Local Government Legislation Amendment (Miscellaneous) Bill 2012

LOCAL GOVERNMENT LEGISLATION AMENDMENT
(MISCELLANEOUS) BILL 2012

Second reading

Debate resumed from 20 June; motion of Mrs POWELL (Minister for Local Government).

Opposition amendments circulated by Mr WYNNE (Richmond) pursuant to standing orders.

Mr WYNNE
— I rise to lead on behalf of the opposition in relation to the Local Government Legislation Amendment (Miscellaneous) Bill 2012 and in doing so take the opportunity to acknowledge the wonderful inaugural speech by the member for Melbourne, a person with extensive experience in local government at that great training ground of local councillors, the City of Melbourne.

I look forward to the many contributions she will make in this chamber. From our point of view, to have a member of the calibre of the member for Melbourne joining us here will not only provide extra support for me in relation to local government matters but, more broadly, her experience in the law will also be a tremendous asset to us. I commend her on
her inaugural speech, which was an excellent contribution to the house.

I thank the Minister for Local Government and her staff, as usual, for the very good briefing. Good briefings have been a hallmark of what was the Office of Local Government during my time and is now in her time Local Government Victoria. We have people with extensive expertise and experience in Local Government Victoria who have provided me with both an initial briefing and an ongoing conversation in relation to some of the
complexities that surround this bill.

I know it is not proper to do so, but I acknowledge that we have the president of the Municipal Association of Victoria, Cr Bill McArthur, and staff from the MAV as well — Alison Lyon, the chief legal counsel to the MAV — in the house today, listening to this debate. Thank you for that, Speaker. I suggest to the house that the president of the MAV being here today adds a certain import to this debate.

I will canvass a range of issues in my contribution, as will many of my colleagues. Those issues include some quite serious concerns within the local government sector about a number of aspects of the bill. I had a conversation with the minister today. Late last night she provided me with some documentation about a number of these matters. I will
seek to canvass some amendments, but we will also reserve our position in
relation to a third matter as we work between the two houses.

The initial concerns I want to detail to the house essentially revolve around three crucial issues. The first is a provision the government is proposing in the bill to delete a provision that requires local government councillors to vote when they are in the chamber. That is the first issue.

The second issue is the question of the long service leave provisions and a very strong
view, particularly from the Australian Services Union, that the deletion of
this particular provision in section 101(2) has the potential to undermine
fundamental hard-earned rights of local government employees in relation to
accessing their long service leave.

The third matter I canvass is the question of complaints made against the CEO of a council. Again, in my conversations across the local government sector — with the MAV and LGPro, a professional body that represents local government professionals and the MAV as well — quite serious concerns have been expressed about the application of this provision. I will take each of those in sequence. However, before I do that, I advise that I am pleased the government has addressed the question of differential rates. I
canvassed both with the minister and in the public arena that how local
governments seek to ascribe differential rates raises some questions.

In that context I am very aware of what has been the motivation for some of our councils in their application of the differential rate, particularly as it pertains to gaming venues and fast food outlets. While I absolutely understand what underpins the thinking of the
councils and their motivations for striking differential rates in relation to a
number of these businesses, the opposition would argue that this is not an
appropriate use of the differential rate and it ought not to be so. That is not
to say otherwise than that at every turn the free expression of the voice of
local government must be heard on these critical social issues. I absolutely
support that, and in that context local government has played a leading role,
particularly in the health promotion area. There is no better vehicle for
sending a message about healthy lifestyles, healthy living and addressing
questions of health promotion than local government. We fully support that.

Similarly I am well aware of the concerns that a number of municipalities have in relation to the deleterious impact of problem gambling. That is a view I share, and I think it would be fair to say that it is shared across the chamber. Members across this chamber are seriously concerned about the deleterious outcomes for not only individuals but also
their families that are caused by problem gambling. When we were in government
we placed, and indeed this government places, significant emphasis on education
and support for people who sadly are afflicted with an addiction to problem
gambling. However, I argue that to levy differential rates does not address the
fundamental underpinning of what is the motivation of those councils. That is
not to say that the motivation of those councils is not entirely worthy and
honourable. I simply say that using differential rates to achieve that outcome
is not the right mechanism. Thus far the way that the government and the
minister have sought to handle the differential rate issue is appropriate.

