Burnside Council

Adjourned debate on motion of Hon. J.S.L. Dawkins:

That in accordance with the recommendation in the report of the Select Committee on the Inquiry into the Corporation of the City of Burnside, the Legislative Council refers the report to the Office of Public Integrity for its consideration.

(Continued from 21 May 2014.)

The Hon. T.T. NGO (16:50): The Hon. Gerry Kandelaars was the government member on the committee and he is currently on leave this week. On behalf of the Hon. Mr Kandelaars, I would like to put on record to the council his dissenting statement to the committee. I quote the honourable member:

As the Government Member on the Burnside Enquiry Select Committee I do not support all the recommendations made, and conclusions reached, in the Select Committee's Report.

In July 2011, the investigation into the previous Burnside Council was terminated by the then Minister for State/Local Government Relations. This occurred at the completion of the legal action in relation to this matter, with the judgment of the Full Court of the Supreme Court handed down in May 2011.

The Full Court maintained the suppression order placed on the draft Provisional Report prepared in 2010 by the Investigator. Following the Full Court judgment and, having considered appropriate advice, the then Minister for State/Local Government Relations took the decision that the investigation into the Burnside Council should not proceed.

However, the Minister also requested that the Crown Solicitor consider relevant material gathered by the Investigator so that, if any evidence of possible criminal activity existed, those matters could be referred to the Director of Public Prosecutions.

In November 2011, the Attorney General advised that the Crown Solicitor's Office, having examined the draft report and relevant material, noted that there was insufficient admissible evidence to support any reasonable prospect of a successful prosecution for any offence.

In the November 2010 Council elections, a new Council was elected. None of the previous Burnside councillors were elected to the new Council.

The Full Court has since delivered a further judgment in these proceedings, to the effect that three aspects of the terms of reference were found to be invalid and that the terms of reference were required to be read narrowly. However, importantly, the ruling held that the Minister had reason to believe that there was basis for investigation and that the council was not acting as a representative, informed and responsible decision-maker in the interests of the community.

It is clear that the establishment of the Select Committee was politically motivated and it is no surprise that the Committee would conclude that it was not appropriate for the then Minister of State/Local Government Relation, the Hon Russell Wortley MLC, to cease the unfinished investigation by Mr Ken MacPherson. Given the evidence before the Committee, the decision of the Minister was not unreasonable and was supported by the Local Government Association.

The Hon. J.A. DARLEY (16:54): I rise to support the motion of the Hon. John Dawkins. I would like to just take a few moments to mention some of the issues that influenced my decision:

the statement by the Chief Justice that this is a matter of public interest;

the complication caused by the fact that the MacPherson draft report was suppressed from publication by the court;

the fact that the Burnside Council unanimously resolved that the report of the investigator should be completed and released;

the fact that there was conflicting evidence provided by witnesses who attended the workshop convened by the LGA in July 2009 to advise councillors and staff as to how to deal with the proposed MacPherson investigation;

the difficulty caused by the fact that the previous CEO was not available due to health reasons;

the fact that the previous mayor could not recall the content of the meeting in July 2009;

the fact that the current CEO, who was formerly a senior member of council staff, could not recall whether he attended the meeting in July 2009 and, when he later recalled attending the meeting, the fact that he could not recall details of that meeting;

questions surrounding evidence provided by the police;

the fact that the former police commissioner did not read the draft report, notwithstanding that matters were referred to him for investigation; and finally

the fact that the then minister for state and local government relations on advice decided not to complete the investigation without even reading the draft report.

The Hon. S.G. WADE (16:56): I rise briefly to speak to the motion of the Hon. John Dawkins. With all due respect to the Hon. Mr Ngo, considering that he was speaking on behalf of a member not present, I would remind the council what the motion proposes. It is not actually a debate even to note the committee's report: it is to respond to the committee's recommendation that the report be referred to the Office of Public Integrity. If I could draw the council's attention to why the committee came to that conclusion. When this council was considering establishing this inquiry, there were two issues in particular that I highlighted in my contribution: one was the cost and one was the issues.

At that stage, we had been told by the government that there had been $1.3 million spent on the MacPherson inquiry into the Burnside council, and we knew that that was only the cost to the government. That does not include the cost to the Burnside ratepayers through their contributions to the Burnside council. We knew that Burnside council had spent significant amounts of money supporting members, including through the provision of counselling services. In my contribution I suggested that it may well have been a total cost of about $2 million to the state, yet that investment was to be left hanging by the decision of the then minister.

