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Local Government Amendment (Code of Conduct) Bill 2022

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Thursday, 11 May 2023

Tags: Local Government, Legislation

Dr WOODRUFF - Mr Speaker, I rise to give the Greens' comments about this Local Government Amendment (Code of Conduct) Bill. I agree with Ms Dow's comments about it taking a long time to come here. There are always a lot of things happening in the background but it really has taken a very long time for this legislation to get here. In that time we have had a new local government election, and new councillors on councils. It is unfortunate that this was not in train before. We have had nine months of people working under a manifestly inadequate system.

Mr Street - I will explain.

Dr WOODRUFF - Okay, thank you.

We all would agree that the capacity of people as an elected representative to undertake their democratic role is fundamentally hinged on their ability to be able to speak openly and with confidence in an environment where they will be listened respectfully. In my experience as a past councillor, codes of conduct have often been taken specifically on the issues of bullying and intimidation.

I have known a number of women councillors who have been completely incapable of fulfilling their elected responsibilities by not being able to speak, and not being able to raise issues without being mocked and ridiculed. They have not been able to talk about things which are uncomfortable to other members because they pushed buttons. They pushed buttons about the role of women; they pushed buttons about being a Green in a pro-timber council. I can speak to someone on the Huonville Council in that role as a woman, as a Greens.

Mr Street - I saw it with both genders at Kingborough Council on other issues as well.

Dr WOODRUFF - Yes, absolutely. It is not just women. It is about a culture of respect and what you do when that breaks down, and the role of a panel to carefully balance the need to be able to protect an elected representative's right to be able to make contributions on behalf of their constituents as well as safeguarding natural justice and making sure there is an opportunity for both parties to speak without the misuse of the processes for vexatious litigation as a form of abuse and weaponising against vulnerable people or people who are being attacked. It is a very difficult balance.

There are a lot of opportunities for suspension before somebody is actually removed for what is obviously very severe behaviour. I would like to hear why we have landed at three suspensions. That is a lot and that is in one term, if I remember, so within a four year period a councillor can be suspended three times. That means three times going through a dispute resolution process within the council, having some sort of mediation, then going on to a panel that would have been established, then the process of the panel's determination, then going back into council, doing the same thing or something similar, and going through the process again - so three times.

I do not know if it is possible to fulfil according to the time frames in the act but it is listed here as possible, and then what? Then there is the possibility that the panel can make recommendation to the minister and the minister can issue a performance improvement directive. At the same time, the Greens do not support local government members being sacked by ministers. We do not support reaching in -

Mr Street - Neither does the Local Government minister.

Dr WOODRUFF - That is great. We do not support having a different standard for members of state parliament as we do for elected representatives in local government. It is a very difficult road to walk and it is really about democracy and making sure that, at the end of the day, we do not have an opportunity for a state government, for whatever reason, to possibly end up in some way politically interfering with a council.

It is not just the prospect of a councillor who could be sacked, it is that the whole council can be sacked. Councils can be and have been dismissed. That is one issue. Today in Tasmania on many councils there are people whose behaviour is abhorrent and their beliefs and what they are prosecuting is abhorrent to other people. The job we have here today is to make sure the process can include some sort of respectful rules of engagement to be enforced. If not, there has to be consequences and they have to be strong enough to have an effect to curtail that behaviour.

I have some specific questions. We may not need to go into Committee if you are able to answer them.

Mr Street - I actually need to.

Dr WOODRUFF - That is right, you have an amendment to move.

I will raise some of them now. Clause 6, section 28K amended, is about the code of conduct panel. It requires that for a person to be on the panel, they can have been a councillor within the preceding two years. At the moment the act reads that a person must not have been a councillor or employee within the immediately preceding two years. We are changing that to say 'current councillors or employees of any council'. That does not make any sense to me. There are so many obvious conflicts of interest with someone who has just stepped down from being a councillor. I do not understand why we would not keep that two-year rule. Surely we cannot have a problem with constituting a code of conduct panel in terms of the number of people available in Tasmania with good expertise? Maybe the minister could talk to that, but it seems as though we are opening up obvious and highly probable conflicts of interest.

Perhaps I have misread the amendment bill. I know we talk later about a conflict of interest and maybe a person can make sort of a request that the code of conduct panel not contain a particular person if they came from the council that the councillor is from. If there is an opportunity to strike out a member of the panel because they have been a recent employee or councilor, that would seem obvious.

Mr Street - At a specific council, you mean?