Guidelines will be established on how the differential rate can be used and struck, and I understand from conversations with the minister that there will be appropriate engagement with the localgovernment sector more generally. I presume that will possibly be by way of an exposure draft or some form of discussion document prior to the minister making a final decision on those guidelines. We think that is a good thing, and I
thank the minister for doing that and responding to the views of the opposition
that this needs to be addressed.

As I indicated, there are three other matters, and I will go to the amendments that I have opposed. The government is proposing to repeal a provision that requires councillors who are in the chamber to vote. You would think to yourself, ‘Why would you do that?’.

We absolutely oppose this proposition, because it seems to us, and I would have thought it would seem to the broader community, that the most fundamental obligation on an elected representative who is in the chamber is that they exert their democratic rights and vote on all issues.

Ms Kairouz interjected.

Mr WYNNE
— Indeed, as my colleague, a former councillor herself, so rightly says, you
have to make a decision, you have to have a deliberative vote. I would have
thought this was absolutely fundamental to the democratic process. When you
talk to people in the community and they ask, ‘What do you mean? People do not
have to vote?’, we say you should absolutely have to vote — unless you are
conflicted, and then of course you have to leave the room and you are not able
to engage in the process. No-one debates that, but this provision says that is
simply taken out of the bill.

Mrs Powell interjected.

Mr WYNNE
— The minister says, ‘And replace it’ but in fact you do not replace it,
because ultimately there is still no requirement on a member of a council to
have a deliberative vote, to actually perform the act of voting. Councillors do
not have to vote. We say that is wrong. The government will counter in a
different way, and we understand all that.

Mr Morris interjected.

Mr WYNNE
— I have no doubt, the Parliamentary Secretary for Local Government will talk
to that, but the bottom line is that they do not have to vote. We say that is wrong. Not only is it wrong, but it is a failure of governance, and it fails the expectations of the
community that has elected those councillors to vote and to be its voice in the
council. It is nonsense and a failure of governance. In our amendment we
propose that not only should that section be left in the legislation but also
that there should be an action that pertains to it.

As the bill stands, unamended, council members have to vote, but there is no action taken against a member who does not vote. We say there ought to be action taken against a council member who fails to vote, and the action we are suggesting in the amendment before us is that the member be referred to a councillor conduct panel to explain themself. They should be asked, ‘What are the circumstances under which you would not vote? Why have you not voted? Why have you not acted on this fundamental obligation?’. Council
members are sworn officers who take an oath to serve their community.

How do they serve their community? One of the ways is to vote on every matter before them on every occasion they are in the chamber.

We are suggesting not only that that particular provision remain but also that there be a process to address the issue of councillors notvoting. If council members do not vote, it is a breakdown of governance and something ought to be done about that. It ought to be referred to a councillor conduct panel for independent consideration. I put that matter to the minister as a potential action. I know the minister has canvassed other options about
whether a penalty should be attached to a person not voting. She has decided to
take a different path and simply repeal the relevant section of the act. We say
that action is not right and that it sends a poor message to the local
government sector to the effect of, ‘Do your best. Maybe you want to vote;
maybe you don’t want to vote’. This is not on.

Voting is a fundamental element of the democratic
process of local government, and I think it is incumbent on the Minister for
Local Government to give clear direction to the local government sector. We are
coming up to elections in October. If a councillor is in the chamber, they are
in there for everything, unless they are conflicted.

The second matter I want to raise is the question of long service leave provisions. I am aware that there has been significant  interface between the Australian Services Union (ASU) and the office of local government in relation to this matter over a period of time. In my conversations with representatives of the Australian Services Union it seemed
they were hopeful that they could get some of these issues sorted out. There
seemed to be some potential to get them resolved. However, in all of the
conversations I have had with them in the last week to 10 days they have
indicated that these matters remain unaddressed.

I want to read into the record the specific position that the Australians Services Union has taken. It has said we should not undermine existing rights of local government employees, particularly as they relate to long service leave provisions, whether they be full or
part-time.

This is an extremely complex area. I do not dispute that. However, when you boil it down, there is one particular provision here which essentially summarises the debate from the point of view of the Australian Services Union, and it is section 101(2) of the Local Government Act 1989, which states:

(2) Regulations made under this Act with respect to
long service leave cannot —

(a) reduce or adversely affect the position of any
person in respect of service; or

(b) specify levels of benefits for any person or
class of persons which are less than those which applied —

under the Local Government Act 1958 …

This is a crunch issue for employees and for the
Australian Services Union. I refer specifically to a letter which has been
provided to me by the ASU. t says:

Specifically, section 101(2) acts as a safety net
to ensure future governments cannot reduce the long service leave entitlements
of workers in remaking local government long service leave regulations beneath
those entitlements maintained by the 1958 Local Government Act. This includes
benefits such as portability of long service leave between councils.

