Legislative Council Fifty-First Parliament, Third Session (51-3) 51 3 Parliament of South Australia Legislative Council published Question Time Burnside City Council BURNSIDE CITY COUNCIL The Hon. DAVID WINDERLICH Legislative Council BURNSIDE CITY COUNCIL The Hon. DAVID WINDERLICH (15:11): I seek leave to make a brief explanation before asking the Minister for State/Local Government Relations a question about the Burnside city council. Leave granted. The Hon. DAVID WINDERLICH Legislative Council The Hon. DAVID WINDERLICH: Under section 273(b) and (c) of the Local Government Act, the minister has the power to give directions to a council if the minister receives a report from an investigator and considers that a council has contravened or failed to comply with the provisions of the Local Government Act or any another act, has failed to discharge a responsibility under the Local Government Act or any other act, or that an irregularity has occurred in the conduct of the affairs of council. On 24 September and 14 October, I argued that, if the minister asked for an interim report from the investigator Mr MacPherson and had serious concerns as a result of that report, she would have the power under section 273 to order Burnside council to terminate the employment of Mr Neil Jacobs, and she did not challenge that interpretation in her answer to my questions. The process of the reappointment of Mr Neil Jacobs to the position of chief executive officer clearly meets the criteria for giving directions to council for the following reasons. Mr Jacobs was reappointed as chief executive officer instead of being appointed as acting chief executive officer while the process of appointing a new CEO was undertaken by the council. That is a clear breach of section 98 of the Local Government Act. The council is now, arguably, without a duly appointed chief executive officer, and that breaches section 96(1), which requires each council to have an executive officer; and having a chief executive officer with an uncertain legal status over an extended period of time is clearly an irregularity. On 24 September, the minister informed this council that approximately a week earlier the Office of State/Local Government Relations, at the request of the investigator, Mr Ken MacPherson, forwarded a request to Burnside council to consider his concerns about the process of appointing Mr Jacobs that was followed by the Burnside council. As of 27 October, more than six weeks later, the Burnside council has still not responded to the request to clarify the status of Mr Jacobs. My questions are: 1.	Does the minister concede that having the office of chief executive officer occupied by a person whose legal authority is open to challenge is a matter of grave concern? 2.	Is the minister concerned that the matter of the legal status of the Burnside chief executive officer is open to question and is still not resolved six weeks after her office asked council to consider it? 3.	Given that the minister has ruled out seeking an interim report from the investigator, how does she propose to prevent or respond to serious breaches of the Local Government Act that have occurred, or may occur, after the appointment of the investigator but prior to receiving the investigator's final report in February 2010? The Hon. G.E. GAGO Legislative Council Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (15:13): I thank the member for his questions. It is truly like a burnt out old record. I have addressed all of these matters very clearly on the record in this chamber on more than one occasion previously. I do not know whether the honourable member thinks that if he keeps asking the same question eventually he will get the answer he wants. The answer the member wants is for him to be judge and jury in this matter. He has made up his mind. He has second-guessed the outcome of an eminent investigator. He has made up his mind what the outcome is going to be and wants to pre-empt the outcome of that report. It is outrageous. On the one hand he is suggesting that somehow I should manipulate caretaker-type provisions throughout the investigation when, on the other hand, he himself would not support caretaker provisions in the recent Electoral Act legislation that passed through this place. What an absolute hypocrite! It is outrageous hypocrisy. The act is quite clear about my powers, and I have put those on record before. The act does not allow me to put in caretaker-type provisions, that is, to limit the actions of council in relation to the way it carries out its duties. It does not allow me to do that, so not only would it be improper for me to intervene but it would also be illegal—and I have put that on the record. I have put in place a rigorous process to be conducted by someone who is eminently qualified. No-one could doubt his diligence, thoroughness and expertise in this matter. I have put in a highly qualified expert to conduct an investigation, and the matters to which the honourable member refers are in the terms of reference for that investigation. So, these are matters that the investigator can determine within his investigation. For me to take any further action, if that action is appropriate, I am required (as the member points out) to receive a report from the investigator. In this incredibly open and important process of investigation, is the honourable member seriously asking me to intervene in the due process of my own investigation to deliver a pre-emptive outcome? It is absolutely outrageous. The investigator will do his job. I have given him the time he needs; I have extended the time of the reference, as he requested, to complete his investigation thoroughly. One of the reasons for increasing that time was the importance of ensuring that this particular investigation is open to the wider public, so that it is not just an investigation of council, councillors and their decisions but opened up to include any relevant evidence that might be taken from the general public. So, not unexpectedly, the investigation ended up requiring more time and resources than anticipated. As I have said, this investigation needs to be done properly so that its decisions are fair, right, proper and just and cannot be legally challenged at the end of it, so that we do not have to spend another year back in court. As I have said, to suggest that I interfere with that process is outrageous. We have an appropriately qualified person, we have a process that has been given whatever time is needed to be properly carried out and for the correct due diligence to be done to the expected and required standard. Whatever it takes, the investigation will be able to do. I have said time and again in this place that, if the investigator identifies any matter that he believes needs to be brought to my attention before the outcome of any interim or final report, he will do so. I have every confidence that he would do that, but to this point in time he has not—other than the matter previously raised in relation to the CEO's contract of employment, and I have already put all that detail on record. It is outrageous to suggest that I would interfere and pre-empt the outcome of a rigorous and thorough process.