Local Government Act Submission

7/23/2019 Local Government Act Submission

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Leadership and Good Governance - Reports 92 Ordinary Meeting - 16 December 2015

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6. LEADERSHIP AND GOOD GOVERNANCE

6.1 REVIEW OF THE LOCAL GOVERNMENT ACT 1989

Document Information

Author Peter Davies, Manager Executive Services

Responsible Craig Niemann, Chief Executive OfficerOfficer

Summary/Purpose

The purpose of this report is to ask Council to adopt the attached draft submission to theLocal Government Act review discussion paper.

Policy Context

Council demonstrates leadership in its decision to meet future needs and challenges.

Background Information

On August 11 2015, the Minister for Local Government announced a review of the Local

Government Act 1989.

The purpose of the review is to revise the current legislation governing local governmentin Victoria to create a more contemporary, accessible, and easier to understand Act thatmeets the current and future needs of the community and local government sector.

The terms of reference provide for a comprehensive examination that will consider allaspects of the current Act with a view to more accurately and consistently reflectingpolicy intent and improving clarity, including provisions setting out objectives, roles,functions and powers of councils; roles and responsibilities of councillors, mayors, CEOsand council staff; directions about governance and administrative processes required tobe followed by councils; and the system of electoral representation.

To this end, a discussion paper was released to start a conversation between councils,the community and the state government which identifies the key issues that reflect theterms of reference for the review.

Submissions to the review discussion paper were invited and close on December 18

2015.




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Report

On November 12 2015, Councillors gathered for a workshop on the review, the purposeof which was to identify a general position on the key issues distilled from the discussionpaper itself, but also from the issues, questions and concerns raised by the councillorsduring the past 18 months, particularly in governance meetings.

The general position of the councillors has been expressed in the draft submission.

In addition to submissions from the sector, other contributions will be provided to thereview through technical working groups established by Local Government Victoria toidentify and prioritise key issues as identified in the discussion paper and by the group,and provide options for addressing those issues; operational issues raised by chiefexecutive officers in separate correspondence; and community submissions.

Councillors have the opportunity to make individual submissions.

There will be a further opportunity to make a submission to a discussion paper which willbe developed in 2016 on the basis of responses to this discussion paper.

Resource Implications

There are no resource implications for Council

Attachments

1. Draft submission to the Local Government Act Review

RECOMMENDATION

That Council-

(1) adopt the attached draft submission to the Local Government Act Review; and

(2) send the submission to the Local Government Act Review Secretariat.




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REVIEW OF THE LOCAL GOVERNMENT ACT 1989

SUBMISSION BY GREATER BENDIGO CITY COUNCIL

INTRODUCTION

The overarching principle

Based firmly on its constitutional status as a distinct and essential tier ofdemocratically elected government1, the overarching principle of the Council’ssubmission is the right of a democratically elected body to make decisionssuitable for and answerable to the community that elects it, with state interventionlimited to extreme circumstances.

To this end, the Council submits that the review of the Local Government Act1989 (“Act”) should ensure that the functions and powers conferred on a councilare given full, practical and consistent expression in the revised provisions, and donot remain theoretically aspirational only.

ROLES AND FUNCTIONS

Role of Council

The Council acknowledges the constitutional framework which legitimises its

existence and purpose as a tier of government responsible for the governance ofthe area designated by its municipal boundaries, and constituted bydemocratically elected councillors as the governing body which is accountable forits decisions and actions, and is responsible for ensuring good governance.2

The Council also acknowledges that this governing body includes anadministration which implements the decisions of the Council and facilitates theperformance of the duties and functions of the Council.3

The Council submits the existing functions of a council identified in Part 1A of the

Act are appropriately broad for the purpose of achieving its objectives in settingthe overall direction for the municipality through long-term planning, and adoptinga strategic view of the future, and the plans and policies to achieve this.

The review may wish to consider the current disparity between larger regionalcouncils and smaller district councils in terms of resources and the provision ofservices, and whether different tiers of local government would provide a moreviable future framework to address this.

1 s.74A(1) Constitution Act 19752 s.74(1A) Constitution Act 1975

3 s.74(1A)(c)(i) and (ii) Constitution Act 1975




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New tiers of local government could have larger regional councils with theresources to provide key facilities and services to a broader region, and smallerdistrict councils, sitting within a larger regional area, continue to provide morelocalised decision-making and representation.

