2016, September – Submission to the Councillor Complaint Review Panel

DATE: 20 September 2016

TO: Independent Councillor Complaints Review (Dr D Solomon AM; Noel Playford OAM; Gary Kellar PSM).

FROM: Queensland Local Government Reform Alliance Inc.

SUBMISSION ON COUNCILLOR COMPLAINT REVIEW DISCUSSION PAPER.

The QLGRA Inc welcomes the opportunity to present a submission on this review process. The Queensland Local Government Reform Alliance is a peak state wide organisation representing groups and individuals concerned about the conduct and operations of local councils in Queensland.

Our Management Committee congratulates the Independent Councillor Complaints Review Panel for its very informative and thought provoking Discussion Paper. We agree with the findings of the Panel that the current system is complex and cumbersome. We contend the present system does not contribute in any way to encourage councillors to raise the standards of their behaviour. QLGRA has been notified of complaints presented by numerous groups and individuals; the common theme of the experience of the complaints is the lack of any sense of resolution.

The QLGRA wishes to place before the Panel the following comments:

  1. The Panel’s Initial Research: We note with disappointment that the initial discussions and research into this issue by the Independent Councillor Complaints Review Panel did not appear to include discussion with actual complainants.
  1. Recommendations for improving Councillor Behaviour outside the Panel’s parameters: QLGRA recommends a system that discourages councillors from behaving in an unacceptable manner is of critical importance. We note on page 23 of the discussion paper that the Panel argues that achieving ‘good governance’ cannot be done in isolation (that is, by concentrating solely on the complaints process). We note that the panel intends to return to this theme in its final report.   With this intention of the Panel in mind, we make the following recommendations:
  2. All elected representatives should operate under the same conditions as State and Federal politicians, whereby they are required to officially diarize all of their council activities.  This will place a responsibility on Councillors to adhere to the directions of the Local Government Act and conduct themselves in an open and transparent manner. Currently Councillors have no accountability to the community for their time or their dealings when on council business.  It will also remove the temptation to conduct themselves in such a manner that would warrant complaints against them.
  3. All developer donations should be banned, thus again eliminating the current perceived trend for Councillors to favour applications from their financial backers.
  4. QLGRA firmly believes that the current size of councils increases the opportunity to behave other than in the best interests of the ratepayers and residents. Councils bureaucratically and representatively remote from their communities, are fertile grounds for misconduct and corruption.
  1. Definitions: The discussion paper (page 8) defines certain behaviours as ‘misconduct’ including the following:
    • the misuse of information or material for the benefit of the Councillor or someone else;
    • release of confidential information and
    • the failure to deal appropriately with a real or perceived conflict of interest amongst other lesser conduct issues.

Complainants tell us that what they consider to be ‘corrupt’ is often regarded by the CCC or other oversighting bodies to be ‘misconduct’, and in some cases not even that. Given the above definitions this is not surprising. Take the following theoretical example:   A Mayor has early knowledge that a block of land is being considered for re-zoning. He/she or a friend purchase the land prior to rezoning. After rezoning the land is considerably more valuable.   This could currently appear to fit the given definitions of ‘misconduct’, but in the eyes of the public would be considered to be ‘corrupt’ behaviour.

Therefore the QLGRA considers that the definitions used for ‘misconduct’ and ‘corrupt’ conduct seriously need to be reconsidered. In order to advance good local governance it is imperative that these types of conflicts of interests that could ‘benefit’ a Mayor, Councillor, someone else or a political party are seen to be not only corrupt but should also attract significant punishment that includes imprisonment.

However, where a Councillor has released information that is in the public interest, for example, a council budget discussion issue, this should be clearly accepted as lawful conduct. We would recommend that a ‘public interest’ test be applied to the review of these definitions.

  1. Code of Conducts and free speech:   We have also had numerous complaints about Councillors’ inability and willingness to speak out against decisions that have been made by a Council. Firstly, this ‘gagging’ would appear to be a breach of the LGA requirement for councils and councillors to act in an open and transparent manner. To the ratepayers and residents, it appears to be a severe threat to democratic free speech. Whether the public agree or not with the particular Councillor’s opinion, providing information about Council operations that is legitimately held and reasonably expressed should have all the freedom to be publicly aired.
  1. Conflict of Interests and community roles: We think very clear rules and parameters need to be set around Councillors’ activities, their interaction with the community and community groups. Importantly the public needs to be aware of these parameters and we would like to see this advice included as regulation in Rates Notices and the like.
  1. The Best Complaints Process Model: The current system of referring complaints back to the Councillors and/or the CEO who are the subject of the complaint is akin to having criminals sit in judgement of their own crimes.   Referring complaints back to the CEO of the council for investigation is inappropriate in the extreme. We believe such matters should be referred to an Independent Board of Review (or similar) for investigation and / or any follow up actions that maybe required.  Hence we agree with the intents expressed in point 7 (of Option 1 page 24) and especially 5.3 (page 26) – that an independent external tribunal be established to deal solely with Councillor Conduct and that this Tribunal be fully empowered to take legally enforceable action including referral for Police investigation if required.

A potential negative impact would be to permit organisations like LGAQ to appoint members to the tribunal as they are representative of councils. We would suggest a board of three people with one from a legal background, one with extensive local government knowledge, and the last a person of repute from the community at large.  That board should be supported by an investigative unit which includes forensic accountants and funded appropriately. Such a review board would be effective through being able to stand on its own feet, and capable of handling most scenarios that may arise in a complaint.   The review board should be capable of adjudicating and implementing follow on action such as re-training or counselling. It should also be empowered to take any actions necessary to discipline an errant Councillor up to but not including dismissal. If the board adjudicates that an offence warrants dismissal, the case would be referred to the Minister for final judgement and action.

  1. One of the best measures for discouraging misconduct is to make public all investigations undertaken and have in place punitive measures that reflect the seriousness of any proven offence or crime.
  1. Another measure is to tighten the definitions of misconduct, corrupt behaviour etc in terms of principles of acceptable and unacceptable behaviour and actions. i.e. remove legalistic loopholes from the complaints process.
  1. We further submit that the best remedy for Councillor misconduct is to establish preventative measures thus reducing the temptation for Councillors to engage in corrupt activities. Works by Professor Tim Prenzler of the University of the Sunshine Coast are an excellent reference. He is currently a lead researcher in the project “Strengthen Australia’s National Integrity Systems.” The project will focus on areas such as: lies and false promises; abuse of entitlements; pork barrelling; political donations and undue influence; gifts and benefits; excessive and wasteful expenditure. We recommend reference by the Panel to this project which is part funded by Transparency International.

Yours Sincerely

Colin Hewett

Chair

QLGRA Inc

20 September 2016.

 

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