It  is  a  fundamental  principle  of  democratic  government  that,  in  the  absence  of organized  and  identified  political  party  policies  and  representation  in  local
government  councils  in  Western  Australia,  each  and  every  individual  Councillor  is personally  politically accountable  to  the  electorate for  his  or  her  decisions  in Committee and in Council relating to their local government's policies and practices.

It also follows that the entire Council, as a statutory entity, is also collectively legally, morally, ethically and politically accountable to the electorate.

This  must  be  so  because  the  WA  Local  Government  Act 1995  establishes  local governments as autonomous entities effectively independent to the State Government and Departments of State.

The  WA  Local  Government  Act  1995  assigns  responsibility  –  and  therefore accountability – to Councils of local governments for governance of the community
each local government governs (“government”)  and for the management of the local government itself (“corporate governance”).

Excepting for conditions set out in Part 8 of the Local Government Act 1995, Councils of local governments are effectively exempt from accountability to the Crown for their day  to  day  governance  actions  or  inactions,  so  –  excepting  where  explicitly constrained by statute - are thus free to do or not do whatever they want.

However notwithstanding that autonomy, local governments are "public authorities" and still form part of "The State".

Australian law does not permit a citizen to personally prosecute a local government for failing to perform, or for inadequately, ineffectively or inefficiently performing its statutory governance functions ("non-feasance"), or for breaching statute criminal law.

Actions in tort for personal harm or injury remain, but are constrained by the Local Government Act 1995 and a wide range of other statutes which provide immunity to local governments and their Councillors and Officers.

In any event, criminal or tort action against a Local Government, Council, Councillor or officer may be lawfully defended by the deep pockets of the public purse.
Thus, in practice, the law is designed to discourage an individual citizen prosecuting a local government on behalf of oneself, disaffected others or the general population.

This  de facto legal immunity provides opportunity for local governments to exercise free license in their interpretation and application of the laws to which they are duty bound to uphold.

This status as a "public authority" and freedom from accountability, encourages local governments to make up their own rules under the guise of "policy", to irrationally interprete and apply existing laws, to create "local laws" which change the focus of Acts and Regulations, to legitimise their subjective discretionary advantage, or Town Planning Schemes which are not “plans” at all, but administrative devices designed to lawfully and discretionally create inconsistent and irrational, subjective or whimsical decisions and actions.

Western Australia Local Government Association: (click to link)

The Western Australia Local Government Association, which represents most, if not all, local governments in the state, acts as an independent industry wide corporate board of governance, setting statewide policy to which its member local governments subscribe,  support  and  execute  –  free  from  the  knowledge,  gaze  and  scrutiny  of Electors.

This statutory industry structure ensures local governments are free to express their benevolence or constraints to whomever they please.

It  also  teaches  participants  how  to  most  effectively  apply  the  principles  of complication and obfuscation in the administration of local government.

Reflecting the views of its members, it is a strong advocate of the “status-quo”.

It has a policy of removing the statutory right of “Public Question Time”.

Elector Rights:

The ONLY rights given to Electors and the public in relation to pursuing accountability in local government are the right to ask a question of Council, or Committees having specific "powers or duties", and to cast a vote in an election – that's it !!

There is no requirement in law for a local government to respond to written questions or complaints.

There  is  no  requirement  in  law  for  a  Councillor  to  respond  to written  questions  or complaints.

"Elector meetings" and "petitions" have no standing and Council is not obligated to accept any submission from Electors.

Thus  Public  Question  Time  and  the  ballot  box  are  the  only  practical  mechanisms available to the public to exercise their right of political remedy.

Elector Meetings

Elector Meetings are an essential component of the democratic government system.

Elector Meetings are meetings of Electors - not Council - and are prescribed in law to enable Electors to review the performance of their local government.

The Local Government Act 1995 prescribes:

1.4 elector, in relation to a district or ward, means a person who is eligible to be enrolled to vote at elections for the district or ward;

5.26. Term used: electors
  In this Subdivision —
 electors includes ratepayers.

IMPORTANT NOTE: S1.4 defines electors to include any person eligible to be enrolled to vote for the district or ward;

4.29. Eligibility of residents to be enrolled
 (1) A person is eligible to be enrolled to vote at elections for a district or ward (the electorate) if the person is enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate.
 (2) For the purposes of subsection (1) a person is to be regarded as being enrolled as an elector for the Legislative Assembly even if his or her name has been omitted in error from the relevant electoral roll under the Electoral Act 1907.

