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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-19 Daily Xml
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ST CLAIR LAND SWAP

The Hon. M. PARNELL (15:11): I seek leave to make a brief explanation before asking the Minister for Local Government Relations a question about the St Clair land swap.

Leave granted.

The Hon. M. PARNELL: Less than a hour ago the minister made a statement to the parliament in which she described the process, as she saw it, that the council and herself as minister were required to go through before the disposal of community land could occur. Her statement included the following:

I am mindful that it is my statutory responsibility not to make judgment on the merits of the project but to assess whether the council has fulfilled the steps required in relation to community land revocation as set out in the Local Government Act 1999.

A look at the Local Government Act shows that it says no such thing. The act sets out the process of consultation the council must go through, and then it goes on to say that 'the council must submit the proposal with a report on all submissions made on it as part of the public consultation process to the minister'. It then goes on to say that if the minister approves the proposal then the minister may make a resolution revoking the classification of the land as community land.

In fact, there is no such requirement for the minister not to have regard to the merits of the proposal, and it is quite reasonable to interpret that section as requiring the minister to have regard to the submissions because, if that was not the case, why on earth would the submissions be sent to the minister? My questions of the minister are:

1. Does she have legal advice to support the position she has taken and, if so, will she provide it to us?

2. On what basis does the minister claim that she is legally obliged not to make a judgment on the merits of the proposal when she is legally obliged to be provided with a report on the submissions, all of which deal with the merits of the proposal?

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) (15:13): I thank the honourable member for his question and the opportunity to clarify this important matter. The act requires that councils provide a report and that the report must contain a summary of the reasons for the proposals to revoke the classification for community land.

The Hon. M. Parnell: No; just the submissions.

The Hon. G.E. GAGO: That is right. I have gone through all this, but I will go through it all again. The report must have a summary of the reasons so, if there is to be a sale, the report must contain details of any government assistance, etc., and an assessment of how implementation of the proposal would affect the area and the local community. If the council is not the owner, the report must also contain a statement of any requirements made by the owner as a condition, and also a map of the defining area.

Under the act the council must also adopt a consultation policy—so that is also required—and this policy forms the basis of the council's engagement with its local community. At a minimum a council is required to publish a newspaper notice describing the matter under consideration, inviting submissions and subsequently advising the consideration by council given to those submissions. So, those matters must be included in the report. If they are not, the application does not satisfy the requirements of the act and it would be my responsibility not to approve it and to send it back.

So, there is a difference involving, for instance, the requirement for the council to have a consultation policy. There is a requirement that the council adopt that policy throughout this procedure. That consultation policy requires that the council invites submissions and then seeks responses to those particular submissions. It is my responsibility to check that an application does all those things.

It is within the legal rights, or responsibility, of council to then determine what it decides in relation to that. For instance, my requirement is to make sure that council has invited submissions, that submissions have been received in some way and that consideration has been given to those submissions. I have undergone a process to ensure that the council has done all those things.

The matter of whether the land swap is a good or bad proposal is outside of my purview. I have to ensure that council has met its legal responsibilities, which is that it has to invite submissions, consider those submissions and then respond to those submissions. That is my part of the job, and I have ticked off those responsibilities.

Members interjecting:

The PRESIDENT: Order!

The Hon. G.E. GAGO: The council has fulfilled all those responsibilities. The act is quite clear that I can consider only those matters that are relevant to the act. So, for those matters that are outside of that I could be accused of going outside my legal responsibilities, and then my decision could be challenged. So, it is most important that my decisions are made on matters that are relevant to the act, and I have outlined those matters; any other decision could quite easily be challenged.

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