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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Statutes Amendment (Local Government Review) Bill

Committee Stage

In committee.

(Continued from 24 September 2020.)

Clause 1.

Ms STINSON: I might take this opportunity to rise and note that I have just come to my desk to see that there are another 14 amendments that have been filed by the Deputy Premier. Considering that on the last occasion the Deputy Premier filed 126 amendments and told the house that there would be ample time for those on this side to be able to consult with stakeholders and then be in a position to go through the committee stage and possibly even vote on this this week, it is puzzling why we now suddenly have another 14 amendments that this side has neither been briefed on nor even had the chance to read and we are going into the committee stage.

There is certainly no opportunity for me to consult with stakeholders, for me to put it through our party processes. So if the Attorney is able to, it would be great to know what her position is, whether she anticipates that we will be looking at these clauses this week and what her attitude is, considering that on the previous occasion she said she would be providing ample time for those of us on this side to get across this incredibly complex bill and the now, I think it is, 415 amendments that have been filed.

The Hon. V.A. CHAPMAN: I fully appreciate the issues the member has raised, and I can indicate that there are two further amendments. By way of explanation to the committee, and I hope this will assist the member, the amendments—I have them identified as No. 2, but 67(3) is their tabled number—are in relation to the election matters raised in amendments by the member for Waite. They have been rewritten, and I will, of course, explain how they have been rewritten.

They relate to a subject matter that is already extant, if I can describe it that way. Secondly, there is a minor change in relation to the rate monitoring aspect, so although 67(4) looks like a comprehensive list it is really a repeat of what is already in the amendments, but rewritten with some amendment. To give an explanation of that, in the proposed new section 22, which is described in 67(4) under paragraph (e), in the current amendments it reads 'any other matter prescribed by regulation', I think, 'or as set by ESCOSA'.

Ms Stinson: It was.

The Hon. V.A. CHAPMAN: It was, and the removal of 'as set by ESCOSA' came after discussions were considered with the LGA only on Friday. This is not meant to be any surprise; it is really a fairly minor change at their request. So the words 'or determined by the designated authority' were the words removed in the bill. I more than happy to slowly go through those. I appreciate that sometimes these things do change a bit when the relevant authorities come forward. The member for Waite may also wish to make some comment because this is an issue he has raised in 67(3).

I think on the general comment that further amendments have come in, we listened to stakeholders throughout this and are keen to ensure that everyone has a say. If there are any minor matters that need to be fixed, we are fixing them; that is precisely what the situation is. If the member would like to have, perhaps in the luncheon break, any extra information I am happy to provide it. Alternatively, as we go through this she may see the relatively minor nature of what we are talking about.

Ms STINSON: I thank the Attorney for that explanation and will take her up on every opportunity given for our side to get across this, particularly at this incredibly late stage. I have to say I find it remarkable that this is the third time—or the fourth, really—the government has come forward with amendments to its own bill. It seems to be a most scrappy and disorganised way to put forward legislation, legislation that is very detailed, very complex and really does touch the lives of real people and that requires us, as MPs, to consult with our communities.

I am disappointed in the way this has been handled, but I thank the Attorney for her explanation and for the extension of the offer of support from her office. The fact is there is not much time for me to avail myself of that assistance if I am in the house dealing with the committee stage of this bill, though.

Ms BEDFORD: Can the Attorney-General advise what consultation was undertaken on this bill outside of government?

The Hon. V.A. CHAPMAN: I will start with the Electoral Commission of SA, which is an independent statutory agency, so I do not want it to be seen as being just a government department, because clearly it is not. Significantly, also the Local Government Association, which of course is the representative body for councils has—through its representatives, the president, Mr Sam Telfer, in my short time with the management of this bill, Mr Lamb and Mr Pinnegar in particular—had, as I understand it, a very significant period of involvement in the development of this legislation before it came to the parliament.

I think it has been a two-year exercise in what seems to be common ground as to some fairly concentrated efforts by that organisation in particular. I have to hand a number of their submissions over the time and, as I say, in the short time I have been handling them they have also been a very integral part of that. Indeed, I place on the record my appreciation to them.

There was consultation with the councils themselves and, of course, we have a number of councils in South Australia. I think there are 68 from memory. We also have the Outback Communities Authority, which represents all those people who live in a huge expanse of the state. We also have a number of agencies under municipal arrangements that are different, like Roxby Downs and some of our Indigenous communities. We have a very significant spectrum of those, and that includes a number of their advisers who have also been present, with accounting and legal advice that has been given through that process. I am advised that that has also occurred over 2019 and 2020.

Regarding consultation with the Local Government Association—this is for my education as well; the member asked about consultation—between February and August 2019 there was consultation on the idea generally. There was the release of the discussion paper in August 2019. There was further consultation and attendances at regional and other council forums until December 2019 and then there was significant consultation back out in relation to the bill once drafted. So it has had a long gestation period. It was introduced by the former minister, the Hon. Stephan Knoll, and since July I have had the carriage of this matter and it has certainly been a priority for me—and, I think, the LGA, who must be just about exhausted by this process—to advance it.

In light of some of the commentary that has already been made in committee, I just reinforce the fact that as the minister responsible for this I have tried as much as I can to actually accommodate and receive further, even last-minute, aspects that need consideration and, where necessary, have made some minor redrafting to accommodate that. I note the concern, particularly of the member for Badcoe, about late notice but this is the real world and parliament is expected to receive this. If it is meritorious, we need to consider it and we need to add that in. If that means we have some extra or replacement clauses, then so be it.

I will do everything I can to make sure that we provide the reform that is sought by the local government members in our state and that we get it as right as we possibly can. Obviously, the process of parliament is to look at any other aspects that may be brought up by members, and sometimes they result in further amendment. However, I can assure the member for Florey that this has been a very long period and, although I have not been personally involved in it, I have certainly had councils in my own electorate raise issues with me and, for different portfolio responsibilities, had a number of others around the state raise issues which I am pleased to see are being addressed in this broad reform in the bill.

Clause passed.

Clause 2 passed.

Clause 3.

Ms STINSON: My question for the Attorney is: why has this wording been changed? It now talks about providing 'appropriate financial contributions by ratepayers to those services and facilities', and I refer to Objects at (f). I wonder if the Attorney could expand on—

The Hon. V.A. Chapman interjecting:

Ms STINSON: I am referring to clause 3. The clause 3 I have is Objects. Is that what the Attorney has?

The CHAIR: I think it is clause 3—Amendment provisions. What did you suggest that might be, member for Badcoe? Clause 4 is Objects.

Ms STINSON: In that case, clause 4, if that is the one that is Objects, sir.

The CHAIR: Given that, we will look to pass clause 3.

Clause passed.

Clause 4.

Ms STINSON: Just to be sure, I understand that this one is titled Objects and it refers to (f): an insertion after 'communities' of 'and to provide for appropriate financial contributions by ratepayers to those services and facilities'. I wonder if the Attorney could elaborate on why this wording is being changed. The concern that I hold is whether this opens a path to a greater user-pays model of delivering council services. It seems to me that changing the wording in this way does provide an avenue for more of a user-pays approach, and I wonder if the Attorney can elaborate on whether that is in fact the intention of this change or whether there is some other objective behind it.