4.38. What roll consists of

 (1) The electoral roll for the election is to consist of a residents roll (S4.40) and an owners and occupiers roll (S4.41) but these can be consolidated for the purposes of the election in accordance with regulations.

 (2) Regulations are to include provisions about the form of rolls (e.g. consolidated rolls, district rolls, ward rolls, combined ward rolls), the details that they are to contain and the arrangement of those details, and can provide for cases in which details may be omitted for the protection of an elector or his or her family.

Hence "the PUBLIC" is a broader term and might include persons who are not eligible to enrol, such as children or interested persons and visitors from outside the district.

However, to remove doubt, the City of Armadale amended its Local Law Standing Orders 2000 in August 2016 to prescribe:

18.2  Participation of Non-Electors
A person who is not an elector of the district of the City of Armadale must not take part in any discussion at an electors’ meeting unless the meeting, by resolution,
permits him or her to do so.

Now that does present a problem because there is no procedure for expressing a person's desire to "take part in any discussion".

In fact there is no provision for "discussion" of any kind.

For some years, City of Armadale Annual Elector Meetings have structured "General Business" as "Questions", resulting in the whole time for General Business being consumed by questions and responses from the Chair.

Whilst the Chair is participating in the meeting there can be no space for discussion or even presenting "motions"

Section 5.27. Electors’ general meetings of

 (1) A general meeting of the electors of a district is to be held once every financial year.

 (2) A general meeting is to be held on a day selected by the local government but not more than 56 days after the local government accepts the annual report for the previous financial year.

 (3) The matters to be discussed at general electors’ meetings are to be those prescribed.

In relation to s. 5.27 (3) the Local Government (Administration) Regulations 1996 prescribe:

Matters for discussion at general electors' meetings . s. 5.27 (3)

15. For the purposes of section 5.27 (3), the matters to be discussed at a general electors' meeting are, firstly, the contents of the annual report for the previous financial year and then any other general business.

However if the person presiding does not want to have a particular matter presented to the meeting, he or she simply either rejects (dismisses) the request or calls for a motion (which must be seconded and then voted upon) to have that matter introduced

He or she can also claim that if a matter is not specifically included in the Agenda - e.g. by means of a procedure requiring items to be presented to the CEO not less than say four days before the meeting -

5.30. Who presides at electors’ meetings

 (1) The mayor or president is to preside at electors’ meetings.
 

However, the Mayor or President has yet another weapon in the arsenal for muzzling dissent in a curious Public.

That is the absolute right to determine procedures for the meeting

5.31. Procedure for electors’ meetings

  The procedure to be followed at, and in respect of, electors’ meetings and the methods of voting at electors’ meetings are to be in accordance with regulations.

In relation to s. 5.31 the Local Government (Administration) Regulations 1996 prescribe:

Procedures at electors' meetings: s. 5.31

18. Subject to regulations 15 and 17, the procedure to be followed at a general or special meeting of electors is to be determined by the person presiding at the meeting.
 

So again, the person presiding has absolute power to determine whatever he or she wants

That discretional power includes the power to discretionally apply, on a mutatis mutandis basis, all or any of the relevant procedures prescribed by the Local Government (Administration) Regulations 1996

Question time for the public at certain meetings; s. 5.24 (1) (b)

5. For the purposes of section 5.24 (1) (b), the meetings at which time is to be allocated for questions to be raised by members of the public and responded to are;

 (a) every special meeting of a council;

 (b) every meeting of a committee to which the local government has delegated a power or duty.

Minimum question time for the public; s. 5.24 (2)

6.(1) The minimum time to be allocated for the asking of and responding to questions raised by members of the public at ordinary meetings of councils and meetings referred to in regulation is 15 minutes.

(2) Once all the questions raised by members of the public have been asked and responded to at a meeting referred to in subregulation (1), nothing in these regulations prevents the unused part of the minimum question time period from being used for other matters.

