Local Government Amendment (Improved Governance) Bill 2015
HUTCHINS (Minister for Local Government) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:
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 Amendment (Improved Governance) Bill 2015.
In my opinion, the Local Government Amendment (Improved Governance) Bill 2015, 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.
The purposes of the bill are to amend the Local Government Act 1989 (‘act’), to enhance the standards of governance and behaviour across local government. The key changes will include requiring newly elected councillors to make a declaration that they will abide by the council’s councillor code of conduct, introduce a mandatory internal resolution procedure within councils and make improvements to the councillor conduct panels including the capacity for panels to hear serious misconduct matters. The amendments will also strengthen powers of the chief municipal inspector (‘CMI’), and allow the minister to seek an order in council to stand down problematic councillors.
The bill also amends the act, the City of Melbourne Act 2001 and the Electoral Act 2002 to make immediate improvements in electoral processes for the forthcoming local government general elections scheduled for October 2016.
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 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, without discrimination.
This bill will strike the right balance in achieving the highest standards of behaviour and conduct, as expected of elected councillors as they exercise their right to participate in public life, while providing appropriate oversight by the state government. The bill also includes reforms to strengthen the local government electoral system, further promoting and increasing opportunities to participate in the conduct of public affairs.
Clauses 4, 5 and 13 of the bill, which amend existing sections 29 and 63, and substitute a new section 64 of the act, provide that a person elected to be a councillor is not capable of acting or continuing to act as a councillor until he or she has made a declaration stating that he or she will abide by the councillor code of conduct. Clause 13 of the bill also amends section 29 of the act to lower the threshold for disqualifying a councillor where convicted of a criminal offence punishable with a term of imprisonment of five years to two years. It also increases the period for which a councillor is disqualified if convicted, from seven to eight years.
Clauses 25 and 26 of the bill, which amend sections 81J and 81K of the act, provide that where a finding of misconduct, serious misconduct or gross misconduct has been made in relation to a councillor by a councillor conduct panel or the Victorian Civil and Administrative Tribunal (‘VCAT’), a range of disciplinary actions may be imposed including directing the councillor to take leave of absence, suspending the councillor or disqualifying the councillor from holding office.
Clause 36 of the bill inserts a new section 219AF in the act which provides that a councillor may be stood down by order in council on the recommendation of the minister on the grounds he or she poses a threat to the safety of other councillors or council staff, or is disruptive of council business, or is not acting in accordance with the role expected of a councillor.
The right to take part in public life is relevant here since there are occasions where people are prevented from serving or continuing to serve as councillor. However, any restrictions are justifiable because there are standards required of people who hold public office, and the community is entitled to be represented by people who are capable of performing their duties as councillor, and do so with integrity and respect of others. It also ensures that appropriate disciplinary measures are taken against councillors depending on the seriousness and nature of their conduct.
Further, clause 34 of the bill inserts new section 81U in the act to provide that the minister must establish a councillor conduct panel list of eligible persons. A person is eligible if the person is an Australian lawyer of more than five years or has any other experience the minister considers relevant to the position.
While this may engage the right to participate in public life, this requirement ensures panel members have appropriate legal and other necessary experience, and therefore a greater likelihood that decisions are made competently, fairly, impartially and in accordance with the principles of natural justice.
Clauses 49 and 82 of the bill remove the requirement for an exhibition roll to be prepared prior to the certification of the final voters roll for a council election. The right to take part in the conduct of public affairs through voting at municipal elections may be relevant here, however it is noted that no longer having an exhibition roll that can be inspected by voters does not prevent a person from inquiring about their voting entitlements with the Victorian Electoral Commission or the local council at any time before the roll closes. It is also noted that the act allows the final voters roll to be subsequently amended before an election if it is found to contain an error or omission.
Clause 56 introduces an additional ground for disqualification from becoming a councillor — where he or she is disqualified from managing a corporation under the Commonwealth Corporations Act. This clause engages the right to participate in the conduct of public affairs through being elected at municipal elections. It is considered that such a prohibition is reasonable as it is not appropriate that an individual banned from managing a corporation should be allowed to act as a local government office-holder with significant responsibility for public assets.
Clause 69 requires all candidates to nominate in person with the returning officer. A candidate will no longer be able to nominate via a third party. The right to be elected in municipal elections is relevant to this clause. However, the right to nominate is not removed outright and the obligation to nominate in person is reasonable as a disincentive to the involvement of ‘dummy’ candidates who run at an election solely to give preferences to another candidate.
Clause 70 requires a candidate’s nomination to be rejected if they are not enrolled on the voters’ roll for the relevant election. The right to be elected at municipal elections is engaged by this clause. It is considered reasonable and not onerous for candidates to take appropriate steps to ensure they are enrolled at local government elections, in the same way that applies in state elections.
Clauses 71 and 72 allow a returning officer to remove a candidate from an election if he or she believes they are disqualified from contesting the election. The right to be elected in municipal elections is engaged here, but it is noted that before making any such decision the returning officer must make inquiries as to the candidate’s bona fides and seek information from them. It is reasonable to remove a candidate from an election if it is clear they are disqualified; to allow a candidate in this instance to contest runs the risk of voiding an election and requiring a new election to be held.
Freedom of movement
Section 12 of the charter provides that every person lawfully within Victoria has the right to move freely within Victoria.
Clause 42 of the bill, which amends section 223B of the act and clause 44, which inserts new section 223CC of the act, provides that the CMI and municipal monitor (‘monitor’) may require a person, by notice, to give all reasonable assistance in connection with the exercise of their powers of examination and investigation, such as appearing before them for questioning.
