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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-18 Daily Xml
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CHARLES STURT COUNCIL

The Hon. DAVID WINDERLICH (17:11): I move:

1. That this council:

(a) Notes general community concern about the influence of the Australian Labor Party on the elected members of the City of Charles Sturt, including:

i. the fact that 12 of the 17 councillors are members of the Australian Labor Party;

ii. the fact that 3 councillors are employed by Labor members of parliament; and

iii. the influence of the member for Croydon on elected members of council.

(b) Notes specific concerns about the potential for conflict of interest in the revocation of the community status of land at St Clair arising from:

i. the fact that the revocation of land is essential to the policy objectives of the state Labor government;

ii. the fact that the decision making process followed by the council will be assessed by a Labor minister; and

iii. the lack of any strategy adopted by the City of Charles Sturt to manage potential conflicts of interest arising from the role played by ALP members in that council.

2. The Legislative Council therefore refers the following matters to the Ombudsman, pursuant to section 14 of the Ombudsman’s Act 1972, for investigation and report:

(a) The potential for actual conflict of interest of elected members of the City of Charles Sturt in relation to revoking the community status of land at St Clair as per section 73 of the Local Government Act;

(b) The extent to which the City of Charles Sturt met its obligations under section 48 of the Local Government Act to manage the risk of conflict of interest associated with the revocation of the community status of land at St Clair; and

(c) Any other relevant matter.

This motion arises from the debate at St Clair and concerns over the influence of the Australian Labor Party on the outcome of the community land revocation process in St Clair. The first point of the motion is that 12 of the 17 councillors of Charles Sturt are members of the Australian Labor Party. This is not a problem in itself, as was pointed out by minister Holloway earlier; it is Labor heartland. However, it is the fact that this aligns, like the coming of Aquarius, with a whole lot of other factors that suggest Labor domination of this council, and this in itself would not matter if councillors did not have a conflict of interest in particular decisions or if they did not stand to gain or lose a job or a position in the party or a preselection as a result of the outcome of their decisions.

This hinges on the definition of conflict of interest in the Local Government Act. Section 73 of that act provides:

(1) A member of a council has an interest in a matter before the council if—

(a) the member or a person with whom the member is closely associated would, if the matter were decided in a particular manner, receive or have a reasonable expectation of receiving a direct or indirect pecuniary benefit or suffer or have a reasonable expectation of suffering a direct or indirect pecuniary detriment…

Section 73(1)(6) defines non-pecuniary benefits in the same way. The clause further provides:

(2) A person is closely associated with a member of a council…

(e) if that person is the employer or an employee of the member; or

(f) if that person is a person from whom the member has received or might reasonably be expected to receive a fee, commission or other reward for providing professional or other services; or

(g) if that person is a relative of the member.

Do we have evidence that such rewards are potentially available to Labor Party members of the City of Charles Sturt? Indeed, we do. The first of these is that three councillors are on the staff of Labor members of parliament. Two, Edgar Agius and Raffaele Angelino, work in the office of the member for Enfield, John Rau MP. One member, councillor Paul Sykes, is an adviser to the Minister for Veterans Affairs, Michael Atkinson and, although I am sure he does important work, the fact that we do not have a standing army in South Australia probably indicates that he has a reasonable amount of flexibility in his duties as well.

Councillor Paul Sykes is said by several Labor Party members I have spoken to and by community members to have been anointed as the next mayor of the City of Charles Sturt and then as the next member for Lee when Michael Wright retires. I have been informed that one other councillor is a former staffer of the member for Croydon, but that is yet to be confirmed.

It is important to note that staff of Labor members of parliament have been banned from holding positions on council by the Victorian Labor government, so this is not a trivial matter. This was one of the outcomes of the sacking of the Brimbank council by the Brumby government after an investigation by the Victorian Ombudsman. I am not saying at this stage that any of these individuals or members of parliament have acted improperly, but it is clear that there are rewards and benefits and losses—

The Hon. B.V. Finnigan interjecting:

The Hon. DAVID WINDERLICH: Well, I have to say that he is listed as the adviser to the Minister for Veterans' Affairs. So, there is clear conflict of interest, or potential for conflict of interest, I should say.

