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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-28 Daily Xml
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BURNSIDE COUNCIL INQUIRY

Adjourned debate on motion of Hon. A.M. Bressington:

1. That a select committee of the Legislative Council be established to inquire into and report on—

(a) The legality and appropriateness of the decision of the Minister for State/Local Government Relations to terminate the inquiry pursuant to section 272 of the Local Government Act 1999 into the City of Burnside, and to ascertain:

(i) the likely duration and costs of proceedings with the inquiry to the completion of a final report by the investigator;

(ii) the likely duration and costs of proceedings with the inquiry to the completion of a final report by the Ombudsman;

(iii) the likely duration and costs of proceedings with the inquiry to the completion of a final report by a select committee of the Legislative Council;

(iv) any legal impediments to the finalisation of the investigation; and

(v) the authority to which to refer any allegations of criminal conduct; and

(b) Any other relevant matter.

2. That the committee consist of six members and that the quorum of members necessary to be present at all meetings of the committee be fixed at four members and that standing order No. 389 be so far suspended as to enable the chairperson of the committee to have a deliberative vote only;

3. That this council permits the select committee to authorise the disclosure or publication, as it thinks fit, of any evidence or documents presented to the committee prior to such evidence being reported to the council; and

4. That standing order No. 396 be suspended to enable strangers to be admitted when the select committee is examining witnesses, unless the committee otherwise resolves, but they shall be excluded when the committee is deliberating.

(Continued from 14 September 2011.)

The Hon. K.L. VINCENT (20:05): I rise today to place very briefly on the record my reasons for supporting this motion, and indeed the support of d4d as a party for re-opening the Burnside inquiry more generally. I am constantly flabbergasted by the continual examples of mismanagement that this government provides when attempting to deal with the Burnside council. I will not recount them one by one, because the Hon. Ann Bressington gave a thorough list of events when moving this motion.

I do, however, want to highlight the absurdity of the position that the government has left everyone in. What we have here is a council which exhibited enough evidence of inappropriate behaviour to warrant a state government investigation, and quite a lengthy one at that. Then, we have a finding from the Supreme Court confirming that it was in the public interest to conduct this investigation.

Despite these two strong indicators that the findings of the investigation would be worth hearing, the public has been cut off indefinitely from any conclusion of these issues. I understand that the current findings are not appropriate for publication, dealing as they do with some terms of reference which the Supreme Court found to be not within the appropriate scope of such an investigation, but this position where we drop the matter entirely is simply ridiculous.

The investigation into the former Burnside council was warranted and has been mandated by the Supreme Court decision. It is clear that the public deserve some answers to the questions they rightly ask about the former Burnside council. Unfortunately, despite the logical reasons to continue this investigation, minister Wortley has decided against it.

I am very supportive of having a committee established to examine the Hon. Mr Wortley's decision, with a view that this inquiry might eventually lead to a point where we can see some real resolution of the original concerns around the Burnside council. I commend the motion to the house.

The Hon. S.G. WADE (20:07): I do not intend to detain the council for long because I think it would be monotonously aware of my conviction that the people of South Australia, and particularly the ratepayers of Burnside council, deserve to have a solution to the MacPherson inquiry.

The minister, I think, suggested yesterday that the state expenditure on the MacPherson inquiry was in the order of $1.3 million, but that understates the cost to the state. There have been significant costs to the Burnside ratepayers through the contribution of the Burnside council, let alone the costs in relation to providing support to people who needed to make representations to the inquiry.

I would not be surprised if it were not already over $2 million that the people of South Australia, in various forms, have invested in this investigation. Let us remember that this government said that the situation at Burnside was so serious that it warranted a very rare event, a section 272 inquiry under the Local Government Act. That was a decision by this government, in fact it was a decision by minister Gago, who is now the leader of this house.

So, if the government thought that the issues relating to the Burnside council were so serious that they warranted a section 272 inquiry, then the people of South Australia, and particularly the ratepayers of Burnside, deserve to have those issues resolved. In that regard, the government repeatedly extended further money and further time to Mr MacPherson.