The Hon. V.A. CHAPMAN: Can I encourage the member to read all the objects because I think this will set the context of what is being referred to. This relates to an object under this legislation to balance the services provided by councils with the obligation on the contributions to be made by ratepayers. In other words, there is a balancing responsibility there if I were to say that it is not open to councils to simply say, 'We are going to have a gold-plated service over here and expect ratepayers to pay it.' It is a balancing of those areas of responsibility that is referred to here, not whether they provide those services by any other means.

Clause passed.

Clause 5.

The Hon. V.A. CHAPMAN: I move:

Amendment No 1 [DepPrem–1]—

Page 8, lines 28 and 29 [clause 5(4)]—Delete subclause (4)

This amendment essentially removes the designated authority from the definition. I indicate that this is a technical consequential amendment related to the proposed amendments to the rate monitoring system. As this is consequential, before we get to the substantive, I think it is important that I explain to the committee. After further discussion with the local government authority and their opportunity to consult with their members, instead of having the designated authority through this process, we have settled upon ESCOSA being the relevant party to undertake that responsibility. So we are removing the designated authority from the definitions.

Amendment carried; clause as amended passed.

Clause 6.

The Hon. V.A. CHAPMAN: I move:

Amendment No 2 [DepPrem–1]—

Page 9, lines 31 to 33 [clause 6, inserted paragraph (b)]—Delete 'the context of the capacity and willingness of ratepayers to pay for those services and facilities' and substitute 'a way that is fair to ratepayers'

This amendment deletes certain words and substitutes 'a way that is fair to ratepayers'. This clause has been amended in response to concerns from the sector that a principle that councils should make decisions about the services and facilities they will provide should be made in the context of their ratepayers' capacity and willingness to pay for these services.

Concerns, I am advised, were expressed that this may cause particular ratepayers to challenge the decisions of their council regarding their rating policies. The amended clause, therefore, captures the intent of the reform—that is, to recognise that councils make critical decisions on how to balance the desired services and facilities with the need for ratepayers to pay for them. It clarifies that councils do this with the needs of all their ratepayers in mind.

Mr DULUK: A question to the Attorney. Attorney, does the use of the phrase 'in a way that is fair to ratepayers' give ratepayers or groups of ratepayers a new legal right to challenge council decisions on the basis that the decision was not fair to them in the first place?

The Hon. V.A. CHAPMAN: I thought I had made that clear in the explanation but, for the benefit of the member, I will explain. If anything, this is to ensure that councils have to consider the benefit of all ratepayers and that they are not going to be held to ransom or held accountable because of a noisy few. That is the way I understand it.

So it is important that councils not be held to ransom, in that sense or under some duress, to acquiesce to a few if, in fact, the overall indication is clearly for the benefit of their ratepayers. But here we are trying to balance the need for councils to make decisions about what services and provisions are made by the council in their plans and annual budgets and the like with the capacity for their ratepayer base, and that is all of them.

We are trying, in this instance, to give some protection to councils for immunity from responsibility to a noisy few, but, by the same token, they have an overall obligation to balance that. I think the example I gave earlier is that it is not open to councils to provide a gold-plated service here that might benefit a few but which is clearly outside of the capacity of their ratepayer base.

Ms STINSON: I am following on from the member for Waite's question. This is a change since the bill that was brought in by former Minister Knoll. I wonder whether the Attorney could elaborate on what has changed since former Minister Knoll put this amendment forward in the first place: is it simply that the Attorney did not like the language that was used, or is it a different ideological perspective that the Attorney has that maybe was not shared by Minister Knoll?

What does it actually mean to be replacing 'the context of the capacity and willingness of ratepayers to pay for those services and facilities' with 'a way that is fair to ratepayers'? Considering it was the government's amendment initially and now you have amended your own amendment, I am seeking some clarification as to why you have done that. Maybe the Attorney could also inform us whether this was the result of any particular stakeholder putting forward this form of words.

The Hon. V.A. CHAPMAN: I think it is fair to say that, in the drafting of this, the LGA raised the question of the word 'willingness' in relation to the matter. I do not suggest for a moment that there is any change of view from one minister to another on this. I think it is a matter of identifying and making it as crystal clear as we can in the legislation that, when there are competing responsibilities, we as a parliament try to ensure that ratepayers themselves are not overly burdened and also that there is a criterion of responsibility, which sometimes does have tensions.

But there has to be some relief—or protection, I suppose—for the councils themselves that make that decision. The ultimate party that they are accountable to is of course their ratepayers at the next election, by-election or whatever is to come. They have a level of accountability, but really this is a matter in which we are looking at the capacity, overall, of the ratepayer base, as distinct from whether they like paying rates.

Ms STINSON: At the risk of possibly repeating what the member for Waite asked about, can the Attorney inform me whether the original wording created grounds for council budgetary decisions to be contested, and, if so, how the new wording might ameliorate or eliminate that risk?

The Hon. V.A. CHAPMAN: I do not know what advice was obtained in relation to individual councils' budgetary considerations, but if the member is asking if this in some way is opening the door for judicial review, the fact is that council decisions are reviewable by law anyway. This is in no way intended, nor is it proposed, to in any way open the floodgates of review of a budgetary decision or any other decision of council.

Ms STINSON: Paragraph (b) was deleted, which stated 'to provide and coordinate various public services and facilities and to develop its community and resources in a socially just and ecologically sustainable manner'. Why has that been deleted? One would have thought that articulating and indeed asking a council to have an eye to social justice and ecological sustainability would be a good thing, yet the previous minister, in his original amendments, decided to delete that.

Is that reflected elsewhere in the bill, or is it seen as unnecessary for some reason to outline that councils should have an eye to those issues? What is the rationale for the Attorney or the government deciding to delete that sentence, when maybe it could have just added the bit that it now seeks to replace it with? Has this come out of any particular feedback from stakeholders?

The Hon. V.A. CHAPMAN: All of this is as a result of feedback from stakeholders, but current section 6 on the principal role of council is where the deletion is occurring. But I just indicate to the member, although we would say this is a replacement order of things, under 'Functions of a council', which is in section 7, you will see paragraph (e) states:

(e) to manage, develop, protect, restore, enhance and conserve the environment in an ecologically sustainable manner, and to improve amenity;

And under paragraph (c):

(c) to provide for the welfare, well-being and interests of individuals and groups within its community;

Although we have changed the benefit to the community section in clause 6(b), the detail of how that applies and what is to the benefit of community is outlined in section 7 of the act.

Amendment carried; clause as amended passed.

Clause 7.

Ms STINSON: I wonder if the Attorney could elaborate on the reasons for removing the specifications of the types of different services provided by a council. Is there an expectation that the council no longer provide those services, which I think is unlikely, or is this a way to provide greater flexibility for councils to be able to subcontract, outsource or indeed privatise local government services?

The Hon. V.A. CHAPMAN: I want to reassure the member it has nothing to do with the mode in which they provide the services; it is simply to provide more flexibility of what services it provides.

Ms STINSON: Could the Attorney provide some more detail on that? She is talking about types of services. What is listed here is obviously the range of different services that one would expect councils to provide. They are being deleted from the act. I am referring to the section that says:

…including electricity, gas and water services, and waste collection, control or disposal services or facilities), health, welfare or community services or facilities, and cultural or recreational services or facilities)

And simply replacing that by saying 'financial contribution to be made by ratepayers to the resources of the council'.

