Local Government (Greater Geelong City Council) Bill 2016

Ms DUNN (Eastern Metropolitan) — I rise to speak on the Local Government (Greater Geelong City Council) Bill 2016. As I stand here I certainly do not want to defend bullies and I will not be defending bullies, but on the other hand sacking entire councils should be the very last resort. My contribution sits in that space. It is the intersection of natural justice and procedural fairness, with strong immediate action to prevent and punish bad behaviours.

There are a number of questions I want to explore today. They are: what measures could the government have taken once it was alerted to the bullying and breakdown in governance? Which measures might have tackled the problem and brought the mayor and unnamed councillors to account before now? Which measures might have supported the mayor and unnamed councillors into better behaviour? Which measures would have created an incentive for the mayor and unnamed councillors to address the allegations against them? Which ones would also have given them a fair hearing? How could the government tackle the bullying and inappropriate behaviour by the Geelong council for staff, not just for councillors, because that is clearly a feature of the report from which this bill flows. If action needed to be taken quickly, what is the fastest way that action could have been taken by the government? Most importantly, what action could the government have taken to stop the bullies while supporting the councillors who have behaved well, because not all councillors on the Geelong council are bad.

At every stage there was an alternative for the government; at every stage another action could have been taken that would have provided certainty and would not have provided the mayor of Geelong with a platform to dismiss the government's sacking as political. The government has handed the mayor that excuse, because even though the government's actions may be sincere, bypassing a fair hearing always looks political. The mayor is using this situation to rebrand himself as the victim of a political power play and diminish the seriousness of the allegations made about him. He is on the front page, where he likes to be, talking about how great he thinks he is, which is what he likes to do.

If the government had wanted to give the mayor a platform, it could not have picked a better process than this. If the government had wanted to bolster popular support for the mayor, then this is the ideal mechanism to do so. If the government had wanted to have allegations of bullying and misbehaviour resolved, it could have used the new antibullying powers in the Local Government Act 1989.

I turn now to the sacking of good councillors because, sadly, the good have been swept up with the bad. The mayor is not the only one who is sacked, nor are the unnamed councillors whose behaviour was inappropriate; good councillors are also sacked. It is manifestly unfair to sack good councillors in any circumstance, let alone in a situation where they are demonstrating good behaviour despite a toxic culture. It is unfair to the councillors and unfair to the community which elected the councillors.

It is doubly unfair that none of the councillors is named in the report, so good councillors simply cannot clear their names and are tarred with the brush of those badly behaved councillors; they will never be able to clear their names. To make matters worse, the sacked councillors whose bad behaviour led to the report's adverse findings are able to use this uncertainty to paint themselves as innocent; they have not been named. Once this bill passes and they are no longer councillors, there is no reason to believe they will ever be named. They can continue to use the cover of doubt to avoid any sanction.

Any person reading the report of the commission of inquiry will perceive that this report and the commentary around it as applying to all councillors. This is patently incorrect and an injustice to those good councillors who served the City of Greater Geelong. A more appropriate process would have brought their behaviour to light; they might have even been elected again. What we need to remember in this matter is that there are two sides to every story and indeed 100 truths. Sometimes councillors who defend victims against bullies make themselves the targets of those very same bullies.

I turn now to lessons from Brimbank, because there are many. The suspension and sacking of Brimbank City Council should have taught us a lesson, but the government has not learnt it. Residents of Brimbank have been paying their rates each year, without having any democratic say about how those rates are spent, for seven and a half years now. It will be eight years before they finally get to vote, eight years without local representation, and that is a poor outcome for local democracy and local representation.

The lesson should have been to take early action on bad councillor behaviour instead of simply describing it in reports. There are alternatives, and these alternatives could have been taken. One of those is early action via councillor conduct panels. We thought the government had learnt the lessons from the Brimbank council matter, because last year the government introduced new powers and processes to deal with governance problems, including bullying. The Greens supported those new powers. What we cannot work out is why the government would go to the trouble of introducing those reforms and then deliberately work around them.

If serious allegations like bullying are upheld by a councillor conduct panel, the consequences include being suspended as a councillor for six months and being ineligible to be a mayor for four years. Everyone gets a fair hearing. There is an ability to appeal the decision of the panel to the Victorian Civil and Administrative Tribunal. Nobody gets national media support for saying it is a political sacking. The other advantage is that councillors who are behaving badly are picked up early. They are supported into better behaviour, and if they do not comply, they are out. This is a better outcome for the people who have to work in a toxic environment, because the problem gets addressed sooner.

It is really important to understand the framework that is in place. The council, a single councillor or a group of councillors may call for a councillor conduct panel. In terms of the findings of that panel there are certain courses of action. If it is remedial action, there is a recommendation for mediation, training or counselling. If it is misconduct by a councillor, the consequences of that are reprimand, apology, leave of absence for a maximum of two months or ineligibility to be mayor for a maximum of four years.