The practical effect of repealing section 101(2)
can lead directly to the diminution of the long service leave benefits of local
government workers. I am sure that you would agree that such a reversal is not
in the best interests of either the local government workforce or the sector
itself.

This is the position of the Australian Services Union. Not surprisingly we stand unambiguously with the Australian Services Union. The members opposite can smile as much as they like. I will come back to the way that the government has sought to talk with the Australian Services Union. This is a core principle — a core underpinning platform — of the protection of the fundamental rights of local government employees.

In conversation with me the minister said, ‘No, we
will make sure that’s right. We will make sure that we will not attack these
fundamental rights that local government employees have’.

The only way the minister can do that is to move
away from repealing section 101(2), which I repeat states that regulations made
under the act cannot:

(a) reduce or adversely affect the position of any
person in respect of service …

This is core business of the Labor Party and it is
core business of the Australian Services Union. We will never support any
attempt to undermine fundamental rights. In that context we ask the minister to
step back while the bill is between the houses, think about what we are saying
here and enter into conversation with the ASU in a meaningful way.

It is in that context that I was surprised to receive some correspondence, not from the minister to the ASU but from her chief of staff to the ASU. What sort of message does that give the ASU? It sends the message that the minister does not have the time or is not prepared to respond to the union herself. Her chief of staff responded to the union, but
the minister herself did not. I have a fine relationship with her chief of
staff, but he is not the elected representative.

He is not the Minister for Local Government; Mrs
Powell is. He is not the decision-maker; the minister is.

I would have thought it was the minister’s job and,
frankly, I think it is discourteous of her. The letter was written by her
department; there is no doubt about that. It could have had a different address
at the bottom saying, ‘Minister for Local Government’, but no, it was from her chief
of staff. That action speaks volumes, and I think it is a very sad thing.

Thirdly, I go to the question of complaints against a CEO. This is a matter that has been the cause of significant debate in the local government sector for a number of reasons. The first the local government sector knew about these provisions was when the minister tabled them in the house. There had been no consultation with the local government sector on the –

Mrs Powell interjected.

Mr WYNNE
— The minister can shake her head, but I can only tell her what people tell
me.

Mr Weller — You need to do your research.

Mr WYNNE
— Research? Can you spell it? You would not know what research was. The member
should tune in and he will learn a little bit here today. There are serious
questions about the application of the provisions that have been structured
here. Not for one minute do we oppose the general scope of what the government
is suggesting. The bullying, victimisation or sexual harassment of anybody is
repugnant, and we stand absolutely against that whether it is a CEO of a
council or anybody in local government. It is utterly repugnant, and we completely
oppose it.

But what I say to the minister is that we think the bill is fundamentally flawed in relation to two key aspects. We would like to work with her, and we would like her to work further with the local government sector in developing what I think is a wholly worthy proposition — that is, that we send a clear and unambiguous message to the local government sector
that in relation to CEOs, who are in a unique position because they are direct
employees of a council, that they have an absolute obligation to address any
inappropriate behaviour that may be alleged against a CEO in relation to
bullying, victimisation or sexual harassment.

What is absolutely clear from all the correspondence I have received — and I have received quite a lot of correspondence and had quite detailed discussions with the sector about this — is its application when it comes to the question of victimisation. What has to happen?

A complaint is lodged against a CEO and, not surprisingly, that complaint must be in writing and, at the very first opportunity, a council has to address that matter in closed session. I do not have any problem with that as a process question. How, though, do you deal with a vexatious complainant, just in relation to victimisation? Let us take the
bullying and sexual harassment aspect out of it. I might submit that I have
been victimised because my car has been booked 10 times. I might suggest that I
have been victimised because my planning application has been refused, and it
can go on and on with a range of matters that would on every occasion require
the council to address the victimisation aspect in closed session. This is too
loosely drafted, and the government needs to go away and rethink it. I want to
make it absolutely clear that we support the broad thrust of what the
government is proposing in relation to CEOs; we absolutely support that. But
the way the minister has structured this provision is clumsy, and she needs to
address the issues we have raised around vexatious litigants.