I am asking why it is necessary that that list be removed—surely those are things that it would be anticipated a council would provide. It is fairly broad and encompassing. I am trying to understand why that list is being removed, if not to provide for councils to outsource those services to other entities to pay for in future.

The Hon. V.A. CHAPMAN: It is a desire on behalf of the council to not have the prescriptive list. To give an example, things do change. There is only one council, as I understand it, in the whole of South Australia that provides electricity to its town, namely, Coober Pedy. Times do change. On the other hand, there is nothing in this list about libraries, yet I can hardly think of any councils around the state that do not provide library services. There are modern technology services that they provide within library services and other deliveries. One can hire films from libraries—there are a whole lot of other services councils provide in a contemporary manner—so, rather than try to be prescriptive about this it is again about allowing that flexibility and to be able to accommodate change in relation to that.

It has moved from trying to be an inclusive list. There are gas and water services. My own local council at Burnside provides some water services—it has historically—and regulates them. I have managed in my time in the parliament to get them transferred to SA Water so that we have a reliable source of water for people who are less than eight kilometres from the GPO. These things change, and the services that were given by councils last century, or 50 years ago, are very different. So, rather than trying to contemporise it and be prescriptive, we give the general list.

I want to reassure the house that the functions of the councils, in ensuring that they provide social and welfare services, are very important. They are still in the functions clause. To give a more modern area of responsibility: in the time I have been in the parliament the previous government via this parliament proposed that councils be responsible for noise and nuisance matters. This was a new area of responsibility, which historically sometimes the licensees of hotels, authorities such as CBS and/or police, who might still be in an assistant role, had managed those things. The councils were sent those areas of responsibility.

I remember particularly, because some councils raised with me, 'How come this is happening? Why do we suddenly have to pick up responsibility for this?' In any event, these things do change, is my point. On the other hand, other councils go into the waste business, which is big business these days, both in recycling, disposal and sale, or provide amenities within their council for other councils to use that on a shared basis. These are all the sorts of initiatives in the 21st century, which I hope gives the honourable member some understanding of how these things change and change often.

Ms STINSON: Thank you, Attorney. I appreciate that response. Has the Attorney received any communication from the ASU, AWU or, indeed, the LGA in relation to this change? What submissions has she received from them? I understand that there is concern and even opposition from those organisations in relation to removing this list of services. Can the Attorney provide some insight as to the representations that have been made to her in relation to this particular clause?

The Hon. V.A. CHAPMAN: I am advised that we are not aware of any. I have not specifically sighted any submissions by the ASU or the AWU, or any correspondence, but to the best of my knowledge it has not been raised by the LGA.

Clause passed.

Clauses 8 to 10 passed.

Clause 11.

The Hon. V.A. CHAPMAN: If I might assist the committee, clause 9, which we have now passed, which was the insertion of section 11A, relating to the number of members, is an important reform. I am happy to answer any questions on it.

Ms STINSON: Under the banner of clause 11, I will ask a few questions. Can the Attorney tell us what feedback she has received from the LGA and councils, and in particular the councils who are affected by this change to a maximum of 12 members? Also, what does this actually mean for councils that have already started a representation review or will do so before the commencement of the new act?

The Hon. V.A. CHAPMAN: This is an area which emanates from the Productivity Commission recommending that councils consider having the maximum of 12 in their membership. For many councils over the years, particularly those that have very large membership arising out of amalgamations of councils historically, I think there has been a general impetus to be able to understand the benefits in reducing the number of council members. Many of the councils have already addressed this.

I think if I were to fairly describe the LGA's position as to where we go with providing some measure of impetus to this for those that have not it is to suggest that some are at 12 plus one, some have already reduced and they are working on it and they will have to do reviews every few years. Although some have not activated that change at any sort of reasonable pace, that has just let that play out as it is, but council amalgamations sometimes occurred decades ago. The Productivity Commission highlighted some of the difficulties for councils in being able to continue to function in a more efficient way and have the reforms that they want to enjoy, unless this is actually brought about.

The process here is one where they do address this issue. They do so, I am advised, within certain restrictions on that—namely, those that have already done their review (and I think two councils have more than 12) have up until the elections in 2022 to work out how they are going to structure that. Then there is a group of other councils to which this would not apply with this regime until over a five-year period.

The process is one where councils that have not done their reviews but are coming up to do the reviews and that are offending the maximum 12 rule have a very significant period into the future to address this. One of the difficulties that councils have—and I fully understand it—is who do they get rid of? To be perfectly frank, it is not easy for the council: they might have 26 members sitting around the table, they have amalgamated three or four councils over the years, everyone is represented and nobody wants to go. If they are going to redraw the wards, if they have wards or not, or whether they are going to reduce the number, how is that going to be addressed?

Everyone, including councils, is accountable at their elections. They will be having elections in 2022. Two councils out of 68 need to address this issue. They will have until the election in 2022 to work out the formula. I think this will give them some cover to say to their electorate, 'We just can't keep going along at a glacial pace on this. We don't quite know how we're going to do it, but we do have to address it.' It will assist councils, I suggest, in being able to resolve that difficult situation otherwise of local people facing losing a spot.

I just remind all elected members, and it goes for every one of us here too, that we are accountable and that when we come up for election it is open to the voters and/or ratepayers to make the decision about who is either in this place or in their councils. We are all accountable. The government agrees with the Productivity Commission's assessment on this, and I think the LGA generally do, too, but there are some councils that are really finding this difficult to have to make a decision on, and this will ensure that they do.

Ms STINSON: Thank you, Attorney. I appreciate that and can indicate that we will be supporting this amendment. As we are on clause 11, I wanted to take the opportunity to also state a position in relation to the intention there, which is the deletion of a section that talks about publishing a copy of a notice in a newspaper circulating within its area. There are a great many references throughout the amendments, all different sets of the amendments, that talk about removing the requirement for notices to be put in newspapers circulating in the relevant council area.

Rather than opposing each of those individual references, taking on board the Chair's concern for time and also the complexity of this bill, I thought it prudent to simply outline that Labor is against those amendments that are sprinkled throughout the 416 amendments we are looking at. Our position is that we should be having notifications in local newspapers. Local newspapers are certainly still an avenue for people, whether they are in the city, in suburban areas or in the country, to get information. It is important as well, in my view, that we do support our print media.

I will be putting forward some questions to ascertain what the costs are currently in relation to providing these notifications, but rather than opposing every reference there is—and there are very many in relation to newspapers—I wanted to take this opportunity to state that Labor is against the principle of deleting the clauses that refer to the publication of notices in newspapers, and we will reflect that with amendments in the other place. For the ease of this committee process, I will not be opposing each of those individual amendments. We will stay silent on those as they go through and we will file amendments in the other place. I hope that assists the committee.

The CHAIR: Thank you, member for Badcoe. I do appreciate that. Attorney, I am going to speak for a moment to the member for Badcoe about the copy of the bill she is using. I think there is possibly some confusion.

Ms STINSON: The Clerk of the House has very helpfully furnished me with the document and some assistance.

The CHAIR: Excellent.

