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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-08 Daily Xml
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Statutes Amendment (Local Government Review) Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

Amendments Nos 1 to 14:

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

That the Legislative Council's amendments Nos 1 to 14 be agreed to.

Motion carried.

Amendments Nos 15 and 16:

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

That the Legislative Council amendments Nos 15 and 16 be disagreed to and that the House of Assembly makes the following amendments in lieu thereof:

Clause 129, page 69, after line 10 [clause 129, inserted section 262F(5)]—After paragraph (c) insert:

(ca) industrial relations;

Clause 129, page 69, after line 12 [clause 129, inserted section 262F]—After subsection (5) insert:

(6) In addition, before nominating a person for appointment as a member of the Panel, the Minister (in the case of the presiding member or the member nominated by the Minister) or the LGA (in the case of the member nominated by the LGA) must ensure that a registered industrial association that represents the interests of employees of councils specified by the Minister by notice in the Gazette is consulted on the proposed nomination.

Clause 129, page 73, after line 41 [clause 129, inserted section 262S]—After subsection (1) insert:

(1a) If the person primarily affected by the behaviour the subject of a complaint is an employee of a council, the Panel must, before refusing to deal with, or determining to take no further action on, the complaint, consider any submissions received from a registered industrial association representing the employee.

Clause 129, page 74, after line 14 [clause 129, inserted section 262T]—After subsection (2) insert:

(3) In addition, the Panel must ensure that, during an inquiry relating to a complaint where the person primarily affected by the behaviour the subject of the complaint is an employee of a council, any registered industrial association representing the employee in the matter is given a reasonable opportunity to make submissions relating to the inquiry.

Clause 129, page 76, after line 5 [clause 129, inserted section 262W]—After subsection (1) insert:

(1a) If the person primarily affected by the behaviour the subject of a complaint referred to the Panel under this Subdivision is an employee of a council, the Panel must, before determining whether or not to take action under this section, ensure that any registered industrial association representing the employee is given a reasonable opportunity to make submissions on the matter.

Clause 129, page 76, after line 40 [clause 129, inserted section 262X]—After subsection (2) insert:

(2a) If a report under subsection (1) relates to a complaint where the person primarily affected by the behaviour the subject of the complaint is an employee of a council, the Panel must provide the report to any registered industrial association representing the employee.

(2b) The Panel may, in providing a report to a registered industrial association under subsection (2a), require the registered industrial association to ensure that the whole or a specified part of the report is not disclosed to any other person or otherwise published.

(2c) A registered industrial association that contravenes or fails to comply with a requirement under subsection (2b) is guilty of an offence.

Maximum penalty: $10,000.

Both of these amendments relate to the proposal to include an additional member on the Behavioural Standards Panel, which is proposed to be a member nominated by a registered industrial association—otherwise colloquially known as a union—that represents the interests of employees of councils specified by the minister by notice in the Gazette. In particular, amendment No. 15 requires the appointment of this member, and amendment No. 16, which is consequential to it, relates to the potential removal of the member.

I confirm that the government simply does not agree with this amendment for several reasons. The first is that we expect that the majority of matters before the panel will relate to serious or repeated misbehaviour by members where the affected person is another member, that is, elected members. It is not appropriate that a representative of a registered industrial association participate in the consideration of these matters and the potential application of a sanction.

The second reason is that it is essential that the panel act as an independent body—I repeat that, an independent body—whose inquiries and findings about elected member behaviour are and are seen to be impartial. No person is represented on the panel, as outlined in the bill, members or employees. The bill makes it crystal clear that current council members and employees cannot be panel members to ensure that there is distance between the panel and the local government sector.

If a matter comes before the panel, where the person affected by a member's behaviour is an employee, it is critical that any finding and sanction made by the panel as the implement of discipline here are accepted by all the participants. If this finding is made by a body on which the employee is directly represented, as these amendments propose, and the member is not, there is a clear risk that the finding could at least be perceived by the member as unfair and potentially an increased risk of that member taking action to formally challenge the decision.

