Bills

Statutes Amendment (Local Government Elections Review) Bill

Committee Stage

In committee (resumed on motion).

Clauses 29 and 30 passed.

Clause 31.

Mr TELFER: Minister, clause 31 amends section 77 of the Local Government (Elections) Act 1999 to put in an aspect in particular about reimbursement of expenses, and provides that a reimbursement amount will be prescribed within the regulations for:

(c) reimbursement of expenses…incurred by the member in producing printed material…necessary for engaging with the community in relation to local government matters.

It is an interesting one to include, and I would welcome the explanation and/or justification as to why this is included. There are some aspects of reimbursement for local government for different aspects of their duties. Regarding expenses 'necessary for engaging with the community in relation to local government matters', can you give an explanation as to what you envision an expense that is a legitimate one pursuant to this section would entail? Will it be the responsibility of the CEO of a council to decide whether it is printed material that is necessary for engaging with the community, because I think there is a level of ambiguity there which I worry will once again lead to there being a conflict of opinion between those who are making the decisions and those who are trying to put forward the application for reimbursement?

The Hon. J.K. SZAKACS: I thank the member for his question and agree particularly that the avoidance of ambiguity in this clause is particularly important. In saying that, I flag to the chamber that the government is working through some potential technical amendments to clarify this, whether it be by way of drafting note or whether it be through definitions that I can flag. In saying that, I would not be in a better position to be able to put that in this committee stage but I certainly would in time for the consideration of this by the other place.

In terms of the high-end policy position, this is, in our view, an important piece. As the member has rightly said, there is a series of matters that can be reimbursed to members. We in the government and the community, by way of their participation in the participation review that was undertaken by the former minister, have a view that the way that councillors engage with their community is very different from community to community, place to place, council to council. I am sure the member has this across his broad constituency, as I do across mine in the western suburbs.

There are some councillors who do a really good job of engaging with their community. There are others who could do better. This is a targeted and prescribed reimbursement that is deliberately targeted towards encouraging members to better engage with communities, with some particularly important guardrails. Those guardrails, with our really constructive engagement with the Local Government Association, are clear but could be and should be better defined, and we will undertake to do that between the houses. Again, I commit that it will either be done through substantive amendment to the clause or it may be by adding drafting notes to the clause, but either way there is likely to be a government amendment.

Mr TELFER: This is probably around the timing of materials rather than the substance of the materials themselves. If I were an elected member of a local government—and I can envision it now; I can somehow go back in my memory—and I make an application pursuant to this clause for there to be a reimbursement of an amount where I say it is necessary for engaging with the community, at some point there is a line in the timeline where that becomes communication and where it becomes electioneering.

If I were a very astute elected member who liked to try to game the system, I might front end that expense and say to the CEO, 'Here's a legitimate communication point, which I am trying to do with my constituents,' and then put in place material that then could be utilised for electioneering. You could be in a scenario where a council is required to reimburse an elected member for materials that then could be used for the direct future electioneering of that elected member in a subsequent local government election. Can you give me some confidence and clarity, or is it perhaps something that you are considering as part of that other aspect?

The Hon. J.K. SZAKACS: Yes, that is precisely the nature of the technical amendments that we are considering, so time based as well as definitions. That has been really constructive engagement that, at an officer level, the acting chief executive of the Local Government Association has had with the Office of Local Government. So we are committed, as the member has put as well, to ensure this is really clear and really tight and does not lose the substance of what the policy initiative is but also does not inadvertently allow very smart and astute politicians like the member to work the system.

Mr TELFER: This is very prescriptive about printed material. There is printed material and there is the mechanisms for getting printed material to community, which is postage. It is either that or, as we do, going up and down and sticking them in letterboxes. So this is purely prescriptive on the production of printed material. More and more, the communication points between elected members, whether it is at a state, federal or local level, is through social media.

By being prescriptive with the reimbursement obligated for councils to be paying back to elected members for printed material, if the justification is for the encouragement of there to be active and clear communication with community members, there is a whole significant potential communication point that could be justified by an elected member saying, 'To boost this message on my social media to be able to go to a larger cohort, this is something that I think council should be supporting me in.'

