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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-14 Daily Xml
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BURNSIDE CITY COUNCIL

The Hon. S.G. WADE (14:52): I seek leave to make a brief explanation before asking the Minister for State/Local Government Relations a question related to the City of Burnside.

Leave granted.

The Hon. S.G. WADE: The minister wrote to the City of Burnside on 2 July 2009 in relation to a possible investigation under section 272 of the Local Government Act. Section 90 of the Local Government Act lays down the fundamental principle that in South Australia a meeting of a council or council committee must be open to the public. The minister's letter to the council was faxed to Mayor Greiner on 2 July 2009 with a fax cover sheet stamped 'Urgent' at the top and 'Confidential' at the bottom. The body of the fax was headed 'Urgent and confidential'. The letter itself was marked 'Confidential' and contained the following penultimate paragraph:

I anticipate that a copy of this letter will be forwarded to each elected member, and the CEO, and dealt with in confidence in a meeting of the Council. The issues I raise in this letter are serious and as such there are serious implications for all individuals involved. Its confidentiality is paramount and my expectation is that it will be respected.

A report in The Advertiser dated 8 July stated:

The State Government says there was no need for the public to be evicted from a Burnside council meeting on Monday night. State/Local Government Relations Minister Gail Gago said the public could have been permitted to remain if the council avoided discussing a confidential letter sent by her.

On the very day that the minister's comments were reported, that is, 8 July, I understand the President of the Local Government Association wrote to the Mayor of the City of Burnside where she expressed the concern of the LGA in these terms:

...the Minister's position that her confidential letter to Council could have been managed without the use of the confidential provisions of the Local Government Act. This position has implications for the whole of local government.

My questions are:

1. Why did the minister ask for the letter of 2 July to be treated in confidence and then publicly criticise the council for having gone into confidential session at its meeting of 6 July?

2. Did the minister act to uphold the Local Government Act commitment to open meetings and contact the council at any time prior to its second in-confidence meeting yesterday (13 July 2009) and indicate that she was happy for the council to discuss the matter in open session?

3. What has the minister done to address the concerns of the Local Government Association that she is mismanaging the use of confidential information in the context of the possible section 272 investigation?

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (14:55): I thank the member for his question and for the opportunity to clarify and speak further about the work that the government has done in relation to resolving a series of issues and problems associated with the Burnside council—and there have, indeed, been protracted problems.

I have previously put on the record in this place that there are three steps involved in terms of pursuing my powers under the Local Government Act to appoint an investigator. The first step is that I must have a reasonable belief that a problem or a breach of some sort has occurred. The second is that I give reasonable opportunity for the council to explain its actions in relation to those concerns. The third is that, if I am then not satisfied, I can proceed to appoint an investigator.

The act is quite clear about these matters. Obviously, I have worked very hard and very cautiously to make sure that there is absolute adherence to the proper process so that there can be no accusation of this case being flawed in any way whatsoever, and I have gone to great lengths to ensure that that happens.

This process looks at whether or not an investigation should occur. In terms of the first stage (that is, that I have a reasonable belief that there is a problem), a preliminary investigation was conducted by officers of my agency. I have previously put on the record that they conducted a range of interviews and put together a report compiling a list of allegations and concerns raised by various councillors and other staff members of Burnside council.

As I have said publicly before, those allegations are unsubstantiated. The purpose of the preliminary inquiry was simply to collect information about the issues and to determine whether problems were occurring and the nature of those problems. It was not the responsibility of that inquiry to investigate the authenticity of the evidence around those allegations, nor would it have been proper for it to do so. That is a matter for the investigation itself if the investigation is to go ahead.

I was in a position where I needed to raise with the council issues about which I had reasonable concern, but I felt that I needed (and I had legal advice to this effect) to do it in a way that ensured due process and natural justice for everyone, given that the allegations were unsubstantiated. That is why the letter was properly marked 'confidential' and why I requested, particularly in relation to identifying and talking about allegations around individuals, that they be dealt with and treated in a confidential way as well, not to mention issues around the potential for defamation. We all treasure our homes, and we want to keep it that way.

There are legal aspects around raising allegations, particularly unsubstantiated allegations. That is the reason the letter was couched in those terms and why I requested that the council give confidential consideration particularly to specific elements that may have been discussed around individual behaviours or practices. In relation to the powers of the council, it has the right, in certain circumstances, to go in camera or to have discussions in confidence. The act outlines the sorts of reasons or situations that might warrant a council applying those particular provisions and councils have the right to do that.

In terms of my criticisms of the council, I have never criticised the Burnside council for adhering to my request that these matters be dealt with confidentially. It is fascinating that this document marked 'Confidential' to the Burnside council has now been, it would appear to me, freely circulated. We have members of parliament and other people quoting from it, which I think is a very telling issue in itself. In fact, there was no criticism made of the council treating it in a confidential way. What I was disappointed about was the decision around the bringing in of the police and the removal of people from the gallery, which I believe could have been handled in a far more sensitive way.

Human beings are rational and reasonable people and I am sure that, if the general public had had an explanation from the council as to the reason for the need to discuss matters in camera, an adequate explanation as to what the council wanted to do and why it needed to do it, people would have left in an orderly and respectful way. I am quite confident that that would have happened.

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