2015-10-19
I rise to speak in the debate on the Local Government Amendment (Improved Governance) Bill 2015. This bill is designed to improve governance standards for our municipalities across Victoria, and certainly those municipalities should be based on robust democracy and open and transparent government and be accountable to their communities. Our councils and shires are the voices of our local communities and perhaps work more closely with local communities than any tier of government. Our councils and shires form a critical component of our representative democracy. Although having strong yet appropriate regulatory settings to support the good conduct of elected councillors is vital, supporting local government as a democratic institution is also vital.
As we know, and as we have heard already in other contributions to the debate, there are 79 councils across the state and several hundred councillors. It is very important that the members of the public have confidence in our councillors and the institution of local government, for local government across Victoria is responsible for the delivery of over 100 services to its community, for billions of dollars of local infrastructure and for providing human services to communities across the state.
Another critical role played by local government is that councillors are local leaders, a role that is particularly elevated in times of crisis and of natural disaster. Councillors play a key role in representing their communities. Most councillors do fine work the majority of the time, but a small handful have behaved inappropriately or sometimes illegally, and sadly, those councillors bring the entire sector down and mar the entire sector by bad behaviour.
This bill makes certain changes to continue to improve the governance requirements and procedures for councils. The Greens are not opposed to this and encourage representative democracy defined by integrity, transparency and accountability. However, it is equally important that appropriate checks and balances are implemented.
In terms of the bill before us, the Greens have some primary concerns. We are concerned that the proposed amendments have not been accompanied by sufficient consultation with the sector or with its peak bodies. In terms of the representation of local government, it is really important to bring local government peak bodies on the journey and consult with them in relation to this. There is a feeling in the sector that there has not been an appropriate level of consultation in relation to this bill. In terms of the bill, procedural fairness and natural justice may not be applied to investigations of councillors, and the Greens are concerned about that.
The importance of interpretation and due process in the definitions of misconduct, serious misconduct and gross misconduct are a critical element of this bill and in fact define those very matters into which councillors may stray. There are concerns around the interplay between the breaches of the code of conduct and definitions of misconduct, serious misconduct and gross misconduct; the impact on councils of the Victorian Electoral Commission’s election and enforcement expenses; the impact on councils and the community of an election period policy; and the legal protections for councillors who are the subject of claims of bullying. These are the overarching concerns that the Greens have with the bill, and I will certainly be exploring them further in the committee stage of the bill.
In terms of the bill, it will require newly elected councillors to make a declaration that they will abide by the councillor code of conduct. The bill clarifies the role of the chief executive officer; modifies the definitions of misconduct, serious misconduct and gross misconduct; provides additional obligations relating to the preparation and content of councillor codes of conduct; clarifies and extends the role of councillor conduct panels, including the capacity for panels to hear serious misconduct matters; increases the powers of the chief municipal inspector; allows the minister to seek an order in council to stand down problematic councillors; and makes changes to electoral processes for the forthcoming local government general elections scheduled for October 2016. In terms of some of the specific matters raised, there are a number of key issues for the Greens which will require further explanation during the committee stage of the debate.
Clause 6 of the bill provides a list of the three roles of a councillor and limits a councillor’s roles to the matters listed. However, clause 7 inserts new section 73AA into the principal act and takes a different approach in relation to the role of mayor, which is a more inclusive and not prescriptive list, so the Greens are interested in exploring that matter further.
Clause 12 of the bill amends section 3(1) of the principal act to insert a definition of bullying. The Greens support that insertion, and we note that the definition matches the definition at section 789FD of the commonwealth Fair Work Act 2009. However, there is an element of that definition that is different to the Fair Work Act in that it does not include an exception from the definition of bullying for reasonable management action carried out in a reasonable manner. We are concerned that that may impact on councillors in a way that it does not when it is applied in relation to employees under the Fair Work Act.
In terms of clause 12, the definitions of gross misconduct, misconduct and serious misconduct have been significantly modified. The overall effect of what the bill proposes is to remove the reference to a breach of the councillor code of conduct and the principles of councillor conduct from the definitions, and the Greens ask why anyone would do that when the code of conduct is such a critical part of the Local Government Act in terms of defining how councillors behave in representing their municipalities and their communities.
Clause 13 modifies the existing period of preclusion from being a councillor from seven years to eight years for councillors convicted of offences which would be punishable by a term of imprisonment of two years as opposed to five years under the current definition. The Greens are interested to understand why that change has been made.