Dr WOODRUFF - At a specific council that they are from themselves. Clause 9, section 28OA inserted, is about disclosures of interest and subsection (1) reads:

If a member of the Code of Conduct Panel has an actual, potential or perceived conflict of interest in a matter, the member must notify the Executive Officer, as soon as practicable … [OK]

Minister, can you talk to how you think a perceived conflict of interest will be defined? Will guidelines be developed about what a perceived conflict of interest could be? Who checks it? I suppose the person themself has to declare it, but what happens if somebody does not make a declaration of interest? I do not see there are any penalties there for not declaring a conflict of interest, and whether the person who is making the complaint has an opportunity to point out and strike out a member of the panel if they have not declared a conflict of interest.

Clause 14, section 28V amended, is around the making of a code of conduct complaint against a councillor, and it amends section 28V to insert new paragraph (fc), which says:

if the complainant completed the council's dispute resolution process in respect of the complaint - [OK]

There has to be details of the attempts made to undertake the dispute resolution process within the council before it can go to a code of conduct panel and also why the complainant believes the dispute resolution process is not appropriate in regard to the complaint. It is obviously difficult, with many code of conduct complaints that I have been aware of for a dispute resolution process to take place.

Mr Street - You can apply to bypass the dispute resolution process.

Dr WOODRUFF - You can, can you?

Mr Street - Yes.

Dr WOODRUFF - Okay. All right.

Mr Street - If there is a complaint and you are of the opinion that the dispute resolution process will not do any good, you can apply directly to the code of conduct panel and give your reasons as to why you do not think the dispute resolution policy is appropriate for your particular complaint.

Dr WOODRUFF - Okay, yes. Because it can be a further form of abuse to have to go through that process. As Ms Dow has pointed out, there are some concerns about small councils and the quality of the dispute resolution panel processes.

This is the draft prescribed information dispute resolution policy. Are they proposed guidelines for a dispute resolution policy?

Mr Street - I do not know.

Dr WOODRUFF - I do not know where I got them from. I might have had a conversation during the briefing.

Mr Street - At the briefing.

Dr WOODRUFF - From the briefing. Thank you.

This looks like a great start, but it also does not necessarily attend to the quality of the people who would be on a dispute resolution policy panel. Can you say whether there is any guidance or directions in the amendment bill about the standing up of the panel and the type of people who are or are not allowed to be involved in that process. If the function of the dispute resolution panel is to curtail having to go another step to try to stem it, then it does rest on a certain level of quality and ability and training, and so on.

Section 28Y amended (Initial assessment of a complaint by general manager) would amend the act to require that a complaint be accepted within 14 days after being received by the general manager. I wholeheartedly support that. In my personal experience, general managers of a certain ilk have used the open-endedness to not make a response in a timely fashion, or to make it after a certain event has happened which would be more difficult for councillors. It is very important to have a time limit there.

Section 28ZE inserts a new subsection after subsection 3A which says:

All of the reasonable costs and expenses incurred, in respect of the investigation of a code of conduct complaint, by the investigating Panel for the complaint are payable by the relevant council in respect of the complaint. [OK]

Minister, can you please give us an idea of the scale of the sort of expenses? What costs might there plausibly be? There is 90 days of a code of conduct assessment time frame. There is also the initial assessment, which is done by an Australian lawyer. There are a number of people on the code of conduct panel. Is there a daily figure? Is there a one-off?

Mr Street - It is $200 for the initial assessment, which is what we need to go into committee about. I will explain.

Dr WOODRUFF - That is right. As for the panel expenses, what are we talking about? Is it going to be prohibitive to go down this pathway?

Mr Street - I will get an indicative cost.


Mr SPEAKER - Can I ask whether we need to go into Committee? We are not in Committee. A series of questions can be asked of the minister and he can reply on the second reading while he is winding up.

Mr Street - I did not mean for Dr Woodruff to stop while I was getting that information, but that is fine.

Dr WOODRUFF - They are my main questions. I reiterate our support for the fact that this bill does not have an option for counsellors to be sacked. We made a submission at the start of this process in 2019 in the Reforms Directions Paper: Phase two and we were very clear that the current provisions in the act that allow for the dismissal of a council or councillor after a board of inquiry process are sufficient. We are concerned for the potential for politically motivated dismissals if they were to be of individual councillors. We welcome and support the Government's lack of interest in going down that pathway.

Mr Street - I will explain that as well.

Dr WOODRUFF - Thank you. If we are going into Committee, I will make comments on my other concerns then. I appreciate this finally coming to conclusion.