Council submits that a new tier of local government with a regional emphasis mayserve to create a better environment for collaboration between larger regionalcouncils and smaller district councils for the provision of shared services nothitherto available or affordable.

Role of a councillor

The Council agrees with the current role of a councillor as recently amended4.

A councillor is a constituent member of the Council5 which exercises its power

through collective resolution, not individually.

The Council acknowledges that the interface between individual councillors andthe administrative arm is one of support through information and advice to enablea councillor to perform his or her decision-making function in the context offormally constituted meetings of the Council. It is not an executive function whichresides solely with the Chief Executive Officer 6. In this regard, the Councilacknowledges the recent amendment to the Act which specifically delineates thetwo functions7, and the Council submits that revised provisions should also makethe specific delineation to avoid confusion or doubt as to the respective functions.

The Council acknowledges that “the only way it can state its opinion is byresolution”8, and submits that revised provisions could affirm this principle, notwith the view to stymie or contain legitimate debate, but rather support thegovernance role and the unity of the Council after a decision has been made andthereby avoid misunderstanding or confusion as to the opinion of the Council, asopposed to the opinion of an individual. In this regard, the Council agrees with therecent amendment to the Act which states that, in performing the role of acouncillor, a councillor must “provide civic leadership in relation to the exercise ofthe various functions and responsibilities of the Council under [the] Act and other

Acts”9.

Independent of a formally constituted meeting of the Council, a councillor mayadvocate on behalf of a constituent. The Council, however, acknowledges that inexercising the role of councillor, a councillor represents the interests of the local

4 s.65 Local Government Act 1989 specifying the role of a councillor.

5 s.5B(1) Local Government Act 1989

6 s.94A Local Government Act 1989.

7 s.65(3) Local Government Act 1989.

8 Lillydale S.C. v Gainey (1930) V.L.R. 73, at p.80; Gifford, K.H. The Victorian Council Meetings Handbook, The Law

Book Company, Melbourne, p.51.9 s.65(2)(c) Local Government Act 1989.




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community as a whole and must consider the diversity of interests and needs ofthe local community,10 not just a portion of it. In this regard, the Council agreeswith the recent amendments to the Act clarifying the role of a councillor andsubmits that the revised provisions should also contain this important distinction.

Role of a mayor

In addition to the current four specified statutory functions of a mayor 11, theCouncil supports the four new functions in the recent amendment to the Act12 toinclude providing guidance to councillors about what is expected of a councillor,acting as the principal spokesperson for the Council, supporting good workingrelations between councillors, and carrying out the civic and ceremonial duties ofthe office of Mayor.

Traditionally, many of the functions of the mayoral office have relied on convention

or the personality of individual incumbents. This situation may lead, in practice, toconfusion and inconsistency as to the relationship between a mayor andcouncillors and a mayor and the administrative arm of the Council. It may alsopotentially lead to conflict and an unreasonable diversion of Council resources.

The recent amendments add further clarity to the function which will serve to addconsistency to the role and avoid misunderstanding or confusion as to itsexercise. The Council submits that revised provisions could specifically affirm themayor is, and remains during the mayoral term, one constituent member of theCouncil as a whole, and that, as a councillor, the role does not include the

performance of any functions that are specified as functions of the Chief ExecutiveOfficer under section 94A of the Act.Election of a Mayor

The Council agrees with the status quo in relation to the election of a mayor: thata mayor be elected by the serving councillors for a term decided by the councillorsin accordance with the current provisions of the Act.

RELATIONSHIP WITH THE STATE

While local government in its current form is a creature of statute, with its distinctstatus defined by Parliament13, this does not mean local government is an arm ofthe State in the same way as a government department is, and councils shouldnot, therefore, be treated as such.

10s.65(1)(b) and (2)(a) Local Government Act 1989.

11 Chair a meeting of a council: s.73(2) Local Government Act 1989; call a special meeting of a council: s.84(1) Local

Government Act 1989; casting (or second) vote: s.90(1)(e) Local Government Act 1989; precedence at all municipal

proceedings within the municipal district: s.73(1) Local Government Act 1989.12

s.73AA Local Government Act 198913

s.74A(1) Constitution Act 1975; Part 2 Local Government Act 1989.