Clearly, minister Gago and her successors were convinced that the issues that were raised in the Burnside council investigation warranted that level of expenditure and that investment of time. But then at the end of the process we had this bizarre situation where minister Wortley—who by this time was on this side of the merry-go-round that is called the Labor Party local government ministers—decided that rather than resolve the inquiry he would terminate it, after a Supreme Court judgement that did, indeed, raise issues for the management of the inquiry going forward.

The house would know that, on behalf of the Liberal Party, I have moved a reference to the Ombudsman of the matters that have been left unresolved by the MacPherson inquiry, but I will inform the house that the Liberal Party will be supporting this resolution. We will not be seeking a council determination on the Ombudsman's inquiry reference until the committee being proposed by the Hon. Ann Bressington has reported.

We think there is real wisdom in the approach that the Hon. Ann Bressington has suggested, because we believe that the people of South Australia do deserve a cost-effective approach to get a resolution. The Hon. Ann Bressington's motion envisages at least three options to resolve the issue: firstly, that the original investigator complete his investigation; secondly, that the investigation be proceeded with by the Ombudsman; and, thirdly, that there be a select committee of the Legislative Council.

As Liberals, we are very keen to make sure that we do not waste another dollar of taxpayers' or ratepayers' money unnecessarily, so we believe that what I think the Hon. Ann Bressington described as a short, sharp and shiny select committee is wise. I would be surprised if this committee needed to meet more than two or three times, and I would hope that the council would have a resolution very quickly.

In that context, I believe the council will be in a good position to decide what is the best way of giving the people of Burnside and the people of the state the answers they seek. What we do not believe is acceptable is this government's approach, which is to say, 'It mattered in 2009 to have a section 272 inquiry; it doesn't matter now.' In that regard, I am reminded of the Hon. Russell Wortley's series of press releases, commonly called the 'listening series', which talks about the diminution of public confidence in the government and the government of the state. He used to mention the Burnside inquiry in that context, but he stopped. I actually think he was right the first time.

The Burnside council situation, unresolved, I think will continue to undermine the confidence of South Australians in the public administration of the state—not just local government, but state government. Just as the Liberal Party advocates strongly for an ICAC, we believe that the confidence of the people in the governance of this state is fundamental to a healthy democracy. We will be supporting the Hon. Ann Bressington's motion and any other motion that serves to restore, protect and enhance the trust of the people of South Australia in the governance of this state. I commend the motion to the house.

The Hon. M. PARNELL (20:12): The Greens will be supporting this motion. In declaring that position, I remind members that it has been the approach of the Greens, certainly for the last five years, to support motions that we see fall into the category of important unfinished business. I think this particular inquiry well and truly falls into that category, as did the inquiry into the stashed cash affair that had not reported, the inquiry into the Atkinson/Ashbourne affair that had not been reported when I first came to this place, and the Greens supported the continuation of those to a proper conclusion.

The advantage that this current inquiry has over those others is that the light at the end of the tunnel is certainly a lot clearer. Those other ones I think did go on a bit too long, but I accept what the Hon. Ann Bressington says: that this will be short, sharp and shiny. I think the people of Burnside have a right to get to the bottom of this, to find out whether the decisions that have been made have been made properly, and whether in fact it is legally possible to get final resolution of this matter.

We do not see this as a witch-hunt; I know that is how it will often be explained. We see it as the right of the people of Burnside and the people of South Australia to get to the bottom of this, to find out exactly what has happened and whether offences have been committed. Whichever of the different pathways to that outcome the committee ultimately resolves, I think it is appropriate for us to keep this going until we get to the bottom of it. The Greens will be supporting the motion.

The Hon. J.A. DARLEY (20:14): I rise briefly to indicate my support, both as a member of parliament and as a Burnside resident, for the Hon. Ann Bressington's Burnside council inquiry motion. I, like the Hon. Ann Bressington, do not accept the minister's decision to terminate the inquiry into the City of Burnside or the justifications provided by the minister in relation to that decision.