Procedures for question time for the public; s. 5.24 (2)
 

7.(1) Procedures for the asking of and responding to questions raised by members of the public at a meeting referred to in regulation 6 (1) are to be determined ?

 (a) by the person presiding at the meeting; or

 (b) in the case where the majority of members of the council or committee present at the meeting disagree with the person presiding, by the majority of those members,

having regard to the requirements of subregulations (2) and (3).
 

(2) The time allocated to the asking of and responding to questions raised by members of the public at a meeting referred to in regulation 6 (1) is to precede the discussion of any matter that requires a decision to be made by the council or the committee, as the case may be.

(3) Each member of the public who wishes to ask a question at a meeting referred to in regulation 6 (1) is to be given an equal and fair opportunity to ask the question and receive a response.

(4) Nothing in subregulation (3) requires;

 (a) a council to answer a question that does not relate to a matter affecting the local government;

 (b) a council at a special meeting to answer a question that does not relate to the purpose of the meeting; or

 (c) a committee to answer a question that does not relate to a function of the committee.
 

In the case of the City of Armadale, the Department of Local Government has maintained for years that the Person Presiding, applying his or her absolute powers,  may discretionally apply City of Armadale Local Law Standing Orders 2000 to Elector Meetings on a mutatis mutandisbasis.

To be sure,  Local Law Standing Orders 2000 prescribes:

18.1  Procedure for Electors’ Meetings
In exercising his or her discretion to determine the procedure to be followed at an electors’ meeting, the presiding member is to have regard to these Standing Orders

That means he or she may discretionally apply - with the authority of a local law - all or any Standing Order as and when he or she so determines.

In particular;

3.3  Public Question Time
The procedure for Public Question Time is dealt with in the Act.

8.4  Adverse Reflection

(2)  No member of the Council, or a committee, or member of the public is to use offensive or  objectionable expressions in reference to any
member, employee of the Council, or any other person.
Penalty $1,000

(3)  No member of the Council, or a committee, or member of the public is to reflect adversely on the character or actions of a member, officer or
any other person participating in the meeting.

Note: In relation to SO 8.4 (3) there is no money penalty applicable to Councillors because they are subject to a specific review process where breaches are alleged, however "members of the public" - which by decree of the person presiding includes "Electors" - are not included in that process. Since there has never been a prosecution for a breach of SO 8.4 the position of "Electors" is neither known or defined.
 

Are you prepared to take the risk of "reflecting adversely on the actions of a member or officer" ? - i.e. criticising them or highlighting shortcomings in the administration.

Clearly the democratic civil right to challenge or question government has been voided by discretional process.

and/or Policy EM6 and/or Management Practice EM6
 

So much for the HIgh Court's declarations of civil and political rights under the RULE OF LAW !!

5.28. Electors’ special meetings

 (1) A special meeting of the electors of a district is to be held on the request of not less than —
 (a) 100 electors or 5% of the number of electors —whichever is the lesser number; or
 (b) 1/3 of the number of council members.

 (2) The request is to specify the matters to be discussed at the meeting and the form or content of the request is to be in accordance with regulations.
 (3) The request is to be sent to the mayor or president.
 (4) A special meeting is to be held on a day selected by the mayor or president but not more than 35 days after the day on which he or she received the request.

Requests for electors' special meetings: s. 5.28 (2)

16.A request for a special meeting of the electors of a district is to be in the form of Form 1.

In the case of "Special Elector Meetings" Electors MUST be very careful what they state on the Form 1 which sets out the purpose of the meeting.

The requirements for "the request" as defined in S 5.28 (2) are not defined, hence "reasonable" people state, in good faith,  "reasonable" requests.

However in consequence of that good faith, it is common for the person presiding to delete matters he or she discretionally determines are not within the purpose of the meeting. That discretion is applied during the meeting so Electors do not have opportunity to amend the form beforehand - the "request" process is designed to ensure non-compliance. This is clearly a strategy to censor the meeting.

5.33. Decisions made at electors’ meetings

 (1) All decisions made at an electors’ meeting are to be considered at the next ordinary council meeting or, if that is not practicable —
 (a) at the first ordinary council meeting after that meeting; or
 (b) at a special meeting called for that purpose,
  whichever happens first.

