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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-07-29 Daily Xml
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BURNSIDE COUNCIL

The Hon. S.G. WADE (11:28): I move:

1. That this council notes community concern that appropriate action be taken in relation to actions of the former Burnside council, councillors, staff and non-elected persons.

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 as to whether the Burnside City Council has contravened, or failed to comply with, any provisions of the Local Government Act 1999, any other act, or good standards of public administration—

(a) whether the council's adoption and implementation of policies, practices and procedures between the 2006 election and the 2010 election reflected good administrative practice in the areas of—

i. the alleged improper use of confidential council information by elected members and by staff of the council;

ii. the obligations of elected members to act honestly, and with reasonable care and diligence, in the performance and discharge of their official functions and duties;

iii. dealing with conflict between elected members, and between elected members and staff;

iv. ensuring a working environment that is free from harassment and bullying;

v. managing the relationship between the council and individual ratepayers; and

vi. any other matter;

(b) the circumstances of the chief executive's resignation and reinstatement in June 2009;

(c) whether the council's meeting practices between the 2006 and 2010 election fulfilled the council's obligation to act as a representative, informed and responsible decision-maker in the interests of the community;

(d) whether improper weight has been placed by elected members or by staff of the council in making any decisions of council on the views and/or influence of a person who is neither an elected member nor a member of staff since the 2006 election;

(e) whether a 'public officer', as defined in the Whistleblowers Protection Act 1993, who engaged with or was engaged by the investigation into the Burnside council, by Mr MacPherson, acted appropriately and in accord with relevant professional codes; and

(f) any other relevant matter.

3. That in terms of section 14(3) of the Ombudsman's Act, this council resolves that the administrative acts covered by this resolution warrant investigation by the Ombudsman, despite the passage of time.

4. Notwithstanding that these terms of reference relate to matters since the 2006 election, the Ombudsman is able to collect evidence that is relevant to these terms of reference that may have occurred prior to the 2006 election.

Allegations of mismanagement, corruption and general dysfunctionality have been pervasive at Burnside council for years.

Members interjecting:

The Hon. S.G. WADE: I hope you can hear me, Mr President.

Members interjecting:

The PRESIDENT: Order!

The Hon. S.G. WADE: The opposition understands that some of the allegations that were the subject of investigation by Mr Ken MacPherson were brought to the attention of the then minister for state/local government relations, Jennifer Rankine, more than half a decade ago; that is, in 2006. Yet, calls for investigations went unheeded by this government and the problems grew to become the landmark investigation that we know today.

It is hypocritical for the current minister to tell the council that he is going to talk to the LGA about the need to address issues early. The lack of action by the government in the early stages of the Burnside case was one of the major factors leading to its escalation, and was the government's first major failing. Five ministers have at one point or another been responsible for managing the concerns relating to Burnside: ministers Rankine, Gago, Finnigan, Conlon and now Wortley. None of them has given the issues of Burnside the attention they deserved.

The story of Burnside is a story of mismanagement, a story of ministers not taking community concerns seriously, a story of complete disregard for good governance in South Australia. This 'hear no evil, see no evil' approach is typical of the Rann Labor government. The cloud of arrogance is so thick that it is oblivious to the looming fiasco on the horizon.

More than a year of public and parliamentary pressure eventually forced minister Gago to act. On 2 July 2009, she asked the Burnside council to explain itself. Not being satisfied by the council's response, the minister launched an independent investigation, led by Mr Ken MacPherson, on 22 July 2009, under section 272 of the Local Government Act. Of course, we now know that a number of the key documents were dodgy and that a number of the terms of reference given to Mr MacPherson by the minister were invalid. This was the second major failing of the government.

The investigator was due to report in October 2009, just three months after the investigation commenced, but on 13 October 2009 minister Gago announced an extension that had been given for at least another four months and then, four months later, another extension for at least another month. Another two months passed. On 31 March 2010, the minister announced the report was still not yet ready and the period of natural justice was about to commence. A year had passed since the investigation had commenced and still there was no result.

It took until 9 August 2010 before parties named in the report were offered a copy of the report and the natural justice period commenced. It was a story of delay upon delay. This delay raises serious doubts as to minister Gago's scoping of the task and the resourcing of the team. On 24 August 2010, the first copies of the draft report were handed to councillors, council staff and other parties named in the report. They had a mere three weeks to consider the report and seek legal advice. With local government elections about to take place, the natural justice period concluded and the legal action commenced.

What followed was more than nine months of action in the Supreme Court. The report was suppressed. Details began to emerge in the media, serious allegations have been reported, yet still the minister responsible failed to take the concerns seriously. During this time, the Attorney-General sought advice from the Solicitor-General—advice that has apparently been withheld from the current Minister for State/Local Government Relations. Finally, on 28 June 2011, the Supreme Court action concluded. The court had found that it was in the public interest that the investigation proceed but that it do so on revised terms of reference: minister Wortley decided otherwise, and this was the government's third major mistake.

Instead, the minister abandoned the investigation altogether. Without consulting the investigator, he declared the investigation into the 'petty' issues at Burnside, as he called them, closed. The minister did not even bother to read the report. He claims he could not trust himself not to disclose or leak information from the report to the media. The minister simply thought it would blow over if he stuck his head in the sand. His subsequent comments have raised more questions than they have answered. His obfuscation about who has and who has not read the report, his confusion of investigatory, prosecutorial and legal processes, and his apathy towards concerns relating to the investigation, all highlight the failings of this government and its attitude towards corruption.