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Although created by statute for a public purpose, councils do not represent theCrown. Councils are separate legal entities charged to ensure the peace, orderand good government of each municipal district.

It is submitted that revised provisions respect the integrity of local government as

a distinct tier of government and give practical expression to the overarchingprinciple that councils be answerable to those who elect it with minimal stategovernment intervention.

To this end, and mindful of practical realities, the Council submits that a newcharter reflect a renegotiated partnership with the state government in accordancewith the role and function of local government intended by the Act.

Revised provisions should regard intervention as a last resort and employprescription only where necessary and not as a matter of course given the direct

relationship between a council and the local community. In this regard, a council isdistinct from other statutory bodies whose public functions are discharged oroverseen by officers appointed or employed by the state.

COUNCIL INCOME

Arguably, local government’s revenue base is contracting due to fiscal constraintsincluding reduced stated and federal funding, the impending rate cap andmandated efficiency savings. Significantly, all of these factors are either externalimpositions or reliance.

In this context, the issue of raising revenue to meet the cost of providing servicesis an important one and in respect of which the status of councils should be takeninto consideration when identifying either alternative or additional income streams.

Council submits that the issue of revenue should be determined by the localcommunity who elect the Council. Applying this principle, a council shoulddetermine its own budget and rates and charges suitable for, and answerable to,the community that elect it. The state should only intervene in extremecircumstances. This is consistent with the overarching principle recognising the

distinct and essential tier of government. It recognises local government in a real,practical and responsible way rather than mere theory, however well-intentioned.

Council acknowledges grants available through the state and federal governmentsto fund services, facilities and programs that align with local, state and nationalstrategies. The level of funding allocated to these grant programs need to reflectcommunity needs. Council accepts its obligation to articulate community prioritiesin seeking funding from various programs.

While the Council does not advocate local government receiving a share of GST,

it does, nevertheless consider it worthwhile revisiting current exemptions whichserve to inhibit or restrict available revenue streams as an alternative. Removing




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the exemption from tax on land used for mining is an example. Another would beremoving the exemption of paying rates for public bodies occupying non-Crownland. Consistent with the overarching principle is the removal of unreasonableimpediments against special charges and allowing councils to set statutory feesbased on cost recovery rather than fixed by the state and applied generally.

COST SHIFTING

In addition to the powers and responsibilities conferred under its own Act, councilsare responsible for functions expected of it under more than 40 other Acts of theVictorian Parliament, including building control, planning, domestic animal control,roads and traffic management, and some public health functions.

The practical consequence of transferring state functions to local government isboth the transfer of cost and responsibility. One follows the other, and the

suggestion that remaining impediments to further transfers be removed meansthis burden will only increase.

While recognising there is no legal impediment to the state transferringresponsibilities to councils under Acts other than the Local Government Act, theCouncil submits that the transfer be accompanied by an appropriate fee by way offunding or an exemption from the imminent rate cap for any rate increase on anongoing basis as needed to offset the shift in cost.

Council submits the consideration and use of a local government impact

statement prior to any transfer of responsibility and cost to local governmentshould be reinforced.

COUNCILLOR CONDUCT

Codifying behaviour

Council submits that, consistent with the principle of upholding the integrity of thisdistinct tier of government, councils should be allowed to draft their respectivecodes of conduct to be adopted by the Council and signed by all councillors. To

impose a standardised code of conduct would serve as another example ofunnecessary prescription and intervention.

Behaviour enforcement

The revised provisions and the role of independent arbiter is supported by theCouncil as it serves to both expedite resolution of matters, currently victim to anunwieldy and protracted process, and also enables the Council itself to deal withthe matter and impose a sanction on the recommendation of the arbiter.




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Penalties

The Council supports the current range of available penalties that could apply fora breach of a code of conduct and submits that directing and completing retrainingmight also be considered a penalty where appropriate. This option may also serve

a practical benefit in addressing aberrant or challenging behaviour, at least in thefirst instance.