Perhaps, ironically, this could make the panel less effective at taking action that may be needed to protect council employees. This would be disappointing, given the significant lengths the government has taken in this bill to provide better support and protection to council employees who may from time to time be the subject of inappropriate or unsafe behaviour from the elected members.

However, because the government recognises that matters involving employees may still come before the panel, the government is proposing to amend the bill to formalise the engagement of registered industrial associations—i.e., unions—where an affected person is an employee. This motion, therefore, puts forward a good compromise position on the amendments made in the other place.

They propose that registered industrial associations—i.e., unions—are formally involved throughout the panel's process, namely, ensuring that the membership of the panel as a whole includes qualifications, knowledge, expertise and experience in industrial relations amongst its skills, consultation with the registered industrial association on the appointment of members and ensuring that the panel considers submissions from an industrial association at each stage of its consideration of a complaint and inquiry where an affected person is an employee.

This includes a submission if a complaint does not proceed to an inquiry on the appropriate action to take and the provision of a report on the matter to the association. In short, this would enable the behaviour panel to comprise independent persons but, in the event an employee is caught up in the tangle of this misconduct on behalf of elected members, they—as long as they agree to this of course—have the right to have their representation and to put a submission to the panel. They are not on the panel, but they have a right to be represented to put that submission.

We do not ignore the fact, and I can say to this house quite openly that I have known of councils where there has been a dispute, sometimes longstanding between elected members, and that behaviour has an adverse effect on members of staff in the council. It is unfortunate when that happens, but it can happen, we recognise it can happen and I have seen it happen. I think in addition to all the protections we give employees in that situation, including the CEO of a council, we need to make sure that if we are going to have this behaviour panel process, which has been worked up and developed by councils through their representative—namely, the LGA—then we need to recognise that that is what its job is, but in the event that there is an adverse impact on an employee or employees, they will have this other option available to them.

I want to note also that the new council member conduct management framework that is included is as a result of extensive engagement across the local government sector, including with employees who have been the subject of poor member behaviour.

I have to say that in relation to the Behavioural Standards Panel proposal, this is something that has been picked up by the government and presented in this bill as an initiative that has been worked through with local government and local governments, particularly those that have been frustrated or had their business interrupted by the bad behaviour of elected members, looking for some way to manage this.\

I give credit to the LGA and to councils that have really struggled with this issue for coming up with this initiative, and the government is happy to present it in the form of this bill. The panel has been carefully designed to ensure that it can deal with these more serious behavioural matters thoroughly and efficiently, so that they can be resolved well and quickly for the benefit of all involved, and hopefully have a very significant reduction in the legal costs surrounding representation through proceedings such as via the Ombudsman.

That is no reflection on the Ombudsman's office. He and his team have an important job to do, but quite often members will know that they have read reports from the Ombudsman's office where there has been a complaint by an elected member against another elected member for just simply not giving enough time or notice or copies in triplicate or a relatively minor breach and the whole inquiry with the Ombudsman's office is taken up with it.

Sometimes, if you look at the history in some of those councils, they may be repeat or serial complainants about that. They may be justified, but they sometimes are not. The Ombudsman, which is a very expensive process, is taken up. The councils I have spoken to, and certainly the LGA, have been really desperate to have an alternate way of managing this. The importance of having this Behavioural Standards Panel is to make sure of that impartiality, and that is what has worked. I recall the Hon. Graham Gunn, who is formerly of this place—I think he had nearly 39 or 40 years here.

The Hon. D.C. van Holst Pellekaan: Yes, six weeks short of 40 years.

The Hon. V.A. CHAPMAN: Yes, six weeks short of 40 years. He told me that in his retirement he actually assists some councils in the Mid North in relation to behavioural management of its elected members. I am not sure that it is similar to what is being proposed here. but at least he is involved in a panel. They bring them together when there has been an early identification of misconduct, or bad behaviour is how I would describe it as. The former ICAC Commissioner Bruce Lander QC would often say there is a big difference between misconduct and maladministration on the one hand and simply bad behaviour. It could be rude, aggressive, disruptive or impolite behaviour toward another elected member, for example, and it completely undermines the capacity of the council to get on with its business.