 (2) If at a meeting of the council a local government makes a decision in response to a decision made at an electors’ meeting, the reasons for the decision are to be recorded in the minutes of the council meeting.

So even after going through the protracted process of presenting a successful seconded motion and the making of a "decision" at an Elector Meeting and/or Special Meeting of Electors, any "decision" made by that process has NO standing whatsoever unless  it is "considered" by Council.

History shows the Council of the City of Armadale "considers" the CEO report of an Elector Meeting by the process of a decision to consider it.

That is to say the Council does absolutely nothing - no discussion, no debate - just "consider".

Public awareness of Elector Meetings.

A local government is required by the Local Government Act 1995 to advertise the meeting as follows:

1.7. Local public notice

 (1) Where under this Act local public notice of a matter is required to be given, a notice of the matter is to be —

 (a) published in a newspaper circulating generally throughout the district; and

 (b) exhibited to the public on a notice board at the local government's offices; and

 (c) exhibited to the public on a notice board at every local government library in the district.

 (2) Unless expressly stated otherwise it is sufficient if the notice is —

 (a) published under subsection (1)(a) on at least one occasion; and

 (b) exhibited under subsection (1)(b) and (c) for a reasonable time, being not less than —

 (i) the time prescribed for the purposes of this paragraph; or

 (ii) if no time is prescribed, 7 days.
 [Section 1.7 amended by No. 64 of 1998 s. 18(3).]

Note: Despite the INTERNET being available since 1996, and most local governments display an official website, there is no statutory requirement for notice of an Elector meeting to be displayed via that means.

Hence members of the public who rely upon websites for information are likely to be blissfully unaware of a forthcoming Elector meeting.

Thus those who do not see a notice on or near the back page of their local newspaper in a place where local government notices are few and far between, will remain ignorant of said meeting.

It is relevant that the date for the Annual Meeting of Electors is not fixed on the same day each year - adding further complexity to the riddle of discovery.

Furthermore, newspaper advertisements for Elector Meetings are always stand-alone, bland, sterile, "official speak" notices.

The City of Armadale has NEVER supported Elector meetings with encouraging notices or articles or local radio announcements, including its own widely circulated periodic "City Views" publication, used to extol its virtues.

Thus one can reasonably assume the Council does not want Electors to attend.

Voting At Elector Meetings

Those Electors present are eligible to present or second motions and vote on those motions.

They are eligible to participate in formal debate for or against those motions.

BUT

Councillors and staff present , who are Electors, are also eligible to vote and participate in debate about themselves, their decisions, their actions and their plans.

This includes a vote of "no-confidence".

This is a clear breach of the rule of "natural justice" but that does not matter.

Given the historic attendance at City of Armadale Annual Elector Meetings has been dominated by Councillors and staff - thanks to a lack of advertising and promotion of the meeting - it is not surprising that nothing of any substance has ever emerged from an Elector meeting.

Petitions   (click to view definition)

The Petition is an ancient Common Law right.

The UK Bill of Rights (1688) declared:

Right to petition.
That it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are Illegall.

Freedom of Speech.
That  the  Freedome  of  Speech  and  Debates  or  Proceedings  in  Parlyament  ought  not  to  be impeached or questioned in any Court or Place out of Parlyament.

The term "petition" has a range of meanings

Importantly it can mean a verbal request or a written request - sometimes referred to as a "prayer".

Hence a petition can be verbal.

City of Armadale Local Law Standing Orders 2000 refers to petitions in the following manner:

3.4  Petitions

(1)  A petition, in order to be effective, is to -

(a)  be addressed to the Mayor;

(b)  be made by electors of the district;

(c)  state the request on each page of the petition;

(d)  contain the names, addresses and signatures of the electors making the request, and the date each elector signed;

(e)  contain a summary of the reasons for the request;

(f)  state the name of the person upon whom, and an address at which, notice to the petitioners can be given;

(g)  be in the form prescribed by the Act and Local Government (Constitution) Regulations 1996 if it is -

(i)  a proposal to change the method of filling the office of Mayor;

(ii)  a submission about changes to wards, the name of a district or ward or the number of councillors for a district or ward.

(2)  Every petition shall be respectful and temperate in its language and shall be presented to the Council by a member only.