Ms STINSON: Considering this is the first bill of this nature that I have dealt with, I very much appreciate that.

The CHAIR: You are doing a fine job, member for Badcoe. You have what you need in front of you now.

Ms STINSON: I believe so, sir. I cannot guarantee I will not get lost again, but I will do my best.

The CHAIR: We will get through it together, I am sure.

The Hon. V.A. CHAPMAN: Before we pass clause 11, I will make a comment if I may, because the member has raised the question of public notice reform and the desire for the parliament to maintain the publication of print newspapers. This is not a new concept. I want to assure the house of two important things: one is that this reform was strongly sought by councils to deal with more minor matters in relation to notices. There is no suggestion that councils want to completely make no provision for print publication.

For major issues in relation to their annual plan, and other issues such as that, I expect they will continue to do so. In fact, part of this reform still maintains the capacity for publications to be made via regulation, so there is an understanding that that may occur. The reality is, though, that, whilst I appreciate the member for Badcoe is a former journalist herself and sees the plight of the decline of rural newspapers, I think everyone agrees in this house that it is sad. I wish people would read more. I still buy my local paper on Kangaroo Island, The Islander.

I am happy to buy a copy of it, read it, feel it and read all the notices and everything else that is in it, but I can go online if I want to check out what Stan Gorton is writing about over there. He writes about just about everything, as happens with local journalists who are in regional communities. They have to do tennis results, girls' netball results and football injuries across to motor vehicle accidents, etc. For every person who visits Kangaroo Island, or is in a regional area, the local paper often picks up the significance of that to their local community.

But the reality is that readers are making a choice about whether they go online to get that information, and a number of the paying parties—that is, the people who put advertisements in either the online or print services—are really directing this to occur, and so there are fewer and fewer people like me who buy the paper and read it and there are more and more people who go online to get their digestible information about their local area.

I cannot change that, but there is a process here for important matters to still be able to be published in print as such and there is also a capacity for councils to be able to not have to put everything out in print form to save trees, save money and have some 21st century management of this. That is the reason for it. I appreciate the member's commentary on her view and/or her party's view, but councils themselves have sought this and we respect that in this instance.

Clause passed.

Clauses 12 and 13 passed.

Clause 14.

Ms STINSON: My question is really one of clarification as to what the difference is between undertaking public consultation and doing it in accordance with the public consultation policy. Is that a more or less rigorous approach?

The Hon. V.A. CHAPMAN: I am advised it simply reflects a change to the more prescriptive method of a community engagement charter, so it is just the language that goes with that.

Clause passed.

Clause 15 passed.

Clause 16.

Ms STINSON: Clauses similar to this are peppered throughout the amendments, so I might just see if I can get an answer that might be applied to all those references. This section talks about entitlements to inspect and copy documents and removes that provision. My question is: why is it being removed and is that because the information is available online? There does not seem to be any insertion providing for the information to be provided online so I wondered if the Attorney could enlighten us as to whether, in lieu of inspecting or copying documents, there was some other arrangement now in place for the many references to this in the bill?

The Hon. V.A. CHAPMAN: Largely, this is to consolidate and modernise the layout. The issues in relation to publication and obligations to be making these available have really just transferred out of the various sections and are all in schedule 5. There is not a change of obligation. They are transferred to where they are related in the act.

Clause passed.

Clause 17.

The Hon. V.A. CHAPMAN: I move:

Amendment No 3 [DepPrem–1]—

Page 13, line 12 [clause 17, inserted section 50(3)(a)(i)]—Delete 'contemplated' and substitute 'required'

Amendment No 4 [DepPrem–1]—

Page 13, line 15 [clause 17, inserted section 50(3)(a)(ii)]—Delete 'contemplated' and substitute 'required'

The deletion of 'contemplated' and substitution with 'required' and the deletion of 'contemplated' and substitution with 'required' in each of these technical points is requested by the sector to clarify that councils must comply with the proposed community engagement charter when the act requires it.

Ms STINSON: I might just ask for clarification so I do not go through this incorrectly. I do not have any questions or issues whatsoever with amendment No. 3 of 67(2) that the Attorney just spoke to; however, I do have questions in regard to the amendment contained in the original bill.

The CHAIR: We will deal with amendments Nos. 3 and 4 standing in the name of the Deputy Premier.

Amendments carried.

Ms STINSON: Could the Attorney provide some information about the community engagement charter, in terms of how it will be delivered, when we are expected to see it, whether there is a draft available, or even if you can just give a bit of an overview or description as to what it will contain or what you envisage it will contain?

The Hon. V.A. CHAPMAN: The community engagement charter is certainly a modern phenomenon. We have charters for just about everything now in the 21st century, and there are prolific numbers of charters within government departments. In this case, it is to bring together what I think is a genuine commitment by councils to have a modern, flexible means by which they are committed to ensuring they undertake consultations.

Instead of having the old style of one size fits all, the charter is a medium by which this can be done to set out the expected levels of process to occur, depending on the nature of the initiative that is being considered, on which they are consulting with their rate base (generally, their community). It will not come into play until a notice is issued by me as the minister or anyone else who has this job.

It is yet to be developed. It is proposed that part 5 of the new act would not be proclaimed at this point until the work has been done for that to occur, but that is the process. It gets developed by councils through consultation with their own communities and then ultimately, I suppose, it comes to me for some sort of endorsement. Apparently, I do that by notice, and that is set out in the scheduling section 50(1) of new part 5.

Ms STINSON: So it is not by regulation?

The Hon. V.A. CHAPMAN: No, it is by notice. Notice is, in a way, similar to regulation. It is a bit like policy documents. I cannot say I am a great fan of all of these subsets of what is effectively the regulation power. They have the same effect as the regulation power and they are presented to parliament and so on, but they call them different names. That is why this is apparently the process that is adopted in relation to charters.

I am just trying to think of the last charter that came to my attention. I can remember going through and looking at the charter of Renewal SA, for example. There is a charter that is being developed under the PDI Act in relation to planning reforms which are being finalised. The Development Act will go and the whole of the PDI Act will be implemented. They have already done their charter so that is one that has codified, in a modern way, the process and recognition according to the complexity of the issue and the importance of the issue of the community as to how that engagement takes place.

It is not a new idea, but I think councils recognise the importance of community engagement. Sometimes it is brought to their attention because their community feels disengaged; nevertheless, they have acknowledged that it is an important aspect and we have set up the process for that to be accommodated.

Ms STINSON: Can the Attorney say what the complaints process will be for noncompliance with the charter and whether there will be any penalties for noncompliance with the charter? Also, could the Attorney speak about the threshold for consultation: how minor or major does a matter need to be in order for it to fall under the community engagement charter?

Obviously we do not want to consult on every little thing a council might do but, at the same time, the public does like to know what is happening and to be involved in significant decisions that might affect their lives. Could the Attorney elaborate on those points: the threshold and what the complaints process and penalties or consequences might be?

The Hon. V.A. CHAPMAN: This is not a punitive process and, to the best of my knowledge, charters are not punitive. Boards sometimes, where there is a charter—for example, the Renewal SA board act, developed under the previous government, had a charter—there is an obligation by the board to do certain things and to review it at certain periods of time. However, these are not designed to be punitive in the sense that they have a direct penalty. They are a bit like a guideline, but once they are signed up to them there is an obligation to actually follow through—but not through a punitive process.