The second issue of concern to the community in a general sense is the influence of the member for Croydon, Michael Atkinson, on the Charles Sturt council. Again, I have been told by several members of the Australian Labor Party that the member for Croydon controls Charles Sturt—those are their words. I have been told by members of the Labor Party that ALP members of the council caucus on the council agenda prior to council meetings.

The Hon. B.V. Finnigan: Even if that's true, so what?

The Hon. DAVID WINDERLICH: I will come to that in just a minute. I have been told that ALP members have caucused in the office of the member for Croydon and continue to caucus at other locations.

The Hon. B.V. Finnigan interjecting:

The Hon. DAVID WINDERLICH: I will answer the Hon. Mr Finnigan's question.

The PRESIDENT: The Hon. Mr Winderlich will be better off not responding to, or taking any notice of, interjections that are out of order.

The Hon. DAVID WINDERLICH: Certainly. I will not pay any attention to the Hon. Mr Finnigan's question. I will continue to develop my case. Section 90(8) of the Local Government Act provides:

The duty to hold a meeting of a council or council committee at a place open to the public does not in itself make unlawful informal gatherings or discussion involving—

(a) members of the council or council committee; or

(b) members of the council or council committee and staff,

provided that a matter which would ordinarily form part of the agenda for a formal meeting of a council or council committee is not dealt with in such a way as to obtain, or effectively obtain, a decision on the matter outside a formally constituted meeting of the council or council committee.

That is why it matters if people caucus. The interest of the member for Croydon in this council is intense.

The Hon. B.V. Finnigan: They can't have a binding caucus; there's no such thing.

The Hon. DAVID WINDERLICH: If I was responding to interjections, I would read it again, but it is on the record.

The Hon. B.V. Finnigan interjecting:

The PRESIDENT: Order!

The Hon. DAVID WINDERLICH: The interest of the member for Croydon in this council is intense. He weighed in first and most heavily on the St Clair land swap, despite the fact that the area of land is not even in his electorate and not part of any of his portfolios. He has even apparently, so he says, leafleted the area to build up support for the issue. I assume he was using his electorate allowance to leaflet the Hon. Jay Weatherill's electorate, a most generous act on his part.

I have been told by Australian Labor Party members that the person responsible for anointing councillor Paul Sykes is, in fact, the member for Croydon. I am told that is the way it works there. I must stress that at this stage we do not have evidence of actual conflict of interest; I am merely stating that the preconditions for a conflict of interest are very clear, and these preconditions have created a general community concern about the influence of the Australian Labor Party on the City of Charles Sturt. Specific concerns about the potential conflict of interest in relation to the St Clair land swap centre around the fact that the revocation of the community status of this land is essential to the policy objectives of the Labor government.

The importance of the St Clair land swap has been clearly articulated in media interviews over the past week by the Minister for State/Local Government Relations, Gail Gago; Attorney-General Michael Atkinson; Treasurer Kevin Foley; and today the Minister for Urban Development, Paul Holloway, pointed out that it was, in fact, part of the 30-year plan. So, this project depends on the St Clair land swap, and the success of that depends on approval by the Minister for State/Local Government Relations. So, an ALP policy coming through an ALP dominated council will be assessed by an ALP minister. It is important to be clear that the minister does have significant powers in relation to the land swap. Section 194(3) of the act provides:

After complying with the requirements of subsection (2), the council—

(a) must submit the proposal with a report on all submissions made on it as part of the public consultation process to the Minister, and

(b) if the Minister approves the proposal—may make a resolution revoking the classification of the land as community land.

So, the minister has the power to reject the proposal from the council. Again, casting no aspersions on the current occupant of the position but outlining the inherent conflicts of interest, could we assume that a minister would do this? Might the minister lose or gain some benefit on the basis of the decision that the minister would make? The obvious ones are preselection and ministry positions. So, clearly, there is a potential for conflict of interest built in here.

The Hon. B.V. Finnigan: So, we have to have a parliament full of Independents, do we?

The Hon. DAVID WINDERLICH: Thank you for the advertisement. Conflicts of interest are inherent in local government, but they can be managed. One of the ways in which they are managed is outlined under section 48 of the act, and that is to prepare a prudential report that identifies all the risks associated with a particular decision. Section 48(2)(h) provides:

any risks associated with the project, and the steps that can be taken to manage, reduce or eliminate those risks (including by the provision of periodic reports to the chief executive officer and to the council);

So, there is an opportunity for the council to identify and manage this obvious risk, a risk which is widely spoken about in the community and which community members refer to in the media. So, this risk is not a hidden one: it is widely commented on.