Dismissal of a councillor(s)Council submits that the current provisions dealing with councillor misconduct thatmay adversely impact on the ability of a council to function or the health andwellbeing of other councillors or council staff is inadequate and, arguably, unfair interms of addressing the source of the problem where it is identified not to besystemic or widespread but limited to an individual or small group.

Currently, there is no power for the Minister to dismiss a councillor or councillorsidentified as the cause of dysfunction or adverse impact following investigation,there is only power to recommend to the Governor-in-Council that all thecouncillors be suspended14. This may be a disproportionate response to theproblem and unfairly punishes councillors whose behaviour is not questionable orsubject to investigation.

Council acknowledges that a council cannot be dismissed except by an Act ofParliament relating specifically to the Council15. In order to proportionatelyrespond to the aberrant behaviour of an individual councillor or small group of

councillors, Council submits that statutory provision be made for individualcouncillors to be dismissed in circumstances specified by the Act.

Providing for a dismissal mechanism does not violate the overarching principle.Rather, it supports it because it ensures responsible functionality and thecontinuity of a democratically elected body. Intervention through singular removalin these extreme circumstances upholds the integrity of the council as a whole.

The Council acknowledges the recent amendments allowing the Governor-in-Council to stand down a councillor on the recommendation of the Minister 16,

however this standing down is only for the duration of an application to acouncillor conduct panel or VCAT alleging serious misconduct or grossmisconduct. It is a temporary measure, not a fix.

Councillor Conduct PanelsCouncil supports the new provisions relating to the appointment of a PrincipalConduct Panel Registrar with powers to strike-out any applications that arefrivolous or vexatious.

14 s.219(1) Local Government Act 1989

15 s. 74B(2) Constitution Act 197516

s. 36 Local Government Amendment (Improved Governance) Act 2015 (to be proclaimed) which inserts a new

Division 1A in Part 10 of the Local Government Act and s.219AF




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Council submits that conduct panel procedures need to be clarified so thatevidence provided or statements made are done so under oath. It should also beclear that, other than material that is required to be published in the Councilminutes, all documents associated with a panel hearing are confidential.

Council submits that greater clarity should be given to the role of a councillorconduct panel after a decision has been handed down if an application for reviewat VCAT has been filed. There is currently confusion and inconsistency in who areparties to a review and the role of a council, if any.

Conflict of interestThe Council submits the current six pages of overly complicated conflict of interestprovisions are incomprehensible and should be distilled or simplified intosomething more manageable. It is not surprising the Inspectorate has identifiedthese provisions as the highest for investigation for non-compliance.

COUNCILLOR REMUNERATIONCouncil supports the status quo and submits an allowance is an appropriate formof remuneration, although different categories of allowance reflecting the size ofthe municipality and commensurate work load for councillors might be a moreequitable refinement of the current form. Metropolitan and regional city categoriesare two examples.

WARDS, ELECTIONS, VOTING AND COUNTINGThe number of wards for each municipal district should be based on a number of

factors including population, budget, geographic size and the category or type ofcouncil. Council submits that the number set should be determined by the relevantcouncil itself having taken all these factors into consideration. This allows the localcommunity to have ownership over communities of interest and the structure of itsdemocratically elected governing body.

The same principle applies to determining the number of councillors, with amaximum set at perhaps nine.

Similarly, the ideal ward structure should be determined by the relevant council:

that is, whether unsubdivided, single member or multi-member, or wards dividedinto different numbers. Again, this supports local community ownership of itsgoverning structure in accordance with its own needs, rather than having astructure imposed on it. This is a practical recognition of self-determination withminimal intervention or prescription.

Proportional representation

In the case of unsubdivided or multi-member wards, the Council does not supportproportional representation.




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Voting

In regard to voting, the Council supports the status quo: that voting is compulsorywith exemptions for the elderly and non-resident ratepayers.

Entitlement

The Council supports the status quo in regard to the entitlement to vote.

COMMUNITY ENGAGEMENT

Council submits it should be left to each municipality to determine the extent towhich it engages with the community it represents and be answerable for it. Thisis consistent with the principle of minimal prescription in the business ofgoverning. Were a community engagement policy and plan mandated, the Council

submits the content of it should be determined by each municipality in accordancewith its own needs or expectations, and a standard not imposed and prescribed.

Documents

Local Government Act Submission