The council's obligations here sit within its requirement, when it makes policies, that it is accordant with the charter. It is to set a framework from which the council then operates policies. If they fail to do this, in relation to the charter ultimately settled upon, then this will all be part of the process that could be under consideration under the review processes that exists and that will, of course, be maintained. That is, someone can register a concern with the Ombudsman in relation to, for example, publication of a policy which is not compliant with the charter.

Clause as amended passed.

Clause 18.

Ms STINSON: Can the Attorney say how many councils do not have a mayor; if not, what do they have? What feedback has been received about this amendment, and how many councils are likely to be affected by this change?

The Hon. V.A. CHAPMAN: There are 15 councils that currently have a mayor elected from within the council, and that will change to a direct elect. I think the other question was how many councils do not have a mayor at all; was that your question?

Ms STINSON: What do they have instead of a mayor?

Mr Knoll: Coober Pedy.

The Hon. V.A. CHAPMAN: They have an administrator and a CEO at the moment. Coober Pedy, for example, has a council currently with a CEO but they also have an administrator, Mr Jackson, who is there for another couple of years, I think. We have other types of models which relate to an area like, for example, Roxby Downs, a dedicated town established to support mining enterprises. Is that what you are getting to? Have I covered that?

Ms STINSON: Yes, that has answered my question, thank you.

The CHAIR: A question from me, Attorney: are there still councils that have chairmen or chairpersons, as such, as opposed to mayors?

The Hon. V.A. CHAPMAN: I am advised that there may be one or two. Councils can actually choose themselves to call their mayor a chairman or chairperson if they are elected from within the council. I cannot think of any immediately.

The CHAIR: The one that comes to mind for me is the District Council of Elliston, but I stand to be corrected.

The Hon. V.A. CHAPMAN: Yes.

The CHAIR: I think they still retain a chairperson.

The Hon. V.A. CHAPMAN: Is it a different person from the mayor? No, it is only the chairperson. There are a number of rural councils as you, Mr Chairman, would be aware, where they only might have five, six or seven representatives, so there is less formality at that level.

The CHAIR: That is one way of putting it.

Clause passed.

Clause 19 passed.

Clause 20.

Ms STINSON: My question is a simple one. It appears that $5,000 is being deleted as a penalty and replaced with $15,000. What is the reason for that?

The Hon. V.A. CHAPMAN: This is to be commensurate with the other penalties we have—the Public Sector (Honesty and Accountability) Act, for example.

Ms STINSON: To assist with dealing with similar amendments going forward, there are quite a few references to $5,000 going up to $15,000. Are they all for the same reason?

The Hon. V.A. CHAPMAN: That is my understanding, yes, but if there is something I come across during the course of the committee I am happy to try to point that out if I am advised that there is some distinguishing feature.

Ms STINSON: Thank you. I have one other question in relation to this and that is whether, in relation to this particular clause, criminal sanctions would apply if a person acted in a role they were disqualified from. Obviously, if it passes, this mandates that you could get a fine of up to $15,000, but would they not also be exposed to other sanctions under the criminal act, such as fraud for example?

The Hon. V.A. CHAPMAN: It depends entirely on who they are and what they are pretending to be. So, yes, there can be criminal sanctions, but I could not go through that without particularising in what instance. This is designed to be an internal sanction as such. If anyone breaks other laws in our criminal laws, for example, obviously that is a matter for police and/or DPP determination. Of course, in those circumstances, just to be clear, if a council were aware of circumstances where they think there might be some other breach of the law, then of course it is a matter for them to send them to the relevant authority.

Clause passed.

Clause 21.

The Hon. V.A. CHAPMAN: I move:

Amendment No 5 [DepPrem–1]—

Page 16, line 33 [clause 21, inserted section 55A(4)]—After 'office' insert:

, or reimbursement of expenses that the member would otherwise be entitled to under this Act,

As scheduled in 67(2), this amendment is to clarify that a council member cannot receive 'reimbursement of expenses that the member would otherwise be entitled to under the Act' by virtue of their office for a period of leave of absence to run for parliament. This parliament has considered this issue in a number of different ways over the years and we are presenting this, of course, to accommodate that.

Ms STINSON: I have a general question, which I could ask as part of 21, but maybe for ease I might just ask it now and we can put it all through. Under these provisions, can councillors still call themselves councillors or mayor while they are campaigning and running for a seat in state or federal parliament? Was there any feedback received from either stakeholders or, indeed, members of the public about that?

The Hon. V.A. CHAPMAN: I am advised—and I think this is an important precautionary aspect here—they are suspended from their office during this period. I think it would be unwise for them to attempt to describe themselves as a mayor and/or councillor, depending on what position they might have during that period of suspension, in the presentation of material because it may fall up against the electoral laws and the presentation. I am not here to give legal advice, but I would be very concerned about people doing that, and they may find themselves in breach if they were to do that.

I think it has been very clearly pointed out by some members in this house—and in other statements in the parliament; I think in the Legislative Council they have dealt with this before—that there is an understanding that there be a robust way of making sure that people do not exploit the office and/or entitlements of an elected member in local government while they are running for office in state or federal parliament. That sentiment is reflected in this.

Ms STINSON: I understand that is the Attorney's view, that it would be unwise for them to represent themselves as a councillor or a mayor while they are officially a candidate running for state or federal parliament, but is that what this amendment spells out? If so, how does it do that?

The Hon. V.A. CHAPMAN: It does not specifically provide that. What we are dealing with in amendment No. 5 is to insert, specifically in relation to expenses, 'reimbursement of expenses that the member would otherwise be entitled to under this Act'. I make the point that it is a suspension during that period, and that has been drafted as a way of ensuring that they do not get access to the entitlements. This was the public's criticism, and criticism by others, that they would be able to ask the ratepayers of their community to support them in some way while they were not undertaking council duties but actually promoting themselves for public office in another forum. That is the genesis of the concerns that were raised, and it is presented in these amendments.

Amendment carried.

The Hon. V.A. CHAPMAN: I move:

Amendment No 6 [DepPrem–1]—

Page 17, lines 4 to 8 [clause 21, inserted section 55A(5)(a)]—Delete paragraph (a) and substitute:

(a) use any facility, service or other form of support provided by the council to its members to assist the members in performing or discharging official functions and duties (not being a facility, service or form of support generally provided to members of the public by the council); or

This is a further amendment to clarify that, during a council member's leave of absence to run for state parliament, the member cannot use any facility, service or other form of support provided by council, including the use of vehicles to assist members in performing or discharging official functions or duties.

Amendment carried; clause as amended passed.

Clause 22.

The Hon. V.A. CHAPMAN: I move:

Amendment No 7 [DepPrem–1]—

Page 17, line 38 [clause 22(1), inserted subsection (1)]—Delete 'The' and substitute ' Subject to this Act, the'

Amendment No 8 [DepPrem–1]—

Page 18, line 8 [clause 22(1), inserted subsection (1)(f)]—Delete:

'if requested, to provide advice to' and substitute:

to liaise with

The first amendment is a technical amendment. The second amendment to the existing provision is to clarify that the role of the principal member is to liaise with the CEO to ensure the delivery and/or implementation of the council decisions.