I have a copy of the City of Charles Sturt Land Swap Prudential Report June 2009. It does not refer to the risks created by potential conflicts of interest or perceived conflicts of interest. In fact, it does not refer to these matters at all. It is clear that the City of Charles Sturt has not managed the risk of conflict of interest in this process.

The story so far is that a council, dominated by Labor members, allegedly—and I emphasise 'allegedly'—controlled by a senior Labor member and minister, a council on which there is clear potential for benefits being handed out, has to refer a matter of vital interest to a Labor minister whose political future could potentially depend on the consequent decision.

I will outline some specific problems with the St Clair land swap consultation itself that have been highlighted to me by residents. For example, residents believe that the consultation was conducted in a way that minimised the number of members of the community consulted. Only residents within 500 metres of the land were consulted about this proposal, including an area with very few residents on it, such as the former racecourse, Woodville High School, the former Actil site and the Charles Sturt complex itself. Residents claim that sports clubs and associations were offered brand new facilities and, as part of the consultation with them, their support was claimed as part of the process. Residents claim the 1,100 students at Woodville High School were counted as individual residents as an indication of widespread support for the land swap.

The relative value of the land being exchanged has been mentioned. Earlier today I asked the Minister for Urban Planning and Development about the value of the Actil site. He was not aware of it. I have here a draft contract for the sale and purchase of land that was prepared in June for Charles Sturt council as part of its confidential documents. This document refers to section 13 of annexure five. It states:

At the date of this agreement the land is part of a public park and recreation ground that is subject to a scheme under the Recreation Grounds (Joint Schemes) Act 1947 and community land under the Local Government Act 1999.

Clearly, this is the St Clair land. The identified purchase price in the draft contract for the sale and purchase of this land is $17,382,200. Again, community members have pointed out with some force and common sense that prime recreational land which is uncontaminated with frontage to a major road would be worth more than contaminated industrial land that is not a high quality reserve. We do not know the difference but, whatever the difference, in some way it probably constitutes at the very least a potential benefit to the Land Management Corporation which may be passed on to a developer. Again, there are more potential conflicts of interest.

So we have a council that is riddled with conflicts of interest; a council that has not managed those conflicts of interest; members of the government that appear to be controlling that council; a potential benefit to the Land Management Corporation and down the track a developer; a consultation process about which questions are being asked; and the umpire for this game is one of the players, namely, a Labor minister.

The Hon. B.V. Finnigan: We are all members of the Labor Party.

The Hon. DAVID WINDERLICH: Well, that is where you come back to the importance of—

The Hon. B.V. Finnigan interjecting:

The Hon. DAVID WINDERLICH: I note the compliment about my even-handedness in tackling east and west, Liberal and Labor. Again, it is another advertisement for independence in parliament. I thank you again for that second advertisement.

It is clear that some sort of independent scrutiny of this matter is needed. It is an unusual situation. The obvious body to provide that independent scrutiny is the Ombudsman. I have received a large number of other allegations, which I need to substantiate, but they all point in the same direction. The very least you could say is that you have to make a very important decision of great concern to local interest that is clearly open to major conflicts of interest; and I think, arguably, that invalidates the process.

How deep it runs is a matter for the Ombudsman to determine, but more information will come forward—certainly in my remarks—and other members will be able to bring forward more information. I commend the motion to the council.

The Hon. M. PARNELL (17:26): I rise to support this motion. I will not go into all the detail that has been so adequately covered by the Hon. David Winderlich, but I do want to add to the case why further investigation is required. I have met with residents from around the St Clair area. I have spent a lot of time talking to the people—

The Hon. B.V. Finnigan interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order! The Hon. Mr Finnigan and others will get an opportunity to contribute on this matter, if they wait. The Hon. Mr Parnell has the call.

The Hon. M. PARNELL: Thank you, Mr Acting President. I have spent a lot of time talking to the residents of Cheltenham, and what strikes me about this whole exercise is that there has been a lack of trust on the part of both the state and local governments in trying to engage with their local communities and to bring their communities with them in what are in many cases some sensible proposals for development.

