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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-06-24 Daily Xml
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CHARLES STURT COUNCIL

The Hon. S.G. WADE (14:28): I seek leave to make a brief explanation before asking the Minister for State/Local Government Relations a question about the Charles Sturt council.

Leave granted.

The Hon. S.G. WADE: On 3 December last year, this council passed a motion directing the Ombudsman to investigate allegations of undue influence on the City of Charles Sturt and potential conflicts of interest. Since that time, four other Ombudsman's investigations into aspects of the St Clair land swap have been concluded by the Ombudsman.

While the Ombudsman cleared the council of wrongdoing in relation to these investigations, he specifically warned that no conclusions about the outcome of the parliamentary investigation should be drawn from the conclusions of the first four investigations.

On 15 June 2010, the City of Charles Sturt resolved to meet in closed session and decided to take legal action, such as declaratory relief or judicial review, to challenge the Ombudsman's decisions in relation to the investigation; the Ombudsman's investigation has been suspended while the legal proceedings are underway. This means that Charles Sturt council is the second council in South Australia that is at risk of going into the upcoming local government elections period with issues of probity left unresolved. My questions are:

1. Does the minister support the use of closed sessions of council to authorise the use of ratepayers' money to initiate legal proceedings, which will delay an accountability investigation on the eve of an election?

2. Does the minister have the power, under the Local Government Elections Act 1999 or otherwise, to postpone any election that would otherwise be held in the context of unresolved probity investigations?

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 for the City of Adelaide) (14:30): I thank the honourable member for his questions. In relation to the powers of councils to hold closed sessions, the Local Government Act provides that councils may exclude the public from meetings to the extent, and only to the extent, that the council considers it necessary or appropriate to receive, discuss or consider in-confidence matters that fall within one of a number of categories listed in section 90 of the act.

These categories are not restricted to commercial information of a confidential nature or information that could confer a commercial advantage on a person with whom the council is dealing, but includes such matters as legal advice and litigation, the unreasonable disclosure of personal affairs of any person and security and safety matters. A council is not automatically justified in excluding the public simply because a matter comes within one of those categories spelt out in the act.

Councils need to consider in each case whether it is really necessary or appropriate to do so, bearing in mind the principles of open government. Section 90 states that, in considering whether it is necessary or appropriate to exclude the public, it is irrelevant that the discussion of a matter in public may, for instance, embarrass the council concerned (or members or employees of the council) or cause a loss of confidence in the council, so those things are expressly mentioned.

Similarly, the council should only order that a document associated with a discussion from which the public are excluded will remain confidential if it is considered proper and necessary in the broader community interests. So, we can see that the act is quite clear in the direction it gives. Unless there is evidence that the council has breached one of those provisions, then the council has a right to consider matters and make decisions in a closed session if it falls within those parameters of the act. My understanding is that the decisions that were made, to which the honourable member refers, were made in accordance with those.

The Hon. S.G. Wade interjecting:

The Hon. G.E. GAGO: If the honourable member is suggesting that they are not, there is a process for him to raise those allegations and there is a very clear process to enable us to investigate and deal with those allegations. If that is what the honourable member is implying, I suggest that he does the responsible thing and take that course of action.

In relation to powers to postpone elections, I have been advised that the only powers I have as Minister for State/Local Government Relations to do such a thing would be in relation to the results of an investigation that showed or demonstrated in some way that there had been breaches or other serious issues of concern, and that in response to that investigation—and the honourable member understands that investigations have a series of phases that have to be adhered to under the act, so it is not a simple process by any stretch of the imagination, and if all those phases were adhered to and the result of the investigation was that an election should be postponed—I understand that I would then have the powers to take action against a council. If that action involved the postponing of a council election to address a particular issue of concern that had been identified in that investigation, then I believe I would have the powers to do that.

As I said, there are a number of triggers, if you like, that would have to be met before I could avail myself of those particular powers. I understand that the Ombudsman has powers to direct a council to take certain actions if he is undertaking an investigation and there is reason to believe that certain actions of the council should be prevented or modified in some way.

In relation to that particular investigation, I understand that the Ombudsman has powers to direct a council to take certain actions in those circumstances. So, there are legislative provisions and they are very specific. Obviously, to interfere in the democratic process is a very serious intervention and one that our legislation protects fairly fiercely. So, there are provisions, but they are only available under certain conditions.

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