If that finding is of serious misconduct by a councillor, they will be ineligible to be a mayor for four years, and a reprimand or a direction that the councillor make an apology or take a leave of absence for up to two months could be the consequence. A suspension of up to six months is another consequence, as is ineligibility to chair special committees for a maximum of four years. They are serious consequences, and they should be, for misconduct and serious misconduct. Of course if the matter turns to gross misconduct, those consequences are far more serious, with disqualification as a councillor for a maximum of eight years and ineligibility to be a candidate in a local government election for a maximum of eight years.

So certainly the framework already exists to deal with bad councillors who may stray into the area of either misconduct, serious misconduct or gross misconduct. If the new governance powers did not work, the government could have suspended the council for up to 12 months plus the 100 days, instead of sacking it. Brimbank council was suspended by an order of council under section 219(2) of the Local Government Act 1989. The suspension took effect immediately, and I mean immediately. When rumours began to circulate that the council had been suspended, people rang the councillors to check, but they could not get through because the councillors no longer had access to their mobile phone accounts. The suspension was swift — immediate — and deliberate. Compare this with the Geelong council situation. Nobody has been sacked, they are all still councillors and the mayor is still the mayor until the commencement date of this bill.

In the Brimbank case the 12-month suspension gave the government time to introduce and debate a bill to sack the council. Looking at the time lines in relation to the suspension of Brimbank council, the order was published in the Government Gazette of 17 September 2009 and took effect from 15 September. Later the minister introduced a bill to dismiss Brimbank council and hold an election in 2012. As that bill was considered, debate ensued. In terms of it reaching this place — the Legislative Council — it was first read on 14 October and second read on 15 October, and debate was resumed on 11 November 2009.

At that time my colleague Ms Hartland attempted to amend the bill to move the date of election forward from 2012 to 2010 and to provide that the Local Government Act 1989 would apply to the election. Sadly that amendment was lost. The Greens have had a view that local democracy is important, local government is an important tier of the democratic process, and citizens should have access to representative democracy. So the issue of the date when democracy is returned to communities is a significant and critical one for the Greens.

We know in relation to process that no process is completely certain. If the government did look to suspend the Geelong  council in this case, it could not be sure whether the order in council would face a disallowance motion. But in the case of Brimbank council there was no disallowance motion. The bill to sack the council was introduced a month later; it took a month to pass both houses. In the meantime the government was able to get on with appointing an administrator; in fact it appeared to have one up its sleeve when it suspended the council. After the bill passed the government was able to appoint additional administrators.

In this case, with the City of Greater Geelong, if the government had used its powers to suspend the council for 12 months, then called an election within the 100-day period after that 12 months, the election date could have been somewhere around October 2017. Meanwhile the government could have considered the Victorian Electoral Commission's representation review, which was tabled in March this year. It recommended multimember wards.

I might now turn to the proposed amendments by the Greens in relation to this bill. There are two elements to our amendments, and they seek to do two different things. The first has the effect of bringing the election date forward to October 2017, which as I have just said, is the date an election could have been held if the government had suspended the council for the maximum period. It will also give the new Geelong council a full three-year term before the 2020 elections. There is no reason to delay an election beyond October 2017. In fact when we look at the commission of inquiry report, we see it did not recommend any date for the election, let alone one in 2020. None of the recommendations in the report is an action that can only be completed by an administrator; all the recommended actions can be continued by an elected council or during the term of an elected council in the case of an independent panel.

However, an earlier election date is necessary to address some of the report's recommendations. The report recommends multicouncillor wards to share representative responsibilities in order to address the problem of councillors being preoccupied with their wards rather than acting for the city as a whole. The report says it will strengthen council leadership, corporate behaviour and decision-making. The sooner we strengthen corporate behaviour and decision-making the better. Local representative democracy is fundamentally important to communities, and at no stage should that be delayed to those communities. The Greens will not support the bill if the election date is not amended to one that is far more appropriate for that community.

Our second amendment goes to the matter of deputy mayor. The Greens amendments remove all the changes in the bill that relate to the direct election of the deputy mayor. The model of direct election of mayor has likely contributed to the problem, so adding a directly elected deputy mayor is not going to help. This problem was predicted by my colleague Mr Barber in the debate on the reforms in 2012. A mayor gets elected on certain policies and promises, but he or she does not have the power to prosecute those policies unless the rest of council agrees to them. But the problem is that the councillors have their own platforms, different to the mayor's; some of them agree with each other and not with the mayor.

One of the key findings of the report is that:

A significant number of councillors do not accept or support the legislated model of a directly elected mayor or the mandate of the current mayor. Support for the mayor ebbed quickly following his election to the point where he has little or no support from councillors —

the report goes on to say. I add here that the authors of the report are not experts in electoral system reform. That is the Victorian Electoral Commission's (VEC's) job. The report does not make any really compelling argument in favour of the deputy mayor being directly elected, except that some people thought it would be a good idea. Meanwhile the Victorian Electoral Commission — which has expertise in electoral representation — has completed an electoral representation review for Geelong. It recommended multimember wards — three three-councillor wards and one two-councillor ward, making 11 councillors in addition to the mayor. A likely outcome from this is it will make the council more diverse and representative. The VEC made no recommendation for a directly elected mayor. I do not see why we should set aside the VEC's recommendations when the ink they were written with is barely dry, as its report was published only in March of this year.