Not all of what is being proposed for this part of the western suburbs is a complete disaster. There is a great deal of merit in it, but it needs the governments concerned to bring the communities with them and to listen to them, particularly in relation to the provision of open space, the need to manage stormwater and the recovery of that important resource for the community.

The consultation over the three parcels of land we are talking about—the Cheltenham site, the Sheridan site and now the St Clair site—has been inadequate. In many ways you could say that the governments have done what they have had to do. I am not saying that the governments have acted illegally. They have worked to rule. They have done the minimum required of them, but they have not done enough to bring the community with them.

The state government tells us that it has a grand plan and a grand vision. We have seen some of that in the 30 year plan, the subtitle of which is 'Planning the Adelaide we all want'. What a funny subtitle, given the complete lack of commitment on the part of the state government to actually bring the community with it The fact that it did not organise any consultation whatsoever in relation to the 30 year plan is testament to that.

The government does the bare minimum it believes it can get away with, but it has not been getting away with it because there is open revolt in Labor's heartland. People in Cheltenham and Woodville are telling the state government that they are not happy with the way in which the state government and the local council is behaving.

Earlier today the Minister for Urban Development and Planning stated what I would call the obvious. The minister talked about the history of how these parcels of land have come to be developed and he said that the owners of the Sheridan site came to him as minister with a proposal to develop. The minister told us today:

It obviously made sense [to deal with them together] given that it was right next door—about 17 hectares—to the site of the Cheltenham racecourse, to consider it together. Since both those parcels of land were being considered, the potential to look at the whole region, given that council owned the land around St Clair, it made sense to look at the entire area from Cheltenham Road right through to Woodville Road, because with the significant amount of open space land available in that area the potential for a path that went right the way between those two roads would have been a significant community asset for the people of the western suburbs.

That is a very sensible comment that the minister made, but he has made it 2½ years after rejecting it. He rejected it when the Environment, Resources and Development Committee wrote to minister Holloway on 7 March 2007 in the following terms:

Dear Minister

Re: City of Charles Sturt—Sheridan Site—Plan Amendment by the Minister.

The Environment, Resources and Development Committee at its meeting on 21 February 2007 considered the City of Charles Sturt—Sheridan Site—Plan Amendment by the Minister. The Committee discussed the circumstances where two significant contiguous parcels of land in the western suburbs are being considered independently of each other; namely, the Cheltenham and Sheridan sites. The Committee is aware that decisions regarding the Cheltenham site are well progressed. The open space outcomes for the two sites should not be disparate. The development and open space potential for the two sites is enhanced if considered in an integrated manner. The Committee recommends pursuant to section 27(3)(b) of the Development Act 1993 that the Sheridan Site zoning be considered together with the Cheltenham site.

That was the clear advice to the minister. However, the minister chose to effectively use a loophole because the committee, in its wisdom, had decided that it had no objection to the Sheridan rezoning. He grabbed hold of that and said, 'Well, you've told me you don't object to Sheridan, so therefore I am not going to pay any intention to your suggestion to me that we look at the Sheridan and Cheltenham sites together.'

Now, 2½ years later, we have the minister in this place saying, 'Of course it was obvious to look at them together.' However, we have to consider why there has been this sort of a backflip. I do not think it is a backflip. The government always intended that these parcels of land would be developed together. The reason was that the government, having committed to 35 per cent open space on Cheltenham, did not want to make that commitment to the citizens of the western suburbs to have an equal amount of open space on the Sheridan site. It knew that if it rezoned them separately it could get away with just 12½ per cent open space on the Sheridan site. Now we find with this land swap, the subject of this motion before us, that the land that is being swapped—the oval next to the Cheltenham Railway Station being swapped for contaminated industrial land—will be plonked on top of what is effectively the 12½ per cent. So, we are losing that as well.

Is it any wonder that the citizens of Charles Sturt, and the citizens generally of the western suburbs, are very unhappy with the way in which the state and local governments have approached this issue? They have been treated very poorly; they have been treated like mushrooms. The government is saying that it has a big plan, but it deals with people in a piecemeal way and it has made no attempt to bring the community with it. I believe that those reasons, in addition to those set out by the Hon. David Winderlich, are more than adequate reasons for us to support an inquiry into this whole deal.

Debate adjourned on motion of Hon. J.M. Gazzola.

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