We as local members, in this house particularly I suggest, would see this as a clear and present problem in councils. I look at the member for Light, who is a former mayor. A number of our members here in this house have had to deal with these issues. I think the LGA in consultation with its membership and councils has come up with an important independent process and the government has been prepared to present it.

Although I have not had the carriage of this bill through its life (my predecessor the member for Schubert introduced this bill), I can categorically say that nobody—nobody—in the consultations I have had with any council has come to me to say, 'That's not a bad bill, minister, but I think you need to sort it out and have a union rep on the Behavioural Standards Panel.' It was not until we came into this parliament, when the opposition in the other place deemed this was something necessary.

I understand that the Australian Labor Party do have a commitment to unions. They have membership and they have delegate entitlements and all those things. I do not make criticism of that today; I understand that. It is not uncommon, when we have dealt with representative bodies in this parliament, especially in industry, that there has been a push for the Australian Labor Party to have a union representative or more on those representative bodies. I do not actually have an issue with that, as I think that is part of the industrial representation that occurs. However, we are talking about a body here that is to be entirely independent—not a barracker and not a stakeholder, but an independent panel of three to have this role.

I did say this during the course of the debate, but it is the intention that this will be a three-member panel populated by a nominee from the LGA, a nominee from me as minister, or whoever is minister, and a third party as an agreed party between the two. I suggest to the committee that this is an important initiative, it is a good initiative and I hope it will be an effective and cost-efficient mechanism.

By introducing a stakeholder in this way I suggest will risk the proper operation of this key tool to address the distress and damage to reputation of councils that are being allowed to continue in the absence of being able to promptly deal with these matters. I do so on the basis that Mr Graham Gunn tells me a process like that can work and he is on it. That does not really surprise me, as he is a pretty persuasive person. He said to me that the key thing with these is not only being able to have a level of independence but also being able to bring the warring parties together as quickly as possible, and he has found that has been a very successful model. I commend the LGA for bringing this. Let's not frustrate or fracture what has been a model that has been fully litigated, worked up and seems to work.

In addition, I have had representation put to me by the President of the LGA, Angela Evans, who is also known to many as the Charles Sturt council mayor, and I have had conversations with her about this. As the president, she has also written to each of the councils of her desire to maintain the original structure and to decline the Legislative Council's recommendation of adding on a union representative. I have moved that we disagree with amendments Nos 15 and 16 and that in lieu thereof clauses be inserted as per the schedule, but I do not have a number on it.

Mr BOYER: Can I make some remarks?

The CHAIR: Yes, absolutely—before I put the question, the member for Wright.

Mr BOYER: Thank you, Chair, and thank you, Attorney, for your comments on these proposed amendments. I will say from the outset that the opposition does not intend to support the government's amendments here, and there are a few brief remarks I would like to make on amendments Nos 15 and 16. They relate to the inclusion on the Behavioural Standards Panel of a registered industrial association, which was the topic of much of the Attorney's address a few moments ago.

The Behavioural Standards Panel is an important inclusion in the bill, but the composition of the panel did not reflect the varying types of issues that that panel will address. Poor behaviour of councillors does not just affect other councillors; it can affect staff and the wider community. Staff need to be protected at their workplace from unruly and disruptive councillors. The inclusion of an employee representative on the panel will go a long way to address this, and I offer my thanks to the crossbench in the other place for their support of this very important initiative.

The section of the bill was debated at length in the other place (and I have read those comments) not to express disapproval but to successfully expand the diversity of the panel to include an employee voice. Under the government's proposed bill, the behavioural panel consisted of three members appointed by the Local Government Association and the minister, but there was an important voice missing from this panel—the voice of the people who are often impacted by that poor behaviour we have discussed: council employees.

By including an employee representative on the Behavioural Standards Panel, the Legislative Council has ensured a councillor's misbehaviours will be assessed not merely by a panellist appointed by employers or employer advocacy groups but by a registered industrial association. The Attorney gave her own characterisation of the kind of behaviour the panel might seek to deal with. I note that in the Attorney's assessment she believed it would be largely around poor behaviour between councillors.