(3)  On the presentation of a petition, the member of Council presenting same shall confine himself to the reading of the prayer therein only, and the only motions that shall be in order shall be that such petition be received and if necessary that it be referred to a Committee, or if the subject matter thereof is dealt with in any Order of the Day be referred for consideration in connection therewith

Note 1: The term "electors" is plural - i.e. more than one elector is required to sign

Note 2: The petition is to be addressed to the Mayor. The Mayor is independent to the Administration hence a petition may discretionally be not passed on to the CEO for inclusion in the Agenda

Note 3: The petitioners must state reasons for their request, hence a petition may be discretionally rejected if the reasons are considered politically unpleasant or potentially embarrassing to the City

Note 4: "Every petition shall be respectful and temperate in its language" hence if the language is not considered "acceptable" or "temperate" (neither term is defined in Standing Orders) or hostile then again the petition may be discretionally rejected

Note 5: The procedure "Every petition shall be presented to the Council by a member only." is designed to keep dissenters out of the process and has the effect of quashing any semblance of common law civil right to petition the government

Note 6: Even if a petition makes it through all that procedural process, SO 3.4 (3) ensures nothing much will happen as a result - unless a Councillor feels moved to submit a motion refer the petition to a Committee.

The term "Order of the Day" does not appear in Standing Orders so is a mystery.

However although it is defined in many ways throughout the world, the most relevant meaning is "agenda"

So why can't Standing Orders say "agenda"?

Because again we have "obfuscation" at work, intended to confuse.

In other words, in relation to SO 3.4 (3), a petition relevant to an item of business already on the Agenda, is likely to be lost in the wash if it is a Council meeting, because in most cases a final decision on Agenda business items is made at that meeting.

In any event to take advantage of that process, petitioners must prepare their petition within the 72 hour period from Agenda publication to meeting time.

Note 7: Even though the petition must be and is presented to Council by a Member, it must be addressed to the Mayor.

As noted elsewhere the Mayor has no powers to do anything about anything other than to chair meetings and discretionally determine procedures.

Every petition is presented as a tabled document to COUNCIL - not the Mayor, hence SO 3.4 is gobbledegook.

It can be reasonably argued that a "PUBLIC STATEMENT TIME" is a valid form of petition.
 

Public Question Time:

The WA Local Government Act 1995 and its subsidiary Regulations, provide that each meeting of Council be open to the public and preceded by a "Public Question Time" of not less than 15 minutes. The purpose of that question time is to enable to public to gain  information  and  to  scrutinise  their  local  government  as  part  of  the  political accountability provisions of democratic government.

Given  political  parties  and  their  declared  policies are  formally  absent  from  the Western Australia local government structure it follows that ward Councillors can only at best present a minority  personal  view to Council and vote according to  personal values and attitudes.

It  is  not  unlawful  for  a  Councillor  to  vote  contrary  to  community  demands, expectations, protests, petitions, or submissions.

Council  and  its  Councillors  are  not  required  to  reveal  how  they  might  vote  on  a particular matter or why they voted the way they did.

However, once Council has resolved a matter, or taken a particular policy position, individual  Councillors  are  prohibited  from  publically  opposing  that  decision  and speaking against it – ever !!

Since future business before Council and Committeesis not known at election time and candidates are not required to publish their personal policies or attitudes to the electorate prior to election to public office, it follows that Electors have no way of knowing  how  their  ward  Councillor  might  represent  their  views  on  any  particular future issue that has not yet arisen in the community.

The drivers that place business items on Council's agenda are often secret, obscure, lack substantive factual evidence and devoid of rationality.

Consequently the only way Electors, Ratepayers and the Public have to discover their Councillor's, Committee's or full Council's position is to ask questions.

It is clear from the minuted record that superficial questions are welcome but rational questions seeking justifications are not.

It is a fundamental civil right that any Elector can ask – and receive a sensible rational response – to who, what, how, when, where and why a particular policy or decision has been determined AND to enquire as to future plans for the electorate.

Avoidance, suppression or dismissal of these principles undermines the foundations of democratic government.

"All the citizens, being equal in the eyes of the law, are equally admissible to all public dignities, places, and employments, according to their capacity and without distinction other than that of their virtues and of their talents," eliminating the special rights of the nobility and clergy.