Mr DULUK: Attorney, obviously the section relates to the mayor or the principal member. Are there any consequences for a mayor who does not perform any of the roles as set out in section 58?

The Hon. V.A. CHAPMAN: I will treat this as a question to clause 22 rather than to the two amendments, because I think what the member has identified here is that this is actually setting out the specific roles of a principal member, not their code of conduct or responsibility by way of obligation—there is a difference. This is a guide to anyone reading what is the role of a principal member as to what they are to do. One of them is proposed here to provide leadership and guidance to the council. That is not something that is an enforceable code of conduct. We go to other parts where they have direct responsibility to carry out certain functions, as distinct from what the role is. I am sure we will come to that further down the track; otherwise, I ask that the amendments be put.

Amendments carried; clause as amended passed.

Clause 23.

The Hon. V.A. CHAPMAN: I move:

Amendment No 9 [DepPrem–1]—

Page 18, lines 37 and 38 [clause 23(1), inserted paragraph (a)(ix)]—Delete:

'setting and assessing performance standards to be met' and substitute:

the oversight of the chief executive officer's performance

Amendment No 10 [DepPrem–1]—

Page 18, line 40 [clause 23(1), inserted paragraph (a)(x)]—Delete 'of the council'

Page 31, line 18 [clause 43(1), inserted subsection (2c)]—Delete 'a chief executive officer of'

The first amendment, at lines 37 and 38, is to clarify that all council members have responsibility to participate in the oversight of CEO performance under the council's contract with the CEO, rather than a direct role in setting and assessing performance, as not all members will be directly involved in this task. Amendment No. 10 is really a technical amendment to that.

Mr DULUK: Attorney, in relation to clause 23 in general, not your amendments, subclause (1)(a)(i) mentions the desire for a member to act with integrity. I note that there is not a definition of 'integrity' in the act. Is it intended that the definition used in other South Australian legislation, such as the ICAC Act, will apply, or does the common law definition of integrity apply in this situation?

The Hon. V.A. CHAPMAN: There is provision for integrity to be defined in this act, but it relates again specifically to where there is an obligation to do certain things. As a matter of general principle, the use of a word will have its common meaning, other than where it is specified, so there is no presumption that laws that we pass here in some way are defined by or restricted by the definitions that might be in other bodies that rely on a different statutory base. Perhaps we will come to that shortly in relation to the responsibilities and the review of people who do not act in accordance with those standards. So, Mr Chairman, I ask that amendments 9 and 10 be put.

Amendments carried; clause as amended passed.

Clauses 24 to 26 passed.

Clause 27.

The Hon. V.A. CHAPMAN: I move:

Amendment No 11 [DepPrem–1]—

Page 19, line 19 [clause 27(3), inserted subsection (4a)(a)]—After 'section 90' insert:

or 91(7)

Amendment No 12 [DepPrem–1]—

Page 19, line 27 [clause 27(4), inserted subsection (4c)]—After 'delegated to' insert:

or performed by

Amendment No 13 [DepPrem–1]—

Page 19, lines 28 to 33 [clause 27(4), inserted subsection (4d)]—Delete subsection (4d) and substitute:

(4d) Without limiting subsection (4c), a member of a council must—

(a) ensure that a request for information or a document from a person engaged in the administration of the council is made in accordance with the requirements of the chief executive officer of the council; and

(b) ensure that a request for the performance of work or the taking of action by an employee of the council is made in accordance with the requirements of the chief executive officer of the council.

I indicate that, firstly, in respect of amendment No. 11, this is really a technical amendment to clarify that members should treat both documents and discussion that relate to matters discussed in confidence at a council meeting confidentially. Amendment No. 12 is really a technical amendment to cover all powers and functions of a council employee, not just the delegated functions. Amendment No. 13 was requested by the LGA to rewrite this provision in the affirmative, similar to the current clauses in the code of conduct. This amendment also clarifies that members can only request work or information from council employees in accordance with directions set by the council's CEO.

Amendments carried; clause as amended passed.

Clauses 28 to 31 passed.

Clause 32.

Ms STINSON: It appears to me that the penalty amount of $10,000 has been removed and not replaced in this section. I just wonder if the Attorney can explain why that is. Secondly, part 2 seems to shift the onus so that a person has to prove that they did not know something, rather than an accuser having to prove that they did know. Is that consist with principles of justice towards a person who is accused of something, that they have to disprove the allegation against them?

The Hon. V.A. CHAPMAN: Firstly, in relation to the penalties on these integrity matters, it was the recommendation of ICAC, that is, Mr Bruce Lander QC, that if there are breaches these matters should be referred to and dealt with under the Criminal Law Consolidation Act. Obviously, if they are found guilty in respect of any offences in that regard, then of course the penalties would apply.

In relation to the defence (and I think this is what is being considered by the member), I propose to move an amendment. However, on the question of whether it is up to the person accused to prove something, that is, if they are going to rely on something, then it is quite common for them to have a defence, for example, 'I didn't know anything about it,' etc. Sometimes they are required to have an onus of an obligation.

In this instance, I just foreshadow that we will be removing that reference to the defence onus as such. At the moment the bill provides that it is a defence to a prosecution for an offence against subsection (1) to prove not a breach of subsection (1) if a member proves that the member did not know and could not reasonably have been expected to know the relevant change or variation.

Some of that is not necessary, including this question of the onus to prove the defence in those circumstances. I just foreshadow that we are going to be dealing with that. Yes, as a matter of principle, there are circumstances, and there are indeed some circumstances in the criminal law where someone has an onus of everything—for example, receiving stolen goods: you have to prove that you came by them lawfully, not the other way around. Yes, it does happen.

However, the general principle is that if someone is guilty of an offence under the Lander recommendations it goes to be dealt with through the Criminal Law Consolidation Act, and then it would be referred to the defence. I am also advised that it has been referred to as an integrity provision. We have changed it from an integrity position, which is a misconduct issue, to a criminal position. We have changed it to the other way around.

In any event, we do not need to have a great dissertation on what is normal practice in relation to criminal prosecutions, but these amendments come as a result of recommendations from Mr Lander.

Clause passed.

Clause 33.

The Hon. V.A. CHAPMAN: I move:

Amendment No 14 [DepPrem–1]—

Page 20, lines 32 and 33 [clause 33(2)]—Delete subclause (2) and substitute:

(2) Section 68(2)—delete 'under Division 1 of Part 2 of this Chapter' and substitute:

for the member

Amendment No 15 [DepPrem–1]—

Page 21, lines 5 to 8 [clause 33(3), inserted subsection (3a)]—Delete:

'and the chief executive officer is satisfied that the return complies with the requirements of this Subdivision (other than the requirement as to the period allowed for the submission of the return)'

Amendment No 16 [DepPrem–1]—

Page 21, lines 16 and 17 [clause 33(3), inserted subsection (3b)]—Delete:

'chief executive officer may' and substitute:

council must

Amendment No 17 [DepPrem–1]—

Page 21, after line 22—Insert:

(3d) Despite section 72, subsections (1a) and (3a) to (3c) do not apply to a member of a council subsidiary or regional subsidiary.