By it being one little aspect of communication, is it at the expense of others and is this something that was considered? Because as soon as you start introducing obligation for reimbursement for one aspect then you open up the potential for the rest of it. With this aspect in particular, if this was part of a tranche of review of reimbursement for local government, I would be less reticent because I think that way you get to look at the whole big picture. Because this is just a small little aspect, that is why I am asking these nuanced questions.

The Hon. J.K. SZAKACS: It is by deliberate design that it is tight. The member raises social media, postage and so on. There is nothing quite like using traditional methods to get materials out. Social media largely, if not exclusively, can be free. I acknowledge that there are ways to boost, but within the drafting it was determined to be constrained and not open.

The member is right that once you have an open reimbursement it brings into question a whole series of things and unique ways that a member may utilise reimbursement to 'communicate', and that may not always pass the pub test or may not always be reasonable, so we have kept it tight for printed materials. As I have said, I will foreshadow that we are actively engaging now to bring some technical amendments to ensure that this remains tight and, most importantly, easy and accessible.

Clause passed.

Clauses 32 and 33 passed.

Clause 34.

Mr TELFER: In this aspect in particular, minister, I am trying to understand how this provision impacts the council by-laws, which every council has to have, around movable signs and conceivably could continue in operation for up to seven years with the way that the rotation of policy renewal goes. Will the passage of this provision override these council by-laws, or will each of the 68 councils, which theoretically can each have a slightly different movable signs by-law, need to procure legal advice as to how it impacts its own movable signs by-law?

The Hon. J.K. SZAKACS: If I understand that member's question correctly—please forgive me if I have not—is the question: will individual councils still, through their by-laws, be able to permit corflutes, movable signs?

Mr TELFER: No. It is: how does this provision interact with existing council by-laws around movable signs? Each are a bit different. I have had my stint on the Legislative Review Committee, considering all the different council by-laws that roll their way through. Does this override each of the 68 council by-laws regardless of the nuances of the prescription of movable signs, corflutes?

The Hon. J.K. SZAKACS: Outside of the general legislative principle that state legislation will, to the extent of any inconsistency, prevail over subordinate legislation, I can also say that I am advised that, without seeing each and every by-law, it is difficult to provide that specific advice. At a high level, for example, current by-laws will reflect the existing law, and the existing law provides a framework for which there is the capacity for movable signs to be used. Those by-laws would reflect existing legislation, but those existing by-laws would and do provide the capacity for authorised council officers to remove those movable signs if and where they are not positioned correctly per state legislation.

This will prevail over existing state legislation. It will amend that to ban movable signs, but for the prescribed circumstances. What I can say again, by way of technical amendment on engagement with the acting chief executive of the LGA, is to consider a technical amendment that would allow, without needing to implement specific new by-laws, authorised council officers across each council to remove signs that are not complying with this new section. On the representations of the LGA acting chief executive that has been on the basis of ease of compliance across all councils.

The ACTING CHAIR (Ms Stinson): Third question, or are you going for a supplementary there? You look very pensive.

Mr TELFER: That was only my first, because it was clarification from the minister.

The ACTING CHAIR (Ms Stinson): Fair enough. Keep going.

Mr TELFER: Minister, at this point you envisage that existing council by-laws and this provision within this legislation will both stand side by side?

The Hon. J.K. SZAKACS: To the extent that I can add anything further to my previous answer, again there are many by-laws and they interact with different pieces of legislation in different ways, so I could not hypothesise around how each and every one of these unique by-laws, as you have mentioned, as being a member of the Legislative Review Committee, are drafted slightly differently, other than to say there are prevailing constitutional provisions around state legislation and the way that that proceeds and interacts with other subordinate pieces of legislation. I also flag that a technical amendment that will provide for the ease of this may be achieved through a technical amendment just to provide general application for all councils.

Alternatively, in the engagement that my office, the Office of Local Government, is having with parliamentary counsel, there may be a capacity to deal with this through a technical amendment to the transitional provisions.

Mr TELFER: Looking at section 226(5), speaking about designated events, does a designated event or activity include a pre-polling place and/or does it also include an election candidate public meeting, which under this legislation is going to be obligated to be held by each council? Do you envision those two events being included as a designated event or activity?

The Hon. J.K. SZAKACS: I am advised that, should a public meeting be in person, for example, it would be considered an organised gathering, meeting, function or event relating to an election under paragraph (b).