In relation to investigating matters prior to the minister exercising the power to stand down, the Greens looked to clauses 36 to 44. We note the particularly short time frames involved and have some concerns about whether there will be proper resourcing in relation to the investigation of those matters because ultimately people’s reputations will be on the line. We would not like to see them impacted on in relation to untimely investigations or lack of resourcing in relation to that.
The Greens are also concerned about clause 36 of the bill, in particular the insertion of new section 219AC(5)(a) into the principal act, which only allows a councillor five days to respond to the findings in a municipal monitor’s report. During the committee stage of the debate the Greens will be exploring whether that accords with procedural fairness in relation to the bill.
Lastly in terms of the specific clauses I want to raise is clause 65, which deals with the preparation of an election period policy. The Greens certainly support the implementation of an election period policy. We have seen in the past bad practice in relation to councillors and publications. However, we have concerns about the decision making of councillors in relation to land use planning during the election period and whether they may be impacted adversely. As we know, planning is often an incredibly contentious issue. It is a matter that often raises the concern and detailed interest of community members, and we would not like to see that impacting negatively on a councillor or a community during the election period.
In terms of the code of conduct, we certainly agree that it is completely appropriate for councillors to sign on to a code of conduct. It is a very good physical way for councillors to understand that there is a code of conduct. We also support the notion of reviewing codes of conduct, particularly so that new councillors can own their code of conduct and understand the criteria around it.
In looking at codes of conduct generally I draw on my time as a Yarra Ranges shire councillor. The code of conduct at Yarra Ranges Shire Council stretched, I think, to some 12 pages and also included a code of ethics because governance was of great concern to us. I note curiously that the code of conduct for members of Parliament is one and a half pages of text. Perhaps we just need to bear in mind the impost we put on local government that we do not actually embrace ourselves.
In terms of the ability to stand down individual councillors, we support that as a good way forward because in the past we have seen good councillors sacked along with bad councillors. There have been three councils sacked in recent times, and I particularly want to draw attention to the case of Brimbank City Council. When Brimbank council was sacked, we lost a very fine community councillor, Geraldine Brooks. Cr Brooks was the Greens councillor there. She was a fine councillor. She did not do anything wrong, but by the nature of the legislation there was no option other than that she be sacked along with the rest of the Brimbank councillors. In her time at council she was often the only councillor asking questions about issues and officer recommendations such as contract submissions and policies. She constantly suffered a barrage of ‘Does the Greens councillor have another question?’. She was often the only councillor contributing to discussion and debate. She would speak to most issues while other councillors would either remain silent or use scripts that had been prepared for them. In the nine months she was a councillor at Brimbank she put at least 15 motions to the chamber stretching across a whole range of issues. However, at least two thirds of these motions failed because no one would second them, effectively blocking debate on them.
Mr Finn — They were too busy punching people in the gallery.
Ms Dunn — I can assure Mr Finn — —
Mr Finn — No, not her. I’m talking about the other councillors.
Ms Dunn — That is quite all right then. I am glad you clarified, Mr Finn, because I do not think the Greens councillor would be having a swipe at anyone in the gallery.
Honourable members interjecting.
The ACTING PRESIDENT (Mr Ramsay) — Order! I ask members to let Ms Dunn finish her contribution in silence.
Ms Dunn — In most cases the vote in the chamber was 10 to 1 against those proposals. Geraldine Brooks was a very good community councillor who was unfortunately swept up in the sacking of the Brimbank council, and that was to the great loss and detriment of that community. The Greens certainly support the ability of the minister to stand down individual councillors because it is often the case that an individual councillor is the root cause of problems. When we look at what councillors have been found guilty of, the reality is that of the hundreds of councillors in Victoria, one councillor has been found guilty of gross misconduct and two have been found guilty of misconduct.
I turn now to the amendments circulated by Mr Davis. Amendment 1 proposes that the council must establish a CEO employment matters committee; that it is an advisory committee; that the chairperson of the committee must be qualified and cannot be a councillor or a member of council staff; that the committee is to make recommendations to council on the appointment of the CEO, the pay and conditions of the CEO and the extension of the appointment of the CEO; and that the committee is to conduct performance reviews and perform other prescribed functions.
In relation to the amendment, the Greens have consulted with other stakeholders, including the three peak bodies that represent local government: the Municipal Association of Victoria, the Victorian Local Governance Association and Local Government Professionals. We have some significant concerns about the amendment. We believe the amendment is an overreach. Councils generally appoint appropriately skilled consultants, lawyers or individuals. Those appointed prepare performance criteria as well as evaluating CEO performance. The additional costs and tensions that may arise with more than one expert are of concern.
