08 May 2013
(Local Government Amendment (Early Intervention) Bill 2013 Second Reading, Legislative Assembly, NSW Parliament)
I foreshadow that at the conclusion of my speech I will move a motion that the question be amended by deleting the word "now" and inserting the words "30 October 2013", by which time we will know the outcome of the local government review. The Local Government Amendment (Early Intervention) Bill 2013 provides partisan State governments with new tools to manipulate councils that they claim are underperforming. The Government says the bill introduces new ways to help councils improve if they are failing in their duties. It says this contrasts with departmental investigations and public inquiries that can currently occur but that lead only to dismissal. According to the Government, the ministerial powers in the bill are needed to implement early interventions.
Let me outline the provisions in the bill. The director general and the Minister can force councils to provide information on operations. The Minister can issue performance improvement orders and appoint advisers to help councils comply. The Minister can suspend all councillors for up to three months if he or she believes that it is warranted. A ministerially appointed interim administrator will exercise the council's functions during this time. The Minister will be able to suspend a council while a public inquiry is occurring if he or she believes that continued operation is not in the public interest. The Minister can ask the Governor to dismiss a council without the current need for a second public inquiry if the council fails to comply with a performance improvement order.
While the Government pretends that these graded interventions—from soft in the case of performance improvement orders, to severe in the case of suspension—allow new options that enable an elected council to continue operations, they merely provide new tools for the Executive to exercise power over council sovereignty. A government could undermine a council of different political persuasion or prevent councils from adopting innovative approaches to issues that may not have the support of the Minister or the Division of Local Government. The softer option in the bill could be used as a covert tool to harass and undermine councils. This is of particular concern, given that poor performance is not defined in the bill and is left open to interpretation to justify ministerial interference.
In his speech the Minister gave only two examples of what could constitute poor performance. The first is where councillors cannot properly manage a general manager's poor performance, yet the Minister failed to provide examples of this. The second is where a group of councillors deliberately deprives the council of a quorum, which could easily be dealt with by targeted amendments to the Local Government Act. Neither example justifies the sweeping powers in the bill. How will this Minister and future Ministers determine whether a council is underperforming? The guidelines to be issued by the Minister do little to allay concerns, given that they can be lawfully ignored or changed in the future without parliamentary scrutiny. I foreshadow that I will move an amendment at a later stage to require the inclusion of criteria that must be met before the Minister can issue a performance improvement order in the regulations.
The current Independent Commission Against Corruption investigations have exposed the risks of giving Ministers unchecked powers. The bill fails to provide transparency and accountability provisions to prevent corrupt decisions. What if Eddie Obeid had these powers? Could performance improvement orders and the risk of suspension be used to harass councils that do not rezone land requested by lobbyists, that oppose fracking or that introduce bike lanes? While I acknowledge that defining poor performance could be difficult, ministerial discretion and unchecked power are undemocratic and dangerous.
The bill allows the Minister to suspend a council even if it has not failed to comply with a performance improvement order. I will move amendments at a later stage to allow suspensions only when councils have been given the opportunity and failed to address performance issues through a performance improvement order. I also will move amendments to remove the Minister's ability to suspend a council without first giving that council notice and to require notice when the Minister intends to extend a suspension.
The subtle change to the introduction to chapter 13 of the Act is of concern. The chapter sets out how councils are made accountable for their actions. The introduction states that councils are directly accountable to the residents and ratepayers in their local government area, with the Minister having a supervisory role. The bill changes this relationship and makes councils also accountable to the Minister. This could lead to councils being faced with a conflict. Councils often advocate on behalf of their community against State government decisions and have policies independent from and sometimes at odds with government. This bill will effectively turn councils into State-owned corporations that can be sacked for failure to comply with the interests and agenda of the government.
Democracy demands that councils be accountable to their communities over and above the government of the day. I foreshadow that I will move amendments at a later stage to restore the direct accountability of councils to their communities with the Minister retaining his or her supervisory role as is currently the case. People elect local councils to plan for their communities and to manage day-to-day services such as waste, childcare and libraries. If they are unhappy with how this is done, they can vote the council out at the next election. Interference should be only a last resort where there is serious and proven dysfunction. The current process, which requires a public inquiry that can result in the council being dismissed, is rigorous, open and transparent. That is as it should be because dismissing elected representatives is serious. The public nature of an inquiry provides accountability against dismissal or interference for political reasons.
The bill has been introduced at a time when the Government is conducting a review of local government, with amalgamations already having been recommended. It will be interesting to see whether the Government adheres to its commitment to no forced amalgamations or uses powers in the bill to push through an amalgamation agenda through interference and dismissal. The Government should not be pushing any changes to local government while reviews are being undertaken. The Local Government Review Panel has just released a discussion paper and its final report to the Government is due by September. The Local Government Act Taskforce has circulated a discussion paper for public comment and will hold workshops during May, with submissions due to be received by the end of June.
The reviews should be combined to establish holistic and comprehensive recommendations for local government. This bill should not proceed until the reviews are completed. I foreshadow that I will move to amend the bill so that debate is adjourned and resumed only after the reviews are completed. If the amendment is successful, it will enable all members to make a more informed decision on this legislation. By introducing the bill without consultation with councils and releasing only some information after protests from councillors and mayors, the Minister has damaged the trust between local government and State Government. If the Government wants lasting local government reform, that will occur only through partnerships and cooperation with councils. By supporting my amendment to postpone debate on the bill the Government will be able to further engage with councils and restore trust.
The bill comes just months after my Independent predecessor, Clover Moore, was forced to resign from Parliament due to anti-democratic legislation aimed at her. My community believes that that issue and the issues purported to be addressed by the bill are linked. The Government could have more in store to deprive inner city areas of their chosen representatives. Inner city residents already have had decisions that affect them removed from their local representatives. Areas have been excised from the city of Sydney and delivered to unelected planning bodies, including the Barangaroo Delivery Authority and the Sydney Harbour Foreshore Authority. Multiple developments that have come under part 3A include the Carlton United Brewery site, the St Vincent's hospital precinct and the Scottish Hospital.
Local government is like any tier of government: it is run by elected representatives. But unlike State and Federal governments, councils often have to put up with discipline, interference and manipulation. I believe local government will stop being the plaything of the government of the day only if it achieves constitutional recognition. The bill diminishes democracy and opens up planning to corruption and influence by vested interests. At the 2011 State election did the O'Farrell-Stoner Coalition not promise to return local decisions to local councils? I will oppose the bill. I move:
- That the question be amended by leaving out the word "now" and adding the words "on 30 October 2013".
Question—That the word proposed to be left out stand—put.
The House divided.
Mr R. C. Williams
Mr J. D. Williams
Question resolved in the affirmative.
Amendment of Mr Alex Greenwich negatived.