Whilst this power may interfere with a person’s right of freedom of movement, the CMI or monitor must provide notice in writing to the person to appear before the CMI or monitor, giving that person the opportunity to arrange to do so. Further, the person may refuse to attend if he or she has a lawful excuse, such as that it may incriminate them. Such powers of examination and investigation are important to allow the CMI and monitor to properly perform their statutory functions in ensuring potentially misbehaving councillors are brought to justice and good governance is maintained within local government.
The CMI’s key functions under the bill include investigating and prosecuting offences under the act, advising on and bringing applications for serious and gross misconduct against a councillor, as well as advise on council governance matters and ways of improving governance practices. A monitor will also have a key role in monitoring council governance processes and practices, as well as advise on whether a councillor’s behaviour should result in them being stood down.
Privacy and reputation
Section 13 of the charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and not to have his or her reputation unlawfully attacked.
Clauses 42 and 44 of the bill also provide that the CMI and monitor may require a person, by notice, to produce any document in the person’s custody or control that relates to any matter that is the subject of the CMI’s or monitor’s examination or investigation, and permit any other person entitled to inspect the document to do so. Such documents may contain personal information.
Any interference with a person’s privacy is lawful and not arbitrary in this case, since the requirement to provide information will be clearly set out in the bill and information may only be requested where it is relevant to the examination and investigation, and may only be inspected by the CMI or monitor, or other person entitled to do so. Furthermore, a person may refuse to comply with a request of the CMI or monitor where he or she has a lawful excuse.
Freedom of expression
Section 15 of the charter establishes a right for an individual to seek, receive and impart information and ideas of all kinds, whether orally, in writing, in way of art, in print or other medium.
Clause 18, which inserts new section 81AB of the act, and clause 25, which amends section 81J, provides that if a councillor is found to have breached the councillor code of conduct following an internal resolution procedure, or engaged in misconduct or serious misconduct following a councillor conduct panel hearing, the council or panel, whichever applies, may direct the councillor to make an apology.
The freedom of expression is relevant here since potentially a councillor may be required to make an apology. However, this right would not be limited or if it is, it is justifiable on the basis that requiring a councillor to make an apology ensures that the community is made aware of the councillor’s breach, and serves as a disincentive to the councillor to engage in similar misconduct given their reputation may be compromised as a result. Further, while such reputational issues may engage and interfere with a councillor’s privacy under section 13 of the charter, this statutory requirement is considered lawful and not arbitrary.
Section 20 of the charter provides that a person must not be deprived of his or her property other than in accordance with law.
Clause 36 of the bill inserts new section 219AF in the act, which provides that a councillor’s allowance is to be withheld where that councillor has been stood down by order in council on the recommendation of the minister on the grounds they are a risk to council.
There is no deprivation of property in this instance since the councillor who is required to stand down is unable to perform his or her functions as councillor. For this reason the councillor should not be entitled to an allowance during this period. Further, the withholding of the allowance is only for the period of the order in council and not permanent.
Clauses 42 and 44 of the bill further provide that the CMI and monitor may take possession of any document produced for so long as he or she considers necessary in the exercise of their powers and functions.
Requiring a person to provide the CMI or monitor with documents within their possession does not amount to a permanent deprivation of property, and is therefore compatible with the charter. Also, a person may refuse to comply with a request of the CMI or monitor where he or she has a lawful excuse under section 223C(2) of the act.
Rights in criminal proceedings and right to a fair hearing
Section 25(2)(k) of the charter establishes a right for an individual charged with a criminal offence not to be compelled to testify against himself or herself or to confess guilt. This is also an aspect of the right to a fair trial protected by section 24 of the charter.
Section 24 provides that a person charged with a criminal offence or a party to a civil proceedings has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Clauses 42 and 44 of the bill amend the act to provide that the CMI and monitor may require a person, by notice, to appear before the CMI or monitor for examination on oath and to answer questions, as well as require the person to produce any document that relates to the matter under examination or investigation. Such powers are important to ensure the CMI and monitor can effectively perform their functions under the act and achieve fair, informed and appropriate outcomes in doing so.
Section 223C(2) of the act provides that a person may refuse to comply with a request of the CMI or monitor if that person has a lawful excuse to do so, such as that answering the questions may incriminate them. This demonstrates that the least restrictive approach to interfering with a person’s rights under sections 24 and 25 of the charter has been taken.
In addition, a person appearing before a CMI or inspector is entitled to be represented by a lawyer and be advised of their rights in this regard, which is an important safeguard.
The bill seeks to balance the need for the CMI and monitor to be able to obtain relevant information and properly conduct examinations and investigations against the need to protect the rights of individuals who provide the information. The least restrictive approach has been taken. To the extent that the bill could enable a person’s right to protection against self-incrimination and right to a fair trial to be limited, I consider that this is reasonable and justified.
Further, the bill provides that a councillor who is the subject of a council’s internal resolution procedure, an application for misconduct, serious or gross misconduct before a councillor conduct panel or VCAT, or an investigation of the CMI or monitor, is given a fair hearing by ensuring appropriate requirements and mechanisms are in place. These include making it mandatory for an independent arbiter to be appointed and preside over a council’s internal resolution procedure, that appropriately qualified and experienced persons constitute councillor conduct panels and VCAT, and that councillors are given every opportunity to respond to allegations against them before the arbiter, panel, VCAT, or CMI or monitor. Further, councillors are given a right to seek a review of decisions made by a councillor conduct panel or VCAT under the bill and act.
Natalie Hutchins, MP
Minister for Local Government