The amendment does not take into account contractual obligations already in place. Most CEO employment contracts provide for a performance review committee that advises council, and it is difficult to understand how current contracts and arrangements would be reconciled with the circulated amendment. We are concerned about the impact of the creation of this committee with an independent paid chair on the most critical relationships in the council, those being of the mayor, councillors and CEO.
In terms of the cost impact, that concerns us greatly. Local government will really feel the heat when it is under a new regime of rate capping, there is no doubt about that, and I would be very concerned about making anything that puts a cost impost onto local government mandatory at this stage. This amendment has the potential to have the perverse effect of weakening the relationship between councillors and the CEO. This relationship is a critical one in terms of a high performing, high functioning council. The relationship and interplay between councillors and the CEO is similar to a board of directors setting strategy which is delivered through a CEO. It is fundamental and critical, and I really think the amendment would muddy rather than enhance that relationship. The reality is that councillors should be able to make up their own minds about how they appoint, remunerate and review their CEOs, and the Greens will not be supporting the amendments circulated by Mr Davis.
In relation to the contributions we have heard, Mr Davis said his amendments are modest, will improve governance, are responsible in relation to costs and will restore confidence in the community. I do not think his amendments would do any of those things. I think they would be a cost impost. The bill at hand seeks to improve governance. The Greens do not take issue with that. In terms of confidence in the community, the best way the community can articulate their confidence in local government is every four years when they get the opportunity to vote for the councillors of their choice to represent them.
In their contributions Mr Ramsay and Mr Leane raised the matter of dress code and the mayor of the City of Greater Geelong as an issue. It is certainly not something I was going to talk to in my contribution, but I will now. I do not know what is in the code of conduct of the City of Greater Geelong. I have not checked what is in there, but I am sure it does not talk specifically about dress codes.
Mrs Peulich — Or hairstyles.
Ms Dunn — It probably does not talk about hairstyles either. What it probably would talk about is bringing council into disrepute. We need to recognise that mayors have a really important role. They are leaders in their community, and they need to set a good example. That many women out there — of all political persuasions, not just one political persuasion — were highly offended by a T shirt is surely a message that if you are in that position of leadership, you need to think a little bit harder about what you are wearing and your presentation to the public. I would be very surprised if there were not something in the code of conduct for councillors in the City of Greater Geelong that talks about bringing the council into disrepute.
In relation to the contribution of Mrs Peulich, there is leadership to help councils. In fact the peak bodies do a great job in providing leadership to help, educate and support councils through a range of processes. Their workload is large. When you look at the amendments to the Local Government Act 1989 — I have lost count; I cannot remember if this is the 92nd or 93rd amendment bill — it is no wonder that the peak bodies are kept busy in terms of building the capacity of local government. There is an enormous amount of work and effort put into codes of conduct. I have seen many in my time. As I said earlier, I was proud to be part of a council that also included a code of ethics so there could be even higher standards required.
For the Greens what is most important is that there is an increase in transparency and accountability. This is very important in relation to all tiers of government, including local government. We want to make sure that the disciplinary measures are fair, the penalties are balanced and opportunities are still provided for education and support of local government. If we truly want to improve governance arrangements in the sector, we need to build the capacity of councillors; we cannot use just a punitive approach in terms of councillors understanding their roles in relation to managing what can be enormous responsibilities and workloads.
The Georgiou review provided some opportunities to increase the transparency of local government elections. It is sad that this is probably a lost opportunity in relation to increasing transparency around them. I and others who have been around local government for some time have seen a number of what are colloquially known as dummy runners, and in some cases those dummy runners actually get elected. That makes it a really critical issue, because is the community then getting the best representation?
I would like to acknowledge the work of local government councillors. They work very hard and have enormous workloads. Theirs can be a thankless task at times, particularly with controversial issues that need to be considered in the future. I think that into the future local government councillors will have significant pressures placed on them in relation to getting the best outcomes for their communities, particularly under a rate capping scenario, especially councillors in those small rural councils which already have enormous financial constraints.
Lastly, I would like to thank the peak bodies we have consulted in relation to the bill: the Municipal Association of Victoria, the Victorian Local Governance Association and Local Government Professionals. The Greens thank them for their contributions. I also thank the councillors and CEOs in the local government sector whom I have spoken to. With that, I can report that the Greens will not oppose the bill.