PART 20: 2018 AMENDMENT OF LOCAL GOVERNMENT
ACT 1995
SCHEDULED FOR COMPLETION IN 2018
1. BACKGROUND:
Following a long saga of investigation and prosecution
of a number of local governments and their Councils it became obvious that the
powers of the Minister for Local Government to suspend,
dismiss or replace Councils or individual Councilors were limited.
One may reasonably conclude the Parliament did not
consider that individual Councillors might misbehave, taking the view that
since Councillors are all upright citizens having the highest personal
standards of conduct they could not possibly transgress.
However history has since proven that this is not the
case.
The final chapter unfolded in March 2018, when the
current Minister suspended the Council of the City of Perth – Western
Australia's flagship local government - after an investigation spanning several
years involving the WA Department of Local Government, WA Corruption and Crime
Commission (CCC), State Administrative Tribunal (SAT) and Supreme Court, public
infighting and a succession of CEO's and Acting CEO's.
In response, the current Minister decided to take
action to address shortcomings in the Local Government Act.
2. THE BILL
As at March
2018 a Bill is being prepared for submission to Parliament.
The Explanatory Memorandum provides details of the
proposed changes.
3. COMMENT
3.1 COMPLAINTS
The
processes defined in the draft Bill hinge upon a complaint being made pursuant to
Division 9 of the Local Government Act 1995.
Section
5.103. Codes
of Conduct prescribes:
(1)
Every local government is to prepare or adopt a code of conduct to be
observed by council members, committee members and employees.
5.105. Breaches by council
members
(1) A council member commits a minor breach if he
or she contravenes —
(a) a rule of conduct under section 5.104(1); or
(b) a local law under this Act, contravention of which the
regulations specify to be a minor breach.
(3) A council member who commits any offence
under a written law, other than a local law made under this Act, of which it is
an element that the offender is a council member or is a person of a
description that specifically includes a council member commits a serious
breach.
Now it is
the case that a Councillor is a "public officer", hence ANY act by a
Councillor is an act as a public officer
3.2 PROCESS
The
procedure for making complaints is prescribed in S5.107 and
5.107. Complaining to
complaints officer of minor breach
(1) A
person who has reason to believe that a council member has committed a minor
breach may complain of the breach by sending to the complaints officer a
complaint in accordance with subsection (2).
5.109. Complaint initiated
by complaints officer
(1) A
person who is a complaints officer may make a complaint of a minor breach by —
5.114. Making complaint of
serious breach
(1) A
person who has reason to believe that a council member has committed a serious breach
may complain to the Departmental CEO as described in subsection (2).
5.115. Complaints officer
to send complaint of serious breach to Departmental CEO
(1) If
it appears to a complaints officer that a complaint a person seeks to make
under section 5.107 discloses a serious breach, the complaints officer is
required to send the complaint to the Departmental CEO.
It is the
case that at each early stage of the process the reviewing officer may choose
to manipulate or dismiss the complaint on whatever grounds come to mind.
It is also
the case that the Act deems a CEO of a local government to be upright and true,
because the CEO is accountable only to the Council itself.
Consequently
when a CEO has the confidence of his or her employing Council it becomes
apparent that excepting in extreme circumstances of criminal conduct no action
will be taken.
It is of
note that the Local Government Act provides no statutory mechanism for a
Council to censure or reprimand its CEO. Consequently
the Council must rely upon communication through its authorised representative
– the Mayor or Shire President – to do that, but if that person likes or
supports the CEO then again it is unlikely anything will come of it.
3.3 PENALTIES
The WA Local
Government Act 1995 prescribes:
5.117. Punishment for
serious breach
(1) If,
on an allegation under section 5.116(2), the State Administrative Tribunal
finds that a person committed a serious breach, it may —
(a) order that —
(i) the person against whom the allegation was made be publicly censured as specified in the
order; or
(ii) the person against whom the allegation was made apologise publicly as specified in the order;
or
(iii) the person against whom the allegation was made undertake training as specified in the order;
or
(iv)
the person against whom the allegation was made is suspended for a period of not more than 6
months specified in the order; or
(v) the
person against whom the allegation was made
is, for a period of not more than 5 years specified in the order,
disqualified from holding office as a
member of a council;
or
(b) order 2 or more of the sanctions described in paragraph (a).
(2) An
order described in subsection (1)(a)(iv) or (v) may be
expressed in such a way that the order —
(a)
only takes effect if, on finding that the person subject to the order
has not complied with a condition specified in the order, the State
Administrative Tribunal directs under subsection (7) that the order take effect;
and
(b) lapses if it has not taken effect within a period specified
in the order, and an order so expressed
is called a suspended order.
(3) The
period referred to in subsection (2)(b) cannot exceed
2 years.
(4) The
Departmental CEO may make an allegation to the State Administrative Tribunal
that a person subject to a suspended order has failed to comply with a
condition specified in the order.
(5) The
Departmental CEO must give a person notice in writing of a decision to make an
allegation about the person under subsection (4).
(6) If
the State Administrative Tribunal receives an allegation under subsection (4),
it must make a finding as to whether the alleged failure occurred.
(7) If
the State Administrative Tribunal finds that a person failed to comply with a
condition of a suspended order, it may if it considers it appropriate to do so
direct that the suspended order take effect.
(8)
When a council member is suspended under subsection (1)(a)(iv),
section 8.29 applies to the member as if the council had been suspended.
compare the above with the WA Criminal Code Compilation Act 1913
Part III —
Offences against the administration of law and justice and against public
authority
In
particular, Section 85 prescribes:
85. Falsification of records by public officer
Any public officer who, in the performance or
discharge of the functions of his office or employment, corruptly —
(a) makes any false entry in any record; or
(b) omits to make any entry in any record; or
(c) gives any certificate or information which is false in a
material particular; or
(d) by act or omission falsifies, destroys, alters or damages
any record; or
(e) furnishes a return relating to any property or remuneration
which is false in a material particular; or
(f) omits to furnish any return relating to any
property or remuneration, or to give any other information which he is required
by law to give,
is guilty of a crime and is liable to imprisonment for 7
years.
169. False statements on oath
(1) Any
person who, when under oath or any sanction that may be lawfully substituted
for an oath, knowingly makes a statement, whether orally or in writing, that is
false in a material particular is guilty of a crime and is liable to
imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3
years and a fine
of $36 000.
Note:
Councillors pledge an oath of office to perform their duty and uphold the law
and are also bound by their local government Code of Conduct
170. False information to officials etc.
(1) Any
person who, being required under a written law to give information, whether
orally or in writing, to another person, knowingly gives information to the
other person that is false in a material particular is guilty of a crime and is
liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for
18 months and a fine of $18 000.
177. Disobedience to statute law
Any person who, without lawful excuse, the
proof of which lies on him, does any act which he is, by the provisions of any
public
statute in force in Western Australia, forbidden to do or omits to do any act
which he is, by the provisions of any such statute, required to do, is guilty
of a crime, unless some mode of proceeding against him for such disobedience is
expressly provided by statute, and is intended to be exclusive of all other
punishment.
The offender is liable to imprisonment for one
year.
It becomes
apparent from the above that the Local Government Act 1995 provides a
convenient "Get out of jail free card" to Councillors.
One can reasonably
assume that because few Councils have been suspended or
dismissed under the existing provisions of the Local Government Act 1995 the
proposed changes by Parliament will make negligible difference to the
status-quo.
Excepting
for blatant criminal conduct, Councillors are protected in law from law so one can
only hold one's breath and wait and see how this
unfolds.
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at http://www.banned.oestex.com/Part
20 R1.htm
email: banned@aapt.net.au