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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email: banned@aapt.net.au