This clause deals with the Register of Interests, and there is some amendment to this. Amendment No. 14 is purely a technical amendment. Amendment No. 15 removes the requirement that the CEO be satisfied that returns submitted by members are accurate, given that CEOs do not have that role for returns submitted on time. Amendment No. 16 provides an amendment to remove the CEO responsibility and discretion to lodge an application with SACAT for disqualification of a member whose suspension has been continuous for longer than a prescribed period, and that is expected to be 12 months.

The amendments instead make it a requirement for the council to be required to lodge an application for an order of disqualification with SACAT where a suspension has continued for an extended period of time. Finally, amendment No. 17 is to clarify that the extension of the Register of Interests provisions do not include the extension of the suspension process to apply to a member of council, subsidiary or regional subsidiary. For members of subsidiaries, a failure to comply results in a vacancy in accordance with schedule 2 of the act. I move those amendments en bloc.

Ms STINSON: I have one question in relation to amendment No. 17. Why has the Attorney seen fit not to extend a councillor's disqualification (I believe we are in disqualification rather than suspension in this section) to members of the council subsidiary or regional subsidiary? I just want to clarify that I am understanding that type of situation correctly. Is it possible that a councillor could, for example, also serve on a council subsidiary or a regional subsidiary? If so, if they are disqualified off the council, why would they not be disqualified off the subsidiary as well?

The Hon. V.A. CHAPMAN: If you are a council member, the process applies. Not all members of the council subsidiaries or regional subsidiaries are councillors and so that is what this is designed to clarify, to ensure they are not accidentally removed as such by virtue of their not actually being elected councillors.

Ms STINSON: If you were a councillor and you were disqualified and you happened also to serve on a subsidiary, you would also be disqualified from serving on that subsidiary?

The Hon. V.A. CHAPMAN: That is my understanding, yes. In that very authoritative voice, yes.

Mr DULUK: Attorney, in relation to the obligation to publish information, why is there no early obligation to publish information when the member is first suspended in terms of their register, as I do understand that council must publish a notice when a member's suspension ends?

The Hon. V.A. CHAPMAN: We are just checking on whether there is an obligation for the CEO to actually publish the notice. That does not actually relate to the amendments, so I will ask the Chairman to put the amendments while somebody is checking that for us and then come back to you.

Amendments carried.

The Hon. V.A. CHAPMAN: For the member's benefit, on his question on clause 33, I am advised that there is no obligation to issue the notice, but there is an obligation to publish if somebody comes back onto council.

Mr DULUK: Thank you, Attorney, but why is there no obligation? I am just wondering why that is the position of the government.

The Hon. V.A. CHAPMAN: No particular reason. If councils want to they can, of course, advise that. What is important is that if they are coming back onto duty then obviously we think it is important that they have an obligation to tell their constituency and that is where the damage can be done, if I can put it that way, of somebody coming back on, acting in full restoration of their rights as a councillor, and nobody knows about it. I think the key for us is making sure that the community is aware of that.

Ms STINSON: I just wanted to note that I have received a fair bit of feedback from council CEOs, including some of those in my own electorate, in relation to what former Minister Knoll was proposing. Were it not for the amendments that the Attorney has now filed, Labor would have amended this section, so we certainly support this and it is consistent with the feedback I have received from CEOs. I just wanted to note that, sir.

The Hon. V.A. CHAPMAN: I thank the member for her indication. It just confirms why it is important to listen through these matters. There are matters that are brought to our attention later in the piece. I do not suggest that this is any reflection on the former minister, who I am sure assiduously dealt with this matter. Consistent with his practice, we of course continue to listen carefully and make sure that we accommodate circumstances, especially when there is a new regime of practice that is proposed to be introduced, and that everyone understands their position. Sometimes it is late in the day before they are alerted to some aspects of this.

We here in the parliament are used to a register of interests and having it dealt with in a certain way. Obviously, no-one would ever suggest that the Clerk, who receives our register of interests, has to go through them and think, 'Hang on a minute, Ms Chapman, why haven't you put this here?' They do not do that exercise. If there had been experience of that at the local council level then perhaps that would not have been as necessary. We just want to make it clear that CEOs do not have that responsibility; we have listened and have accommodated that.

Clause as amended passed.

Clause 34 passed.

Clause 35.

Ms STINSON: Again, this is a general question. There are references to information being published on websites throughout the bill and the amendments; I just wondered if the Attorney could clarify. Mostly, it is defined as a website of the CEO's choosing, but it does not actually confine it to a council-controlled website, for example.

The concern I have, particularly when you are talking about registers of interests and those sorts of things, is that they could be put somewhere obscure or, indeed, on the council's webpage but not very easily accessible. I do not know if you have had a look at some of the council websites. Some are excellent but some of them are an absolute minefield to navigate, even to find the simplest things such as council agendas.

I wondered if there had been any consideration of at least restricting this information to be published on a council website, or if there was any other instruction given to councils about how they should present this information in a way that the public can easily find it?

The Hon. V.A. CHAPMAN: I am advised, member for Badcoe, that this is the common phraseology used for the publication on websites and that the chief executive makes that determination. It has not been an issue that has been brought to my attention—that there might be some attempt to hide it away under the rubbish bin manual, or something like that, to make it difficult for people to access. I think this debate brings the issue to our attention.

As I said, there has been no issue raised with me to suggest that there is some kind of secrecy or an attempt to conceal this publication. This is the usual wording so I would not want to be prescriptive about how that occurs. I do not know; I suppose the member for Badcoe has seen plenty of websites over the time. I find it difficult to navigate all sorts of sites.

I remember going to a state instrumentality for which I am now responsible; it has been subsumed into a new tribunal in the time I have been in the parliament. I remember looking at their brand-new website and being horrified. It was designed to be easily accessible for people with mental health disorders, but it had an opening page with all sorts of things jumping out of the screen. It was confusing enough for me, let alone for someone with some disability or mental health concern who might want to access it.

I am not an expert on websites. If the member indicates if there are any circumstances where she feels there might be some attempt to do this, I would be more than happy to hear from her, or it could be reported to the LGA for them to follow it up with their member councils if she felt there was some kind of inappropriate attempt to conceal this information.

Mr DULUK: In regard to the publication of the register, what information will a council staff member or an elected member need to disclose about their staff or partner—specifically, personal information, income and investments, or residential addresses? I note that residential addresses are not included for normal elected members, but in terms of income and investments what personal information is required?

The Hon. V.A. CHAPMAN: I am advised that this section relates only to the publication of the register, all the details of which are in a separate section. However, as you will see here there is a 'must ensure that certain issues not be published', namely, the residential address. That is just in relation to the register itself; the details will come a bit later.

Clause passed.

Clause 36 passed.

Clause 37.

Mr DULUK: Regarding the register of gifts and benefits, will an elected member need to disclose gifts from family members—for example, Christmas gifts or birthday presents?

The Hon. V.A. CHAPMAN: No. I suppose there may be some exception to that, if a member of their family were involved in an organisation or had another role in a certain entity and they would normally be captured by that gift, then yes. Sometimes companies or organisations give gifts, and if your husband or wife is the CEO of that organisation then I think it would be very prudent to disclose it. However, ordinarily for gifts under the Christmas tree and family gifts, no.