As we all know, on 22 July 2009 the then minister for state/local government relations appointed Mr MacPherson to investigate and report to the minister on matters relating to the council of the City of Burnside. The terms of reference of that inquiry were subsequently the subject of judicial review, ultimately with the Full Court of the Supreme Court.

The judgement handed down by the Full Court of the Supreme Court provides, at paragraphs 16 to 18, the following:

It is in the public interest that Mr MacPherson complete his inquiry, and report to the Minister, as soon as practicable, on matters within the scope of the Terms of Reference as limited by the Court. The difficulties confronting him in doing so will have to be dealt with, if and when they arise. The orders claimed by the plaintiffs do not prevent him from reporting to the Minister, if he can do so relying on material on which he is entitled to rely.

The legal and practical problems that now arise are attributable to the fact that the plaintiffs brought the proceedings late in the piece. The challenge to the Terms of Reference could have been made at any time from the appointment of Mr MacPherson.

In these circumstances, we consider that the public interest in Mr MacPherson completing his inquiry and reporting to the Minister, if he is able to do so, should prevail.

The court judgement then goes on to provide at paragraph 19 the following:

Mr MacPherson should now complete his inquiry and report to the Minister as soon as practicable.

Here we have the Full Court of the Supreme Court telling us that Mr MacPherson should complete his inquiry albeit within the scope of the terms of reference as limited by the court. Despite this, the minister has seen fit to terminate the inquiry and leave Burnside residents, and South Australian residents more generally, in the dark as to the outcome of the original inquiry.

The Hon. Ann Bressington has already indicated that this should be a short, sharp and shiny inquiry aimed at establishing whether or not the correct decision has been made by the minister in terminating the original inquiry. I agree with that position and, as already mentioned, will be supporting this motion. In supporting the motion, I also consider that the Hon. Ann Bressington should be appointed as chairperson.

In closing, I move an amendment to enable the committee now to be a five-person committee rather than a six-person committee. Therefore, in paragraph 2, I move:

Leave out the words 'That the committee consist of six Members and that the quorum of Members necessary to be present at all meetings of the Committee be fixed at four Members and'.

The Hon. I.K. HUNTER (20:17): The government does not support this motion—no surprise there. I could stop there but I need to put to rest some of the nonsense we have just heard from previous speakers. First, in relation to the Hon. Mr Darley's speech, amendment and suggestion that the Hon. Ann Bressington be the chair, I also suggest that the Hon. Mr Parnell also go on the committee. He can take my place. The Hon. Mr Parnell I think currently is on no select committees and I am on about six or seven—so Mark, anytime you like you can pick this one up.

The motion seeks plainly to establish a select committee to inquire into aspects of the investigation of the Burnside council and less clearly to consider how the investigation could be completed. The Minister for State/Local Government Relations has made it abundantly clear in this place the reasons for the government's decision to terminate the Burnside investigation. He has told us that it is not in the public interest to continue a potentially lengthy and costly process to complete a report within the terms set down by the Supreme Court.

We all know in here that there is a newly-elected council at Burnside getting on with the job. It is not fair to them or to the public to continue to inquire into a report that the President of the Local Government Association has correctly said would have minimal value. I am informed that, despite statements made by the Hon. Ann Bressington, the government has been advised by crown law that its decision to terminate the inquiry is not unlawful.

A select committee can call for as many opinions as it likes. The government and its ministers will act on the appropriate advice it receives. I am also advised that the government has taken action to address the community concerns about allegations of possible criminal conduct during the term of the previous Burnside council. It is my understanding that the Crown Solicitor has been asked to review the material gathered by the investigator (Mr MacPherson) and to refer any evidence of possible criminal activity to the Director of Public Prosecutions. In taking these actions, the government has endeavoured to ensure that material from the MacPherson investigation is appropriately scrutinised.