Needless to say, had South Australia had an ICAC we would not be facing this dilemma. The opposition has been calling for an ICAC for half a decade—almost as long as the issues at Burnside have been disregarded by government ministers. A properly empowered and resourced investigation would have provided a resolution to these matters swiftly and comprehensively. The government is now claiming that issues such as these would be referred to the proposed public integrity office, which is at least 18 months away from operation, but the government's lightweight public integrity commissioner will only be able to investigate matters, where they reach a criminal threshold.

An investigation through the ICAC-lite structure into matters such as Burnside would have left significant issues unanswered. The public, Burnside ratepayers and the local government community want these administrative and systemic issues addressed. The government, through its inaction, has effectively forced the opposition to govern in its absence. We have but one mechanism to deal with such allegations: a reference to the Ombudsman. Of course this matter could have been dealt with years ago, but years of inaction, mismanagement and apathy have let old wounds fester and so the saga continues. The Liberal Party wants to ensure that the matters raised in relation to Burnside council are thoroughly investigated.

Criminal allegations are outside the scope of the Ombudsman's authority. This means a two-pronged approach is necessary. The first needs allegations of criminal conduct to be referred to the Anti-Corruption Branch and not just the Commissioner of Police, as the minister did on Monday. The second is the need for a referral of the report and the materials to the Ombudsman for investigation of administrative acts related to the Burnside council.

The terms of reference presented in the motion today are the same as those originally given to Mr MacPherson with two key differences. The first difference is that the terms of reference have been expanded to include whether a public officer, as defined in the Whistleblowers Protection Act 1993, who engaged, or was engaged by the investigation into the Burnside council by Mr MacPherson, acted appropriately and in accord with relevant professional codes. This is listed under section 5 of the motion.

The whole series of five ministers, but particularly ministers Gago and Wortley having taken most decisions in this matter, would appreciate that a minister's actions are not within the jurisdiction of the Ombudsman and nor are the actions of a minister's delegate such as Mr MacPherson, but certainly we understand that the actions of public officers who engaged or were engaged by Mr MacPherson would be subject to review by the Ombudsman.

The second point of difference from the original terms of reference is the inclusion of a statement that the Legislative Council resolves that the administrative acts covered by this resolution warrant investigation by the Ombudsman despite the passage of time. This is required so that the Ombudsman is empowered by the act through the council's motion to investigate all circumstances of the case that should be investigated, despite being outside the 12-month jurisdiction usually applicable to administrative acts.

Mr MacPherson is known for his thorough approach and that approach, together with the actions of the minister, did lead him to go beyond the valid terms of reference. We are confident that between the Anti-Corruption Branch and the Ombudsman, they will have the jurisdiction to thoroughly investigate the concerns raised. We are confident that this two-pronged approach will give the matters the attention they deserve. South Australians deserve to have confidence that concerns in relation to public probity are properly dealt with.

I do not intend obviously to bring this matter to a vote today and, depending on the discussions with other members, when we resume in September or it may take longer, I just stress that the opposition is open to these terms of reference being improved. The fact of the matter is that the Supreme Court finding has underscored how important it is to make valid referrals to investigating bodies.

We have made our best effort to provide terms of reference that stay within the Ombudsman's jurisdiction and deal with all issues, but if any member of the council or for that matter the wider community wants us to consider amendments to the motion to ensure that they are as effective as possible, that they are comprehensive and that they are robust, we are certainly open to that. Our hope is that this referral will ensure that we can resolve the issues that have been unresolved so that the Burnside community and the wider South Australian community can move forward.

The Hon. R.P. WORTLEY (Minister for Industrial Relations, Minister for State/Local Government Relations) (11:39): I oppose this motion; that will be no surprise. I attended a meeting today of about 30 mayors at the Arkaba Hotel.

Members interjecting:

The PRESIDENT: Order!

The Hon. R.P. WORTLEY: Everything all right?

The Hon. T.A. Franks: Keep going.

The Hon. R.P. WORTLEY: I just might have wanted to join the discussion. I attended a training seminar at the Arkaba this morning as keynote speaker and made a presentation. When I got to accountability and scrutiny I said, 'Does anyone want to hear about the Burnside council?' Not one person required me to discuss it, and mayors are never shy in coming forward.

After, at the tea, I brought up the issue, and the general feeling I got from people is that they want the Burnside issue to move on. They see that the negative publicity on the Burnside issue is tarnishing all local government and they have much more pressing issues to involve their councils than the Burnside issue. They are very happy that the office of public integrity is being established and that I am working with the Local Government Association to look at the Local Government Act regarding giving councils the sort of powers they need, backed up by legislation, to handle the sort of issues that occurred at Burnside right in the very early stages.

So, I will be opposing this motion. I think that to tie up the Ombudsman's resources in something which has dragged on for two years now is a waste of money. I have put in place a situation where the Crown Solicitor's Office will be going through all of the material and if it finds any evidence for the allegations it will be referring it to the DPP, who will then, if there is a need for further investigation, send it off to the Anti-Corruption Branch. I think that is the appropriate way of handling this.

Debate adjourned on motion of Hon. P. Holloway.

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