expect the highest standards of governance, probity and representation from their councillors and council staff. This Bill will ensure good governance, and confidence, is restored in the City of Casey.
I commend the Bill to the house.
Mr T SMITH (Kew) (12:57): I move:
That the debate be now adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned until later this day.