Tuesday, 7 March 2023
Bills
Local Government (Moira Shire Council) Bill 2023
Local Government (Moira Shire Council) Bill 2023
Introduction and first reading
That I introduce a bill for an act to dismiss the Moira Shire Council, to provide for a second general election for the Moira Shire Council, to make consequential amendments to the Local Government Act 2020 and for other purposes.
Motion agreed to.
Read first time.
Melissa HORNE: Under standing order 61(3)(b) I advise the house that other parties have been provided with a copy of the bill and a briefing in accordance with the standing order, and I therefore move:
That this bill be read a second time immediately.
Motion agreed to.
Statement of compatibility
Melissa HORNE (Williamstown – Minister for Casino, Gaming and Liquor Regulation, Minister for Local Government, Minister for Ports and Freight, Minister for Roads and Road Safety) (12:10): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Local Government (Moira Shire Council) Bill 2023.
Opening paragraphs
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Local Government (Moira Shire Council) Bill 2023.
In my opinion, the Local Government (Moira Shire Council) Bill 2023 as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The proposed Local Government (Moira Shire Council) Bill 2023 (Bill) will dismiss the Moira Shire Council (council) and provide for the appointment of an Administrator or Panel of Administrators for the council.
This follows the report of the Commission of Inquiry into Moira Shire Council which was provide to me on 26 February 2023. The report describes significant governance failures by the council and its administration and finds that governance of council has deteriorated to the point where it can no longer effectively carry out its responsibilities in accordance with the Local Government Act 2020. The report recommended the dismissal of the council until October 2028.
As such, I seek the dismissal of elected councillors at the council for at least 5 years to ensure the restoration of good governance at the council in accordance with the Local Government Act 2020.
The proposed Bill dismisses the council until October 2028.
Human Rights Issues
Human rights protected by the Charter that are relevant to the Bill
Taking part in public life
Section 18 of the Charter establishes a right for an individual to, without discrimination, participate in the conduct of public affairs, to vote and be elected at State and municipal elections, and to have access to the Victorian public service and public office.
The right to participate in the conduct of public affairs broadly relates to the exercise of governmental power by all levels of government, including local government. The right to be elected ensures that eligible voters have a free choice of candidates in an election and, much like the right to vote, is not conferred on all Victorians, but is limited to eligible persons who meet certain criteria. The processes for the appointment, promotion, suspension and dismissal of candidates and councillors are objective, reasonable and non-discriminatory.
Clause 5 (in dismissing the Moira Shire Council) and amendments to the Local Government Act (providing the next general election for the Moira Shire Council will not occur until October 2028), clearly engages the right to take part in public life under section 18 of the Charter.
In this case, the purpose of the limitation is to enable the restoration of good government at the council. Given the significant issues with the Moira Shire Council and the work that is to occur so that it may operate adequately, the limitation is reasonable and justified in a free and democratic society under section 7(2) of the Charter Act.
In April 2022, Ms Marg Allan was appointed as a municipal monitor to the council to review and oversee governance processes and practices on the basis of concerns that had been raised by the council Mayor, Chief Executive Officer and other parties.
On 7 October 2022, Ms Allan identified serious concerns that the leaders of Moira Shire Council were not performing in their roles as is expected or required of them. Further, that there were numerous governance issues and alarming reports in relation to staff safety. This report recommended further intervention was warranted to establish a culture of good governance.
As a result, a Commission of Inquiry comprised of Ms Frances O’Brien KC (Chair) and Mr John Tanner AM was appointed on 28 October 2022, to conduct an inquiry into the council and the Commission provided its final report on 26 February 2023.
In summary, the Commission’s report finds that the governance of Moira Shire Council has deteriorated such that the council can no longer effectively carry out its responsibilities in accordance with the Local Government Act 2020.
The report describes significant governance failures by the council and its administration, including in relation to its management of the performance of its Chief Executive Officer, in ensuring the health and safety of its employees and in giving effect to the financial management principles and community engagement principles under the Local Government Act 2020.
The report further identifies instances of how the council’s failures and neglect have adversely affected members of council staff and the Shire community. This includes the council’s and the administration’s actions in transferring asbestos contaminated waste to unlicensed waste stations constituted serious misconduct, putting staff and residents at potential risk of exposure to asbestos; and the delayed implementation of already approved flood mitigation measures, leaving the township of Numurkah and its residents at serious risk.
The report also describes how the council Chief Executive Officer failed in several of her duties including to comply with the council’s Employee Code of Conduct and mandatory notification of suspected corrupt conduct to IBAC, and to exercise responsible oversight of human resource management practices in breach of the Occupational Health and Safety Act 2004.
The Commission recommended the council be dismissed until 2028. This can only be achieved through legislation.
The serious nature of the Commission’s findings justifies the dismissal of the elected councillors. In addition, the Commission recommends an extended period of administration to October 2028 to ensure there is sufficient time to address the issues raised in its report and provide for the restoration of good governance at the council in accordance with the Local Government Act 2020. This action therefore ensures and recognises the right of electors to be represented with probity, integrity and accountability, and in the interests of the community.
Removal of an elected council is always a matter of last resort and undertaken only in the most serious of circumstances. While it is regrettable that this is necessary, the Government has a responsibility to protect communities from governance failings by their local representatives.
The Local Government Act 2020 provides a less restrictive and more immediate measure, namely suspension pursuant to section 230(1). However, section 230 is not appropriate in this case because it provides for suspension for a maximum period of 12 months, indicating the provision is intended for circumstances in which a short interruption to elected representation will be sufficient to overcome the failures identified.
