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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-15 Daily Xml
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BURNSIDE CITY COUNCIL

The Hon. S.G. WADE (14:35): I seek leave to make a brief explanation before asking the Minister for State/Local Government Relations a question about the City of Burnside.

Leave granted.

The Hon. S.G. WADE: In answering a question from the Hon. David Winderlich yesterday, the minister repeatedly referred to the government's dealings with the Burnside council before she became the relevant minister. I indicate to the minister that my questions only relate to matters since she was appointed minister.

The minister was appointed Minister for State/Local Government Relations on 24 July 2008. Eight days later, on 1 August 2008, the minister's departmental head, Mr Knight, wrote to the Mayor of Burnside listing a number of complaints against Burnside council, including concerns that the council is placing inappropriate weight in a range of decisions on the views of a person who is neither an elected member nor a member of staff. The letter indicated that, before considering the need for a section 272 investigation, Mr Knight was 'providing the council with an opportunity to make submissions in relation to the allegations made' and strongly encouraged 'the submission to represent a unanimous position of the council and one that is approved by all councillors at a meeting'.

On 2 July 2009, almost a year later, the minister wrote to the Mayor seeking a submission from council before a section 272 investigation would be considered, but there is no mention of allegations in relation to the improper influence of an unelected person. At the conclusion of yesterday's sitting of this council, the minister provided details of the Burnside council's response to the 1 August 2008 letter. The minister is reported in today's Advertiser as stating that lawyers had assessed the complaints against Mr Powers and determined the complaints were unsubstantiated. She said:

In light of that the complainants were informed of this outcome and invited to provide any additional information they may have. Nevertheless, they could still not be substantiated.

My questions to the minister are:

1. Did the Burnside council provide a submission on the influence of an unelected person on council decision making in response to Mr Knight's letter of 1 August 2008?

2. Which lawyers were engaged to consider the complaints against Mr Powers, as reported in her comments in this morning's Advertiser?

3. Who engaged the lawyers; when were they engaged; were the lawyers asked to advise on issues of undue influence; and were the lawyers asked to advise on issues of corruption?

4. Why did the minister fail to refer to this legal advice when she outlined to the Legislative Council last night the actions taken following the 1 August letter?

5. As the minister failed to mention the issue of allegations of undue influence on an unelected person in her letter of 2 July, will it be possible and is it the minister's intention for these concerns to be looked at in any proposed 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) (14:38): I thank the member for his question and for the opportunity to further clarify my position on this and the work that is being done around this matter. Obviously, investigating a council is a very serious step and one that I do not take lightly. As I have stressed in this council before, what most impresses me is that we adhere to a process that I am required to follow under the appropriate legislation but also that due process is given to all parties involved, and I have stipulated that very clearly in the past in this place.

In relation to the particular matters that the honourable member raised in relation to a letter from my former chief executive, Geoff Knight, at the time (I think it was around August 2008) the head of the department formerly responsible for state/local government relations, PIRSA, followed up with respect to complaints relating to Burnside council last year, writing to its Mayor and asking the council to respond to a range of allegations and advise how it proposed to avoid intra-council conflict in the future, and that is the letter to which the honourable member referred. The Mayor's response to my department in late 2008 detailed several approaches to deal with the conflict. They included a revised code of conduct, incorporating an independent investigation process, concerning which they stated they had had no complaints since its inception in April 2008; an elected members' grievance policy, under which no such grievances had been lodged; that the council had been reminded of its duty to make informed decisions in a professional and responsible manner and in the best interests of the community; and a mediation workshop for councillors and the CEO, which was to be arranged.

I am advised that these matters were further explored by the Chief Executive of PIRSA and that two meetings occurred between the Chief Executive and the Burnside Mayor. The recommendation of an appropriate mediator was canvassed, resulting in the council's appointment of Professor Bagshaw, who conducted the mediation. I am further advised that this mediation commenced in October 2008 and took a couple of months or so.

