Tuesday, 17 March 2020
Bills
Local Government (Whittlesea City Council) Bill 2020
Local Government (Whittlesea City Council) Bill 2020
Introduction and first reading
That I introduce a bill for an act to dismiss the Whittlesea 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. 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) (01:07): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Local Government (Whittlesea 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 (Whittlesea City Council) Bill 2020.
In my opinion, the Local Government (Whittlesea 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 (Whittlesea City Council) Bill 2020 (Bill) proposes to dismiss the Whittlesea City Council (Council) and provide for the appointment of administrators for the Council. This follows the recommendations in the report of the municipal monitor, Yehudi Blacher, who I appointed to the Whittlesea City Council under section 223CA of the Local Government Act 1989. The report recommends the dismissal of the council for a period ending no sooner than the 2024 Council elections.
The municipal monitor provided me with his report on 11 March 2020. The municipal monitor states that, based on his observations, council governance has collapsed at the City of Whittlesea. The report notes that the Council’s deep factional divides and personality conflicts have rendered it dysfunctional and that behaviours both in the council chamber and outside it have undermined good decision making.
The municipal monitor concludes that the present council cannot deliver the good governance needed by the City and its administration and that there needs to be an extended period of administration to enable good governance to be restored.
As such, I seek the dismissal of elected councillors at the council to enable the administrators to develop, implement and publicly report on an action plan to embed good governance at Whittlesea City Council.
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.
As a result of a recommendation by the Chief Municipal Inspector, I appointed Yehudi Blacher as a municipal monitor to the council on 13 December 2019. He was required to monitor the council’s governance functioning, processes and practices and report to me.
In summary, his report found that council governance has collapsed at the City of Whittlesea, along with its reputation. The Council’s deep factional divides and personality conflicts have rendered it dysfunctional, the Council’s behaviours have undermined good decision making and these behaviours collectively have been damaging and harmful to the Council’s administration and the City’s reputation. The monitor found that the present Council cannot deliver the good governance needed by the City and its administration.
Accordingly, the municipal monitor recommends that the council be dismissed and administrators appointed for a period ending no sooner than the 2024 Council elections. 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 there needs to be an extended period of administration to enable good governance to be restored.
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 the general council elections in October 2020. This is to enable a thorough embedding of good governance policies and procedures at the council, and the development, implementation and reporting on an action plan to embed these processes.
In response, the Bill dismisses the Whittlesea 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 period of dismissal to enable administrators to effectively address the governance failings identified by the monitor.
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 Whittlesea 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 Whittlesea City Council.
The municipal monitor, Yehudi Blacher, was appointed on 13 December 2019 under section 223CA of the Local Government Act 1989 (the Local Government Act) to monitor the Whittlesea City Council’s governance functioning, processes and practices. This appointment was in light of concerns raised by the Chief Municipal Inspector about the activities and actions of the councillors at the council and their ability to provide leadership and good governance for their community.
In accordance with the municipal monitor’s terms of reference, Yehudi Blacher was required to provide an interim report by 27 March 2020 and a final report by 30 June 2020. However, due to the urgency identified by the municipal monitor for a final report to be submitted sooner given the ‘collapsing governance’ of the council, I have accepted and tabled the monitor’s final report to ensure full transparency of the monitor’s findings and process.
The monitor’s report raises serious concerns about governance at the council. Mr Blacher reports that the council has been broken by years of internal division, factionalism and personality conflicts. According to the report, the division between councillors runs so deep that there is little prospect of ever resolving these differences, and as a result the council’s governance has irretrievably collapsed and the council has been rendered dysfunctional.
Mr Blacher further notes that some councillors appear to be comforted by the fact that, notwithstanding their endless feuding, the council continues to meet its service and statutory obligations. This, according to the report, is largely due to the resilience and professionalism of the council administration and councillors ignore the damage to the good governance of the council and reputation of the City of Whittlesea.
The monitor also notes that the council has had five Chief Executive Officers in five years and that this has been destabilising for the council. The monitor notes that the recent dismissal of the former Chief Executive Officer of the council, Mr Simon Overland, has had considerable impact on the administration. During his tenure, Mr Overland introduced a revised Protocol for Councillor and Council Staff interaction designed to stop inappropriate councillor interventions and interactions between councillors and staff. According to Mr Blacher, from the perspective of staff the Protocol created a safe place to work, however for several councillors, it was seen to restrict and delay the timely provision of information. A recently completed survey of the organisation shows that staff morale is at a very low ebb.
Mr Blacher also points out that in an eleven-member council, with factions split six to five, it takes but one councillor to change sides for power to shift from one faction to the other. He also states that there is a single-minded pursuit of the mayoralty given the factional ascendancy that goes with it, further damaging good governance at the council.
An independent report completed in November 2019 by a consultancy firm commissioned by the council, identified many instances of lack of professionalism by councillors both inside and outside the council chamber, including threatening and aggressive behaviour, stonewalling, shaming, insulting and manipulative behaviour. According to the monitor, the behaviour became commonplace, and continued unabated, highlighting the failure of councillors to use the systems available to them to hold each other to account to the statutory standards of conduct required of them.
These behaviours of councillors and the erosion of governance at the council has also come to the attention of the Local Government Inspectorate, who has a number of active investigations relating to the council underway.
The monitor’s report concludes that there is little prospect that the behaviours of the majority of councillors can change. The deep factional divides and personality conflicts that have long beleaguered the council have rendered it dysfunctional. Councillors’ behaviours both in and outside the council chamber continue to undermine good decision-making, and have been damaging and harmful to the council’s administration and reputation.
Accordingly, the monitor recommends dismissal of the council and the appointment of administrators for a period ending no sooner than the October 2024 general elections for local government, to enable good governance to be restored at the council. Mr Blacher has also recommended that the administrators develop and publicly report on an action plan to embed good governance at the council during this period.
The Bill provides for the next general election for the Whittlesea 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; and
• provides sufficient time for the administrators to implement the monitor’s recommendation to embed good governance at the council.
Dismissing a council by Parliament is the most extreme 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 at the Whittlesea City Council.
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 at Whittlesea City Council.
I commend the Bill to the house.
Mr T SMITH (Kew) (13:07): I move:
That the debate be now adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned until later this day.