The VEC review is focused on the democratic rights of voters. The purpose of an electoral representation review is to recommend an electoral structure that provides for fair and equitable representation for the persons who are entitled to vote at a general election of the council, whereas the commissioners did not have to consider fair representation for voters but were only recommending electoral reform in an attempt to stop poor behaviour by elected representatives. The VEC review was conducted pursuant to its requirements under the Local Government Act 1989. There was public information and there were submissions and a public hearing — an open process, as it should be. The report does not acknowledge the VEC's process was happening concurrently. I am not sure the authors were even aware of it when they made their recommendations.

The Greens amendment would also save public money because it would retain the legislative framework of the report that the VEC delivered a month ago, so it would not have to be repeated. The existing legislation already provides for a deputy mayor, including appointment, appropriate remuneration and so on. If you believed the explanatory memorandum, you would think those things were provided by the bill instead of having been copied across from the existing position of deputy mayor. Currently the deputy mayor is appointed by his or her fellow councillors. The existing laws also provide for the deputy mayor to step in as acting mayor if the mayor is unwilling or unable to fulfil his or her duties. That is nothing new, despite what the explanatory memorandum indicates.

Mr Davis has talked about his amendments, and no doubt we will talk about them further in the committee of the whole. It is my understanding that the government is presenting a suite of government amendments too, which I will also address in the committee of the whole.

I want to talk briefly about governance and the role of councillors. There is something that makes me feel really uneasy when reading the report where it talks about governance, and that is that the issues are far more widespread than just in reference to the councillors. But this bill only recommends that the councillors be sacked. Why are members of the council administration not bearing some of the brunt? For those members who have read the report, the incident with the pregnant woman requesting shed ventilation and the manager's response with an axe is horrifying reading, at the very least.

The report says the administration has tolerated poor performance and underperformance, but councillors cannot manage the performance of staff. That would completely cross the lines in terms of governance. It is not something they should be doing, in the interests of good governance, and when you look at governance roles and responsibilities, you see that they simply cannot direct staff and cannot be responsible for the actions of staff. Councillors set policy and strategic directions and make decisions that they are legislated to make. It is up to the administration to implement those decisions. If the human resources systems are inadequate, which this report suggests, it is not the councillors' role to solve the issues around the human resources system; it is the CEO's role. The CEO appears to have been working in a bad environment, but that still does not make it the councillors' role. The only staff member a councillor can direct is the CEO, and that is only with the majority vote of councillors. Even the mayor cannot tell the CEO what to do without the majority support of their councillor colleagues.

The other element in relation to the inquiry that I think is harsh is that the council did not have a 20 to 30-year outlook plan. I am not denying a 20 to 30-year outlook plan is a good thing to have, but there is no statutory obligation for that council to have that 20 to 30-year outlook plan. If a 20 to 30-year outlook plan is such an important element of this, well, I would like to see the government's 20 to 30-year outlook plan and understand exactly how many councillors do have that sort of plan. And if it is really important, why is it not mandated in the Local Government Act as part of the statutory responsibilities of local government?

I want to turn now to the commentary made in the report about 'looking after my patch'. 'Looking after my patch' is synonymous with single-member wards not only in this council but across councils in Victoria. I say this having had experience as a local government councillor in a single-member ward. You cannot help, in that circumstance, but think that you are looking after your patch. It is incumbent on the CEO to ensure that you understand that you are there governing on behalf of the entire community of the municipality, but the reality is that there is a certain part of that municipality that is your patch and is even regarded colloquially as your 'patch'.

I think there is a difficulty in relation to single-member wards, which of course the VEC has highlighted, and that is why it has recommended multimember ward changes to Geelong. There is an added difficulty for Geelong in that it has the overlay — and it may be a fortunate overlay for that council — of having marginal federal and state seats that cover the municipality. That means that it has the good fortune of probably a lot of commitments in relation to elections, where it might get funding for certain projects. That makes it very difficult for a council to plan in relation to its long-term financial plan, because it might find that all of a sudden it needs to reallocate its funding model because of a certain election commitment, because it is a marginal seat, and then that commitment actually flows to council but requires some funding from the council itself. That is a complexity, and I think the report really does not take into account the complexities around single-member wards, looking after your patch, the marginality of those seats and how the election commitments at those other tiers of government actually influence the planning, particularly the financial planning, of Greater Geelong .

In closing, it is important that bad behaviour is addressed, and the report describes much of that behaviour. We query the mechanism used and believe that it is pivotal that democracy is restored to the community of Geelong as soon as it possibly can be. There are many matters that need exploring, and I will certainly be doing so through the committee of the whole.