Ms STINSON: Attorney, if, for example, a member of a council had a son who was a member of parliament, would they need to disclose their Christmas and birthday gifts?

The Hon. V.A. CHAPMAN: If it relates only to the member's actual duty. If, for example, member for Badcoe, you had a sister and she was a member of a company who wanted to make provision of a gift from that company to you for your services to the community, and she comes along with the annual Christmas gift, then it needs to go on your register. If she gives you a gift as a person herself because she is your sister and she loves you, then no.

Clause passed.

Clause 38.

The Hon. V.A. CHAPMAN: I move:

Amendment No 18 [DepPrem–1]—

Page 23, line 22 [clause 38, inserted section 74(1)]—Delete 'would' and substitute 'might'

Amendment No 19 [DepPrem–1]—

Page 23, line 22 [clause 38, inserted section 74(1)]—Delete 'could' and substitute 'might'

Amendment No 20 [DepPrem–1]—

Page 24, lines 19 to 22 [clause 38, inserted section 75(k)]—Delete 'gift of a kind required to be disclosed in a return under Part 14 of the Local Government (Elections) Act 1999 relating to the last election at which the member was elected' and substitute 'designated gift'

Amendment No 21 [DepPrem–1]—

Page 24, after line 23 [clause 38, inserted section 75]—Insert:

(2) In this section—

designated gift means—

(a) a gift of a kind required to be disclosed in a large gifts return under Part 14 of the Local Government (Elections) Act 1999 relating to the last election at which the member was elected; or

(b) a gift or benefit of an amount greater than the prescribed amount under section 81A(1)(b) of the Local Government (Elections) Act 1999 received by the member after the last election at which the member was elected (whether or not the gift or benefit is required to be disclosed in a return under Part 14 of the Local Government (Elections) Act 1999).

Amendment No 22 [DepPrem–1]—

Page 24, line 29 [clause 38, inserted section 75A(1)(a)]—After 'does not' insert:

materially

Amendment No 23 [DepPrem–1]—

Page 26, line 3 [clause 38, inserted section 75B(1)(c)(i)]—Delete 'abstain from voting' and substitute 'vote'

This whole clause relates to the conflict of interest matters. I start with amendment No. 18, which simply substitutes the word 'would' for 'might' and, similarly, amendment No. 19, which substitutes 'could' for 'might'. These were requested by the former Independent Commissioner Against Corruption. The definition of 'general conflict of interest' is proposed to be amended, and it is expected to be an easier standard for council members to apply them forming a view that an impartial, fair-minded person would have a view that they have a conflict of interest in the matter.

Amendment No. 20 substitutes 'designated gift' after the deletion of some wording, and the definition of a designated gift is contained in amendment No. 21. The bill proposes that the council members would have a material conflict of interest where a person had given the member a gift that was required to be disclosed under the Local Government (Elections) Act 1999. Presently, this is a gift of a value of $500.

These amendments change this to a 'designated gift', that is, a large gift under the Local Government (Elections) Act, required to be disclosed relating to the last election in which the member was elected. The value will be prescribed but is expected to be in the order of $2,500—all gifts, whether campaign donations required to be disclosed or gifts/benefits received by the member, during the term that are the same dollar value as large gifts.

Amendment No. 21 is a minor amendment to provide the additional clarification in that clause, and amendment No. 23 is a technical amendment to follow all in relation to clause 38. I move that they be accepted en bloc.

Mr DULUK: Attorney, I have three questions in regard to this section. If an elected member has declared a conflict of interest on a matter in the past, are they still entitled to receive council meeting papers relating to that matter?

The Hon. V.A. CHAPMAN: On a material conflict of interest, yes, they are. You get notice for the next meeting if it is coming up and, obviously, there is a process to go through if that is maintained.

Mr DULUK: If a member of the public provides low-value or routine services to an elected member, such as dry-cleaning, plumbing, those of a house nature, will the elected member have a material conflict of interest when dealing with matters relating to that service provider? Does this provision still apply to the commercial relationship between the elected member and the service provider once that has ended?

The Hon. V.A. CHAPMAN: Proposed new section 75(j) reads:

(j) a person with whom the member has entered into, is seeking to enter into, or is otherwise involved in a negotiation or tendering process in connection with entering into, an agreement for the provision of professional or other services for which the member would be entitled to receive a fee, commission or other reward;

If you were a member of council, member for Waite, and you used Jim's Mowing service (which I have to say is an excellent service; I use it myself) and you found that your local council was going to be asked to consider a contract to employ that company to mow lawns or whatever, then you would need to disclose that—the same as if they were to use your drycleaner.

Mr DULUK: I use Pete's service for my gardening. In regard to new section 75A(1)(a), exemptions to a conflict of interest, in what circumstances would these exemptions apply? For example, if a candidate runs for election on a local issue that affects the elected member's household, will they be precluded from debating or voting on this issue? Examples include an issue at their local park, state or local roads, or householders in a neighbourhood having to pay additional costs for a community wastewater service.

The Hon. V.A. CHAPMAN: Essentially, the definition relating to this is in paragraph (a):

(a) if the interest is held in common with a substantial proportion of the ratepayers, electors…

That is an assessment that has to be made. Obviously, in addition to that, it is not to materially exceed the interest held by the other ratepayers, electors or residents. That is an assessment that has to be made to determine whether there would be a problem or not.

Amendments carried.

Ms STINSON: Clause 38 is quite a large clause. Can the Attorney describe how these sections would apply if the council has nominated an elected member to the board of another legal entity?

The Hon. V.A. CHAPMAN: In short, they would apply. I am trying to think of an example to make it clearer. Say you were on the Burnside council and you were appointed to represent the council on the Burnside War Memorial board. If there were any potential conflict of interest in relation to that responsibility, it would be disclosable under the same rules.

Ms STINSON: Can the Attorney detail what the mechanisms are for abstaining under these sections?

The Hon. V.A. CHAPMAN: You leave the room. The other information I have, which I do not think is directly related to your question, is in relation to a material conflict of interest. There are other circumstances where you may need to make a statement to council to indicate the issue that has been identified and the way you propose to deal with it—i.e., 'I just want to let council know I've had some contact with this person or I have this interest. I'm satisfied there's no conflict of interest.' It is presumably a matter that the council would then consider.

Ms STINSON: How is the substantial proportion test applied? Who would determine if it should be invoked? Would it be the member themselves, or would it be a matter that the council would have some say on—for example, the elected body would have to vote or determine if a substantial proportion test were to be applied? Is a councillor still required to declare an interest, even if they believe that the test may not apply to them?

The Hon. V.A. CHAPMAN: This responsibility is entirely with the member. He or she must make an assessment about what the nature of the conflict is, how it affects them and whether in fact they should abstain, declare or do whatever process is to be accommodated. It is not a matter that, for example, is taken into the hands of the rest of the council to say, 'You've indicated to us, councillor X, that you are mindful of the fact that you have an interest or association with this particular person, but you've indicated to us that you don't consider it as any conflict of interest. We are going to vote you out anyway.' That is not what this is all about. This is to identify for the member that it is their responsibility that there are certain actions to be taken, depending on what the nature of the conflict is. It is their responsibility.

Clause as amended passed.

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:00.

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