However, as the Commission’s report demonstrates, the circumstances require the removal of democratic representatives for at least five years.
Privacy and Reputation
Section 13 of the Charter provides that a person has the right not to have his or her privacy, unlawfully or arbitrarily interfered with, and not to have his or her reputation unlawfully attacked.
Clause 5 of the Bill provides for the dismissal of the elected councillors, and therefore purports to restrict the right under section 13 of the Charter.
Any interference with a person’s privacy and reputation is lawful and not arbitrary in this case. The decision to remove the councillors from office follows the appointment of a municipal monitor to the Council and is pursuant to the recommendations of a Commission of Inquiry.
The serious nature of the issues identified at the Council by the Commission, as identified above, clearly warrant the immediate removal of the councillors.
MELISSA HORNE MP
Minister for Local Government
Minister for Casino, Gaming and Liquor Regulation
Minister for Ports and Freight
Minister for Roads and Road Safety
Second reading
That this bill be now read a second time.
This bill will dismiss the Moira Shire Council and provide for the appointment of an administrator or panel of administrators in response to the recommendations of the report from the independent Commission of Inquiry into Moira Shire Council.
A municipal monitor, Marg Allan, was appointed in April 2022 under section 179 of the Local Government Act 2020 to monitor, advise and support the governance processes and practices of the council. This appointment was to assist the council in addressing a number of significant governance issues raised by the council mayor and chief executive officer and other parties.
On 7 October last year the monitor provided her confidential report to me. The report found that the councillors of Moira Shire Council were ‘not performing in their roles as expected or required of them’. Further, neither the mayor nor the CEO were ‘performing their role as required or expected’ and ‘the councillors are unable to properly manage the CEO’.
The monitor further reported that Moira Shire Council had numerous governance issues, a poor organisation culture, with alarming reports of staff safety and culture, and poor community engagement practices and financial management of capital works. The monitor concluded that any improvements were likely to be lost once the monitor’s term expired. The monitor noted that she had referred a number of matters to the Local Government Inspectorate; however, they would take time for their investigation to be complete.
Finally, the monitor concluded that ‘due to the significance and extent of the issues at Moira shire’, she had ‘formed the view that further intervention beyond the appointment of a monitor is warranted, to establish a culture of good governance’.
The municipal monitor was initially appointed until 31 January 2023; however, following such an alarming report I appointed a commission of inquiry under section 200 of the Local Government Act 2020. The commission was established on 28 October 2022 to conduct an inquiry into the affairs of the Moira Shire Council, and the monitor’s appointment ceased.
The terms of reference saw the commissioners focus on the advice provided by the municipal monitor and the Australian Services Union, as well as on matters affecting councillors’ and the administration’s performance of their roles. This was to include the efficiency and effectiveness of governance arrangements in delivering services to its constituents, including financial management and community engagement practices.
The commissioners were required to report back to me by 28 February 2023 and provided their final report to me on 26 February 2023. I have tabled the commissioners’ report, which attaches as appendices the monitor’s final report and the Australian Services Union’s letter.
The commissioners’ report finds that governance of council has deteriorated such that it can no longer effectively carry out its responsibilities in accordance with the Local Government Act 2020.
The report also finds that the chief executive officer failed in her duties, including to comply with the council’s employee code of conduct and to exercise responsible oversight of human resource management practices in breach of the Occupational Health and Safety Act 2004. The council in turn failed to manage the performance of the chief executive officer.
The report further finds that the council and its administration failed to take necessary action to ensure the health and safety of employees; managed the transfer of asbestos-contaminated waste in a manner that constituted serious misconduct and risked the health of staff and residents; delayed implementation of already approved flood mitigation measures, leaving the township of Numurkah and its residents at serious risk; failed to act in accordance with the financial management principles contained in the Local Government Act through the mismanagement of two major capital projects; and failed to provide adequate community representation and to apply the community engagement principles of the Local Government Act 2020 on a shire-wide basis.
The issues identified in the report, which have not been resolved, raise serious concerns about the effectiveness of the council to govern the municipality. The commissioners concluded that the proper functioning of the council needs to be restored and that there needs to be a break in democratically elected representation at the council for at least five years.
The bill will dismiss the council and appoint administrators to perform the powers, functions and duties of the council until a new council is elected.
The bill provides for the next general election for the Moira Shire Council to be held in October 2028, ensuring there is sufficient time to address the issues raised in the commissioners’ report while balancing the strong community interest in having democratically elected representatives.
Dismissing a council by Parliament is the most extreme intervention by the state and is only undertaken in the most serious cases of governance failure. This government is taking the conduct of councils seriously by intervening early to prevent serious governance failures but acting decisively when councils fail their communities.
The issues identified in the commissioners’ report, including the council’s abject failure to make decisions and take appropriate action that ensured the health and safety of employees and residents, failure to provide adequate community representation and major procurement breaches and mismanagement of key capital works, demonstrate extremely serious governance failures warranting the dismissal of the council.
Without this bill, there is a risk of further deterioration of the governance at the council and the probity, integrity and accountability expected of local government.
The community and Parliament expect the highest standards of governance, probity and representation from their councillors and council staff. This bill will ensure good governance in Moira is restored to provide the community the leadership they deserve.
I commend the bill to the house.
Peter WALSH (Murray Plains) (12:17): I move:
That the debate be now adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned until later this day.