With respect to your question regarding pre-poll, that would be the precise matter that would be contemplated through future consultation and regulation. But again, with respect to the pre-polling answer I gave previously, there is a fair bit of work that would need to be done. The act provides for a framework under which that would occur but it would be a matter for the government, the minister and regulation to determine how that would intersect.

Clause passed.

Clause 35.

Mr TELFER: Minister, this clause is one we had a bit of discussion about, and I would invite you to furnish the house with some further explanation as to the reasoning for broadening this out to include declared emergencies rather than just public health emergencies.

On reading this legislation—and envisioning that you may not be the local government minister for the extent of this legislation, for as long as it may stand, and making provision for a potential future local government minister who may not be as zealous as you in the way that they put forward the powers that this legislation does envisage—there are quite broad powers that the minister does have on the occasion of the declaration of an emergency within the local government area. To what extent must the exercising of these powers be related directly to addressing the emergency situation? They are quite broad powers but is it envisaged that those broad powers would only be used in response to, or the addressing of, the emergency and the impacts of it in and of itself?

The Hon. J.K. SZAKACS: Can I just confirm again for clarity at this committee stage that there are no new powers conferred to the minister. These are simply extending the powers that are currently under the act that are exercised under considerable constraint from the Public Health Act to include now the Emergency Management Act. The member asks why. Well, we want councils to be able to continue to operate during a flood. We want councils to continue to operate during floods.

As the former emergency services minister, I have seen firsthand the constraints and, frankly, some of the problems when councils are unable to do so because of the practical implications of the impact of these emergencies on their community. I can clarify for the member and for the house there are no new powers conferred to the minister but we are allowing councils to continue to operate under declared emergencies, under the EM act, as is reasonable and the expectation from the community.

Mr TELFER: For clarity and for future ministers who may be reflecting on what powers they may have under this legislation: if, for example, there was a flood event along the River Murray, could the minister direct council staff to do certain actions? Could they use these powers to amalgamate River Murray councils together? Could they use these powers to achieve some other state government policy objective under the umbrella of a declared emergency, because the powers under the public health emergency were, as you say, very prescribed especially in a public health emergency situation. A declared emergency may come about more often and what that declared emergency might be will vary. Can you provide some clarification and confidence to the house on that?

The Hon. J.K. SZAKACS: Perhaps, rather than second-guessing parliament's intention when this passed in the first place, again considering the exercise of this discretionary capacity under 302B is not a new amendment. I would draw the member's attention to the second reading speech in the committee stage as undertaken by Minister Knoll at the time. These were provisions that were passed by a former parliament and the hypothetical approach in which a future minister may apply that discretion would have been contemplated by a previous parliament.

Mr TELFER: Indeed, and the point that I was making was that a public health emergency is not as regular perhaps as a declared emergency, which could be a flood, a fire or a landslide, whatever it might be, so they could be more regular. The other aspect that I would appreciate some clarification on is around the proposed deletion of subsection (8) which removes the minister's requirement to report by a certain date on a review of the operation of the existing clause. This was specifically related to the COVID emergency but you have not included a similar reporting requirement with respect to the exercise of ministerial powers in regard to a future emergency.

Within the existing legislation, there was a prescription by a certain date, because it was a very narrow public health emergency situation that it was referring to, a reporting mechanism, a required reporting mechanism, but with the broadening out of the declared emergency there is no reporting mechanism in place to assure that the minister is accountable to parliament when it comes to the exercising of these significant ministerial powers.

The Hon. J.K. SZAKACS: The best I can advise the member is that that was a decision taken by the parliament at the time it had a sunset date: 2021. That was a point-in-time review and that was the will of parliament at the time.

Mr TELFER: I have a supplementary question to that, with your indulgence. The question was: why did you not see fit in the drafting of this aspect to put in our requirement for the minister of the day to report to parliament on their exercising of their powers under the declared emergency situation?

The Hon. J.K. SZAKACS: Because there are no new powers that this amendment is conferring to the minister.

Clause passed.

Remaining clauses (36 to 41) and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Industry, Innovation and Science, Minister for Local Government, Minister for Veterans' Affairs) (17:20): I move:

That this bill be now read a third time.

In doing so, can I thank all of the members who contributed to the second reading debate and particularly the member for Flinders for the very constructive way that he engaged in committee. I commend the bill to the house.

Bill read a third time and passed.