I am also aware from its correspondence that the Municipal Association of Victoria is concerned about the application of the provisions that relate to the probity auditor — that is, how the probity auditor is appointed, the level of remuneration and various other machinery aspects that relate to how these matters will be addressed going forward. I put to the minister, as I put to her privately, that we would be happy to work with her
while the bill is between the houses if there is some way we can perhaps
tighten the provisions a bit to address some of the questions around how we
deal with vexatious complainants, but we absolutely agree
with the broad thrust of what the minister is proposing.

In the brief time I still have available to me I say there are a number of aspects of the bill that make a lot of sense — —

Mr Weller — Hear, hear!

Mr WYNNE
— Hear, hear indeed. I think we deal with local government matters in a pretty
bipartisan way — basically in a non-political way — but I would have thought
it was entirely appropriate that where we think there are deficiencies it is
our job to point them out, to seek a response from the government and to try to
clean them up in the broader interests of good governance for local government,
particularly as we are leading up to council elections at the end of October.

Some of the other provisions I have always been concerned about include council decisions being made by assemblies of councillors. These assemblies of councillors have snuck into local government
— —

Mr Katos — You introduced it.

Mr WYNNE
— I did not introduce it.

Mr Katos interjected.

Mr WYNNE
— Brother, wake up! I am of the view that we must ensure transparency in the
process at all times, and we ought not have a circumstance where you are
essentially having a quasi council meeting when a few people get together.

The member for South Barwon is quite right; we moved provisions that restricted any opportunity for local government councillors to have a meeting before a meeting, and we put in place other restraints in terms of declarations and conflicts of interest and so forth, and I think that is a good thing. The more we are in a space where the process is
very clear, unambiguous, transparent and open, the better it is for local government, and we think that is a good provision.

Some concern was expressed about the removal from the act of the provisions prohibiting defamatory statements in elections. As we know, election campaigns can get a bit willing — —

Ms Richardson — Robust.

Mr WYNNE
— Robust, as my colleague the member for Northcote says.

Mr Carbines — Passionate.

Mr WYNNE
— Passionate, as the member for Ivanhoe says, but nonetheless statements ought
not be defamatory. We would argue, and I bow to the wise advice of my legal
colleagues here who will follow me, that there are ways that defamation can be
dealt with through civil action and, while we acknowledge that that is costly
and people would not lightly embark upon that course of action, we think the
Local Government Act 1989 is probably not the right place to have that
particular provision. In that context we would say it is a reasonable provision
to be repealed.

In relation to penalties on late rates, again the Municipal Association of Victoria has indicated to me that there is pretty broad support for that, and moving deadlines for an individual to review their land classification from 30 days to 60 days is a good thing.

It gives people an opportunity to consider their position and harness their arguments. We would also argue that the broader use of technology, particularly in relation to publishing differential rates on a website and so forth, is a good thing. We would argue that they are all good and sensible provisions.

In summary, there are three issues, but they are big issues. The first is the question of the obligation to vote. We think this is fundamental to the democratic process. If you are in the chamber, you have got to vote.

Under the standing orders in this chamber, Speaker, as you know very well, we have to vote. If we are in here, we have to vote. Why should it be different for local government? We say, ‘Be there. Your community expects you to fulfil that fundamental obligation on every occasion when you are in the council chamber’.

If you do not, we say it is a failure of governance and ought to be directed to an appropriate body so that people can explain to a councillor conduct panel why they have chosen not to vote. Of course there is always the right to appeal to the Victorian Civil and Administrative Tribunal, and there is the potential for someone to be suspended. We should be sending a clear and unambiguous message that if you are in the chamber, you have been elected by your community, and it expects you to vote on everything. We expect
you to vote on everything unless you are conflicted.

In relation to the long service leave provisions, again we ask the minister to reflect upon them. We ask her to engage with the Australian Services Union while the bill is between the two houses and talk to the union in a genuine way about what it sees as very deep concerns about the undermining of the fundamental safety net and hard-fought-for provisions around long service leave. The provisions may not affect a lot of people; we
acknowledge that.

But if you are undermining the fundamental rights that people have, we say, ‘Reflect on that’, because we oppose the withdrawal of that particular safety net provision.

Finally, can I say in relation to complaints against the CEO that we completely understand what the motivations are in relation to holding CEOs accountable, but we think the minister has not addressed the question of the potential for vexatious complaint.