The issues were not insubstantial; they were so serious that the then minister, the Hon. Gail Gago, warranted a section 272 inquiry. Then, when the portfolio responsibilities had moved to the Hon. Russell Wortley on 6 July 2011, he made a ministerial statement to conclude the inquiry and subsequently indicated that he had done so without even reading the investigator's report. The process had been complicated by legal proceedings that had taken this matter to the Supreme Court, but I remind the council that the Supreme Court took the view that the public interest required both the completion of the inquiry and its speedy completion. Obviously, in making those observations, the court would have been mindful of the difficulties of achieving that outcome in light of its own judgement, because it did find that there were problems with the inquiry in terms of its compliance with its terms of reference.

The committee took the view that the government's decision or the minister's decision not to proceed with the inquiry was not well based in terms of both the cost that had already gone into it and the issues that had been left unresolved, and also in terms of natural justice. A number of people have been drawn into the process and many of them were very keen to have the issues resolved, let alone the taxpayers of this state and the ratepayers of Burnside.

So the committee deliberated, and its recommendations 1 to 5, on page 10 of the report, go through a series of options in terms of what should be done from where we are now. The committee took a lot of evidence, and decided that it would not be appropriate for the investigator to complete his inquiry, for the Ombudsman to proceed with the inquiry, or for a select committee of this place to be formed.

It did make specific recommendations in terms of the report being considered with a view to amendments to the Local Government Act; but the key recommendation of the committee, which the Hon. John Dawkins' motion reflects, is recommendation 5, 'That the Legislative Council considers referring this report to the Office of Public Integrity for its consideration.' I quote from page 19 of the report:

After consideration of all the terms of reference, the committee concluded that the most appropriate and productive action at this point in time would be for the Office of Public Integrity to consider the report and consider whether any further investigations should be carried out and any action which is possible taken under the Independent Commissioner Against Corruption Act, 2012. That body is independent and would not be constrained by the issues arising due to the initial problems with the terms of reference and possible legal challenges. Further discussion of the ICAC is found in terms of reference (a) v below.

I stress to the council that in making that recommendation, the committee is not assuming that there is a matter of corruption that could be prosecuted. Let us remember that the Independent Commissioner Against Corruption Act charges the Office of Public Integrity not merely with assessment of issues of corruption but also of issues of misconduct and maladministration. Not only can the Office of Public Integrity refer matters to the ICAC further investigation of corruption, it can refer matters to public authorities and other inquiry agencies related to misconduct and maladministration.

I believe that the flexibility of the office and the ICAC means that the committee's conclusion is well founded, that it is our best prospect of maximising the resolution of the issues that have been raised by this inquiry. It is not going to provide satisfaction to many people in the Burnside saga, and I appreciate that; however, I certainly believe that the committee is wise to come to the conclusion that it provides the best outcome amongst a series of inadequate outcomes.

This situation has been the creation of two ministers of this government, who we believe have not properly handled matters in relation to Burnside. We believe that supporting this motion and having this report, and the issues it raises, considered by the OPI is an appropriate next step, and I support the motion of the Hon. John Dawkins.

The Hon. J.S.L. DAWKINS (17:03): I appreciate those members of this chamber who have made a contribution to this motion, and a number of others who have expressed their support without wishing to speak this afternoon. I thank the Hon. Mr Ngo for bringing forward the dissenting statement that the Hon. Mr Kandelaars attached to the report, as is his right. I would also like to particularly thank the Hon. Mr Darley and the Hon. Mr Wade, because I think they have made some valuable points in summarising the key issues of a very complex matter.

As I said when moving this motion, I think it is one of the most complex matters that I have ever dealt with in this parliament. I particularly appreciate the succinct way that the Hon. Mr Darley went through a number of points that clearly cut through the issues that were key in our examination of this whole matter.

Without speaking for too long, I should give credit to our former colleague, the Hon. Ann Bressington, for her passion in seeking to have this matter examined by a committee of the Legislative Council and for her chairmanship of the committee for the great majority of its time. I also thank all the other members who worked very hard when we discovered that the Hon. Ms Bressington was no longer available to chair the committee. We worked very hard during a very busy time in the lead-up to the caretaker provisions coming into operation so that we could make sure we got that report delivered to the then president. I thank those members for their support for me as acting chairperson of that committee, in delivering the report and also in bringing this motion to the council. With those words I commend the motion to the council.

Motion carried.