It is important to add to this debate that there are a few—let me be polite and say 'topical' cases at the moment in the metropolitan area from some councils around the alleged behaviour of councillors. In a number of those cases, the allegations were made by employees against an elected member. I think we should be careful in characterising what this behaviour panel will assess as being largely issues that will come up between two elected members of council. Judging by some of those very public issues in councils in the metropolitan area in the last number of years, there is a very good chance that the behaviour this panel will come to assess will also include allegations made by employees of poor behaviour of councillors towards elected members.

While only a councillor can appear before the behavioural panel, an employee can of course refer a councillor to that panel. As the minister herself stated in correspondence that I believe was sent to mayors on 26 May:

Our objective has always been that matters relating to repeated or serious misbehaviour by an elected member, or where an elected member has failed to comply with a council's processes or resolved actions, can be referred to the panel and resolved quickly for the benefit of all involved.

I think that last bit is key: 'for the benefit of all involved'. New section 75G(1) of the Statutes Amendment (Local Government Review) Bill specifically mentions that a member's behaviour should not adversely affect the health and safety of other members of the council or employees of the council. The government's amendment to this section means that, in cases where the council's employees' health and safety are adversely affected by a member's behaviours, a complaint relating to that matter should be referred to the Behavioural Standards Panel.

If an employee has been given the right to refer an elected council member to the panel, why is the government stopping the inclusion of a voice that is qualified to understand the experience, the trauma and the distress of council employees? If you look at the listed requirements set out in the government's bill, under new section 262F(5):

…when nominating persons for appointment as members of the Panel…members of the Panel must collectively have qualifications, knowledge, expertise and experience in the following areas:

(a) local government or public administration;

(b) law;

(c) administrative or disciplinary investigation;

(d) dispute resolution, conflict management, human resource management or organisational psychology.

A member of a registered industrial association's daily job is basically dispute resolution. It is understanding law, it is understanding disciplinary investigation, it is understanding conflict management and human resources. The experiences of an employee representative meet all these categories, I would put it, and more. There is no reason why a registered industrial association should not be included on the panel. Perhaps the important question to be asking here is: why is the government so averse to having a voice of the employee represented on the panel?

I note some of the concerns raised by other members, that having an employee voice on the panel would mean that there is an even number of panellists, which would make decision-making, in their assertion, difficult. These concerns are already addressed in the bill. New section 262R(3) would ensure that the presiding member of the panel would have a deciding vote in that situation, a process that has served bodies, most notably like the Legislative Council itself, very well for decades, perhaps with the exclusion of choosing the new President.

Members have also raised questions about who can or cannot sit on the panel. New section 262F(4) outlines that a member or employee of a council cannot be appointed as a member of the panel. This is as it should be, as it would raise conflict of interest issues, and we accept that. However, employee representatives do not have the same conflict, as they do not have a personal stake in these behavioural matters. Employee representatives are not a part of the council and operate separately to them.

I have a few more specific remarks, if I could, about the amendments that we are discussing. I note that these amendments before us right now were only filed late last night after what I am told were repeated attempts to see a copy of them. We will, as I said at the outset, be opposing these amendments because we feel the inclusion of an employee voice on the panel is essential.

Looking at these amendments, what we see really is a kind of half-hearted attempt by the government to provide an acceptable compromise. I note the Attorney's comments in her address, that they would appear to be now desperate to have this behavioural panel set up and operational, but I understand that this has been languishing on the Notice Paper in the other place for something like six months, so I am not entirely sure why the sudden urgency. I think it is fair to say that it has not sat on the Notice Paper of the Legislative Council through the actions of the party of which I am a member, but I believe it is the government in that place that chose not to progress it. I think that is an important point to consider.

The amendments require that the panel must require submissions received from a registered industrial association before determining whether to take action on a complaint. I think this was a point that the Attorney covered pretty forensically in her comments by way of trying to suggest that this amendment might be a compromise in terms of providing a place for a registered employee association to have some kind of input into whatever process the behavioural panel commences.

My understanding of both the federal Fair Work Act and the Return to Work Act at state level is that there is already provision in them under freedom of representation and association for organisations like registered employee associations or a union, whatever you would like to call them, to have input into that process.