What will actually be achieved by this motion? Will it actually be possible to complete the investigation report as proposed in the terms? It has to be recognised that there are likely to be significant legal difficulties in doing so, whether it is the investigator or the Ombudsman, or a select committee attempting to do so. Some people, possibly the plaintiffs in the court action, or others, may very well take further court action for the return of documents and evidence gathered by the investigator, given the Full Court judgement.

The material gathered would need to be unravelled with regard to what parts are valid and what are now invalid under the terms of reference of the investigation. Two of the options which this motion canvasses include the Ombudsman completing the inquiry or that another select committee of this house could complete the inquiry at some other stage—surely, illogical; surely, just plain silly.

Surely the Ombudsman would need to conduct any form of inquiry under the terms of his own act. He could not just pick up the inquiry where Mr MacPherson left it, particularly given the legal rulings affecting the validity of the terms of reference and thus the collection of some evidence. The Ombudsman would presumably have to start the inquiry from scratch, under his own powers, and gather and assess evidence from a council and witnesses again. Similarly, the government fails to see how a select committee could just continue on from what has been done to date and complete the investigation.

If the investigation were to be completed it must be recognised that, under the Local Government Act, the Minister for State/Local Government Relations can only deal with the outcomes of such a report within their own jurisdiction, that is, under the Local Government Act. I am advised that under the act the minister can only deal with the council as a body, not with individuals, and the minister would have to consider acting against the council that has an entirely new make-up and has nothing to do with the old council that was the subject of the investigation in the first place.

The honourable member has continually implied that the government is covering up some secret in respect of the Burnside investigation. This is absolute nonsense. The government was very keen for the investigation to be completed as soon as possible, and had committed to providing a report to parliament provided there were no legal impediments to doing so.

I would like to take this opportunity to remind the house of what actually happened. I am advised that the investigator produced a draft provisional report in August 2010. He made it available to various people to give them the opportunity to respond to him. That is natural justice in action. Subsequently, I am informed that six people decided that they would not provide any response to the investigator and they sought a judicial review, as is their legal right, and they sought a suppression order. That is when the inquiry stopped effectively for more than six months. These people did not ever provide any comment or response to the investigator, as I understand it.

The draft report was never intended to be released to the public. It was a draft to which the investigator would no doubt have made changes if he had been able to consider the responses from all of those named in the draft report, review those responses and then prepare a final report. If the investigation were to proceed now, those people would presumably not provide any further input and are likely to seek, I would imagine, by court action the return of all documentation and records of interviews. What we should be focusing on now is such things as: was there any evidence or possible criminal conduct? As the minister has already stated, the Crown Solicitor's Office—

The Hon. A. Bressington interjecting:

The Hon. I.K. HUNTER: Well, listen, and you might find out. The Crown Solicitor's Office will be providing the government with advice on this. Should we not wait until this is available? Members will then be in a much clearer position to understand the situation and assess the value of any proposal to continue the inquiry. We should also have a look at how we can address and improve governance in local government and introduce appropriate reforms.

I am advised that key matters here include standards of conduct—local government needs a comprehensive model code of conduct for elected members of the council (it does not yet have one), with enforceable sanctions and penalties as recommended by the Attorney-General's Public Integrity Review. Local government itself is asking for enforceable sanctions for a code of conduct breaches. I also understand there are a range of other issues such as confidentiality provisions, conflict-of-interest provisions, meeting procedures, etc., that need to be covered by such a code.

How councils can be better equipped to deal with these matters is what we should be focusing on. What will be the best framework for investigating serious problems in councils in the future in the context of a new public integrity structure, and what options should there be for taking action after an inquiry report?

This is what we should be concentrating on now. This is what the government is working on now—a practical and forward-looking outcome, not an expensive trawl back over events that began five years ago with no real outcome possible.