In relation to complaints we received, I am advised that the department, with crown law assistance, assessed the veracity of the complaints and determined that they lacked sufficient substantiating evidence. The Chief Executive reported back to me during a meeting in 2008 and advised that he was satisfied that measures were being taken by the City of Burnside to improve its internal operations and that there was insufficient evidence at that time to trigger an investigation under section 272 of the Local Government Act in relation to any of the complaints we had received up until that time.

The complainants were then advised that allegations 'are too general and lack sufficient evidence to support initiation of an investigation under the act'. Complainants were invited to provide any additional information they may have had that might assist in substantiating the allegations; nevertheless, I am instructed that the complainants still could not provide substantiating evidence. Complainants were advised by the CEO of the department that no further action was intended by the PIRSA Chief Executive. In a letter to the complainants, he said:

Despite my request for further evidence to support your claims, your letter to me and your prior correspondence provide no substantiating evidence of a contravention of the law or a failure to comply with the law or a failure on the part of the council to discharge a responsibility or an irregularity in the council's affairs that would enable the minister to commence an investigation under the Local Government Act 1999.

Subsequent to this, between November 2008 and March 2009, one complainant continued to submit further complaints to my office. These complaints have been thoroughly assessed by the Office of State/Local Government Relations, in conjunction with crown law, but they were also deemed to be lacking the detail required to be able to substantiate the allegations.

There are two important points to be made and, although I have made them previously, I think I need to go through them again to complete this detailed response. An investigation under the Local Government Act requires a trigger and a reasonable belief of a breach of legislation. Last year, there appeared to be none and, importantly, an investigation was never recommended to me by the department at that time. It is also important to note that similar complaints were also forwarded to a series of other authorities for review, including the Police Anti-Corruption Branch, the Police Complaints Authority, the Equal Opportunity Commissioner and also, I believe, the Ombudsman. I am advised that to date no action has resulted from those authorities either, and I will talk about the Ombudsman's report in a minute. I just wanted to clarify those remarks. Clearly, the resignation by the CEO of the City of Burnside in June this year was significant. In his statement, the CEO said:

I find it impossible to condone actions which potentially compromise my responsibility to provide a safe workplace free from harassment and bullying.

I was obviously deeply concerned by this, and I took the opportunity to instruct officers from OSLGR to commence preliminary inquiries to ascertain whether a potential investigation may be warranted. This, and the prolonged high level of dispute and friction amongst members, now appears clearly to have reached a stage that will potentially affect the council's decision-making processes.

In considering an investigation, I obviously need to take into account the preliminary information gathered by my department last month, any council responses (which are due on Friday this week), as well as any possible patterns that may have become apparent from past complaints or more recent matters.

If an investigation is warranted, I can certainly assure South Australians that the terms of reference will be broad enough to capture any and all breaches, including whether inappropriate weight has been placed by the council in any decisions on the views of a person who is neither an elected member nor a member of staff that could constitute a breach of legislation. If anyone has any evidence of corruption, it should be forwarded immediately to the police Anti-Corruption Branch.

In relation to the Ombudsman's report, which dealt with a development application matter and appropriate administrative procedures, on 2 January 2009, in accordance with section 25(3) of the Ombudsman' s Act 1972, the Ombudsman provided me with a report setting out his findings on the matter of complaint against the City of Burnside. Based on the Ombudsman's investigation, the Ombudsman formed a view that there was no evidence to support the complaint and allegations. Nevertheless, the Ombudsman found that some of the council's internal controls were inadequate.

On 19 February 2009, I wrote to the council requesting that it provide me with a submission in response to the report, detailing how it has reviewed its internal processes and what improvements have been made in order to prevent recurrence of the incidents. The council responded to my request, advising that it has implemented appropriate internal measures to ensure that investigations are carried out, with a follow-up system for any such future complaints.

I am satisfied that the council has responded adequately to the issues outlined by the Ombudsman, and I will write informing it that I will not be taking any further action in relation to that, but I intend to seek a further update from the council on the operation of the installation of its follow-up system.

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