The Hon. V.A. Chapman interjecting:

Mr BOYER: Indeed, but there is absolutely no need for it to be in there because it is already stipulated in both state and federal pieces of legislation. So I think it is a somewhat disingenuous attempt at a compromise when in actual fact what is really needed is a place on the panel for that registered association. I see no good reason why that in any way would frustrate the process of the behavioural panel.

When I was reading before the skill set that was required to make up that panel, I think it is stated that, in the case of the LGA and other associations, they are to nominate a person. It does not stipulate that it has to be someone from that association, so too was our suggestion I believe that if we were to have a representative from the employee association on the behavioural panel it would be a nominee of that association or organisation. It would not necessarily need to be a member of that association or union. I think that is also an important point to consider here.

Before I finish, the other issue which was raised which I want to very briefly touch on is that of impartiality and the government assertion that by including an employee voice in some way or other on that panel will somehow mean that it will in some way lose its impartiality. Firstly, I think this argument presumes that the existing members of the panel would be impartial in the first case.

We would all like to believe that is the case, but there are essentially no checks and balances on those existing organisations to be impartial in any way nor would there be a check or balance on an employee association to behave in the same way if they were to be included. I do not think it is fair to single out the registered employee associations as being a potential threat to impartiality of the Behavioural Standards Panel when they would essentially be treated the same as the other members of that panel.

Secondly, this flawed argument neglects to consider that employee representatives are the most qualified of all potential panellists according to the requirements that I read out before in terms of expertise. I know the Attorney may well be surprised by that but, if we read out those dot points again of the skill set that the minister would be looking for to include on the panel and we look at the daily work of a union or an employee of a registered organisation, it really is their bread and butter in terms of dispute resolution and negotiating situations like that which no doubt would serve them very well to sit on the behaviour panel themselves. In short, including an employee representative on the panel we believe firmly will ensure and not diminish the prospect of an impartial and qualified panel.

The Hon. A. PICCOLO: I rise to make a few points in support of my colleague the member for Wright and also to speak against the minister's proposed amendment to what the upper house has agreed to.

Having heard what the minister has said in support of her amendment, I think it misses a very important point. One of the most important points here is that part of the role of this new behaviour panel is designed to change or alter the culture of organisations down the track. Through this panel, you will hopefully change the way councils operate and over time change that culture that exists at the moment. So it is important that important stakeholders in local government are employees. Employees are important stakeholders in local government.

I am at a loss to understand why a panel comprising a nominee agreed upon by the LGA and the minister, and a nominee of the minister, is more impartial than a panel where you actually add—and I use the words in the bill—'a member nominated by a registered industrial association that represents the interests of employees'.

One would think that, by adding this, it makes it a much more balanced panel. You would actually have all the interests of local government represented. The minister on behalf of the state and, if you like, the community, the LGA on behalf of local government and the addition of an industrial organisation nominee would actually make a much more balanced panel. I do not accept, as the minister has tried to imply, and as the member for Wright has quite rightly said, that a nominee from an industrial organisation would make this panel any less impartial or independent.

In fact, this sort of model was used in a whole range of government organisations involving the public sector. I used to sit as a panel member on various grievances and panels in the commonwealth government when I was a commonwealth public servant and a member of my industrial organisation. We sat on a number of grievances and a whole range of appeal processes and that was upheld as a very fair system.

In fact, it acknowledged that employees are an important part of organisations. All this amendment does is acknowledge that when it comes to councils, important stakeholders—a third of the stakeholders—are council employees. You have council members, you have employees and then you have the community as well. The amendment moved in the upper house by my party room representative, the shadow minister there, I think strengthens this bill, strengthens this proposal clause, actually strengthens the whole proposal and is one that would be accepted by all in the sector.

I think when you hear some other members on the government side talk about these things in the past, the only conclusion is that they do not like unions; they do not want unions involved in any way. Certainly, another member of the front bench has, on an ongoing basis, reflected those views in this chamber and I would hope that the Minister for Local Government is not going to take on those sorts of views in her portfolio.

Motion carried.

Amendments Nos 17 to 26:

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

That the Legislative Council's amendments Nos 17 to 26 be agreed to.

Motion carried.

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