The new Burnside council needs to be able to get on with its job, as it is doing currently. The current elected council members at Burnside were not involved or responsible for these matters. The effect on the current council of a continuation or the recommencement of the investigation should not be underestimated. Substantial time and resources are likely to be expended by the council and its staff and the community further troubled.

I ask members to think very carefully about this motion. What will it really achieve? Are you comfortable with more public money being spent on this whole process? The government opposes the motion, and I urge all honourable members to do the same.

The Hon. R.L. BROKENSHIRE (20:26): First of all, Family First advises that it will be supporting the Hon. Ann Bressington's motion. However, from a personal point of view, I have one question for the Hon. Ann Bressington and, depending on the answer, I may foreshadow an amendment to the wording of the motion.

I think it is fair to say that this whole mess started not under this current minister but under the former local government minister or even the one before. This minister is a new minister who picked up the pieces on behalf of several ministers and, frankly, on direction from the Executive Council of the government and possibly even the caucus.

My question to the Hon. Ann Bressington is: can she advise me of the intent of the wording in paragraph (a), 'The legality and appropriateness of the decision of the Minister for State/Local Government Relations' rather than 'the appropriateness of the decision of several ministers or of this government' with respect to terminating the inquiry? I have that question, but I again say that, in principle, we will be supporting the Hon. Ann Bressington in her motion to establish a select committee.

The Hon. A. BRESSINGTON (20:28): First of all, I thank all members for their contribution on this motion. It is obvious that we crossbenchers and the opposition are in unison on this. To answer the Hon. Robert Brokenshire's question, the reason the wording is as it is is simply that the minister made it very, very clear on several occasions that this was his decision and his decision alone and that he had not consulted with any other members of the Labor Party or the Labor caucus. I think it was on the second day of his taking over the portfolio, he beat himself on the chest and said that he had made this decision and that he would stand by it. There was no indication that the government had any influence whatsoever on his decision, hence the wording of the motion.

I think it is important to move forward with this now. I am sick of the circular debate and argument and so on that has been going on in this house for a very long time in relation to this issue. I want to make the point that I believe, as I think other members do, that this was a stupid decision that was backed up by stupid statements with no foundation at all and highly likely to be unlawful, according to the Local Government Act.

These are issues that may not be of concern to this government or to this minister, but they are certainly issues that are of concern to the people of this state. I also make the point that we handed up a petition with 1,680 signatures, which is not a lot out of 30,000 residents, as the minister acknowledged with a smirk on his face—'1,680 out of 30,000—so what?' Well, that is 1,680 people who were approached, as I made the point earlier. This is a concern even to people outside the Burnside council.

People have a perception that there has been a cover-up. What better way to put that to rest for a government that promised to re-engage and reconnect with the community and to be transparent. These actions have done nothing to curb suspicions and allegations that this is a secretive government, so let us get on with this select committee.

We intend to have Mr MacPherson in to verify that it would take millions of dollars and perhaps years to complete the report and ask him some questions that will not be in breach of any suppression orders. We are certainly not going to ask for a copy of the report, as was rumoured; we know the limits. We are simply after a way forward with this, to show whether the minister's decision was lawful and appropriate. I think the people of South Australia and the people of Burnside deserve answers to those questions. I support the Hon. Mr Darley's amendment.

Amendment carried.

The council divided on the motion as amended:

AYES (13)
Bressington, A. (teller) Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Franks, T.A. Hood, D.G.E.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G.
NOES (6)
Gago, G.E. Gazzola, J.M. Hunter, I.K.
Kandelaars, G.A. Wortley, R.P. (teller) Zollo, C.

Majority of 7 for the ayes.

Motion as amended thus carried.

The Hon. A. BRESSINGTON (20:36): I move:

That the select committee consist of the Hon. John Darley, the Hon. Stephen Wade, the Hon. John Dawkins, the Hon. Gerry Kandelaars and the mover.

Motion carried.

The Hon. A. BRESSINGTON: I move:

That the select committee have power to send for persons, papers and records, to adjourn from place to place and to report on 23 November 2011.

Motion carried.

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