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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-03-29 Daily Xml
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Bills

Constitution (Council Member Contesting Election) Amendment Bill

Introduction and First Reading

The Hon. T.T. NGO (16:15): Obtained leave and introduced a bill for an act to amend the Constitution Act 1934. Read a first time.

Second Reading

The Hon. T.T. NGO (16:16): I move:

That this bill be now read a second time.

I rise to speak to the Constitution (Council Member Contesting Election) Amendment Bill 2017. I move this bill with the intention of resolving a long and heated issue in local government that currently surrounds the candidacy of local councillors and mayors at state elections. Currently, there is nothing in state legislation that requires councillors and mayors who run for state parliament to take a leave of absence or resign from their council positions during a state election campaign. Owing to the lack of clarity on this matter, some of these candidates have chosen to take a leave of absence, whilst others have not. Even amongst those who take leave, there is still a varying degree of difference in when that leave is taken.

As honourable members would know, before I was elected to this parliament I was serving as a councillor on the Port Adelaide Enfield Council. During the 2010 and 2014 state elections, I was a candidate for the Australian Labor Party and I made the conscious decision twice, before the 2010 and the 2014 elections, to take a leave of absence. It was my decision alone and neither the ALP nor the council asked that I take a leave of absence.

In the 2014 state election, when I took a leave of absence, the local Messenger newspaper ran a story, dated 12 February 2014, with the headline:

Port Adelaide Enfield councillors call for Mayor Gary Johanson to stand down from his role during State Election campaign.

The article states:

Port Adelaide Enfield Mayor Gary Johanson says he has no reason to step down as mayor while he campaigns for the seat of Lee, despite fellow elected members encouraging him to do so.

Parks Ward Cr Tung Ngo, who will be placed number three on the Labor Party's ticket for the Legislative Council, last night told the chamber he planned to take a leave of absence from February 15.

He later told the Portside Messenger he believed Mr Johanson should follow suit.

Cr Ngo said continuing as a councillor during the caretaker period would confuse his constituents because they would be unsure if he was representing the council or the ALP.

'Some people applauded me for doing it and if he's there during the campaign period you'll get people asking who is running the council—to eliminate that, you step down.'

Cr Bruce Johansen said running for election would take time away from being the mayor or a councillor.

'My reason is you can't be seen to use the council resources (such as the mayoral car and office) to run for election—other people wouldn't have the same opportunity,' Cr Johansen said.

Parks Ward Cr Tung Ngo is running for the Legislative Council.

Cr Carol Martin supported Cr Ngo's decision to stand down, saying Mr Johanson should do the same to show he was impartial during the campaign.

However, Cr Mark Basham said the suggestion Mr Johanson should step aside was 'a load of rubbish'.

'As far as I'm concerned any elected member of council if they wish can stand for parliamentary office,' Cr Basham said.

Mr Johanson said he would not use his mayoral car, phone or office to campaign during the lead up to the election, and there was 'no legal or ethical reason for a candidate to stand down'.

Mr Johanson said the LGA should create guidelines for elected members running for state or federal elections, including whether they should step down from their roles and when that should be.

As you can see, there are diverse views on this very matter. It can cause a split and disunity within council when one of the council's elected members decides to contest a state or federal election. In my case, there was no right or wrong decision as the law is unclear on this matter. Mayor Gary Johanson was just as well within his rights not to take a leave of absence.

I can understand Mayor Johanson was not very happy with me when he read the article. However, I did explain to the journalist at that time that Mayor Johanson was within his rights not to take leave, even though I believe all candidates should take a leave of absence from council. Since the journalist did not print the second part of my comments, Mayor Johanson felt I was only criticising him, which was far from the truth. Mayor Johanson and I have been friends for many years and we are still very close.

Members may also remember the Messenger reporting in the same way at that time in response to Mayor David O'Loughlin's (Mayor of Prospect) decision not to step down from his role on the Prospect council while running as an ALP candidate for the state seat of Adelaide. So, that week I had two local mayors, one Independent and one Labor, who were not very happy with my comments in the Messenger newspaper.

My bill seeks to provide a consistent approach across all councils and to resolve this unnecessary confusion by inserting a new section 45A into the Constitution Act, which provides for an automatic leave of absence under the act when an elected member of local government decides to run for state parliament.

For candidates from registered political parties, the leave of absence kicks in from the issuing of state election writs and ends at the closing of the poll. Having consulted with the Local Government Association (LGA), they have advised me that this is the most appropriate time for leave of absence to apply. For Independents or non-registered political party candidates, the leave of absence will kick in from the close of nominations and end at the closing of the poll.

The slight difference in when the leave of absence kicks in for registered political party candidates as opposed to non-registered political party candidates is something I consider necessary, as the experience has been that many Independent candidates nominate or withdraw their nomination in between that period from the issuing of writs and the closing of nominations.

This automatic type of leave of absence, rather than leaving it as any other form of leave of absence which is often left to council policy to administer, is my preferred option, as well as the LGA's. Therefore, there would be no need for a candidate to apply and seek approval from council, either through a council meeting or through the CEO. An automatic grant of leave of absence will eliminate some unnecessary delays. Since the close of nominations and the close of polls are a couple of weeks apart, there could be further delays if council were left to grant leave of absence.

We live in one of the greatest democracies in the world. Everyone is encouraged to seek public office. It does not matter what race, religion or what job you do; every Australian who is old enough is entitled to put up their hand to get involved in the political process. Councillors and mayors should be free, just like the majority of other citizens, to seek higher public office.

My amendments in this bill will give elected members of a council a clear guideline when running for state parliament. Furthermore, during the last few weeks of campaigning, it will stop elected members from being accused of using their council position to promote their candidacy and politicise their council. It is important that South Australia maintains the image, unlike other states, that our councils are non-political.

Some members may ask why I have only provided for this enforced leave of absence during what is effectively the official part of the election period. I believe that this is when the media and voters really begin paying attention to the campaign. One of the concerns of the LGA is the issue of councillors and mayors having to take a lengthened form of leave if it was enforced from the announcement of candidacy.

I agree with that view, that a lengthy leave of absence could negatively affect the operations of a council. I do not believe that forcing resignations is a solution either, as it can cause costly by-elections or leave vacancies that can extend for a long period. Also, forcing an elected member to resign means councils can also find themselves losing an experienced mayor or councillor, particularly those who run in unwinnable state or federal seats.

At the time of the last federal election, the ALP candidate for Boothby, Mr Mark Ward, was a councillor for the City of Mitcham. He was told to resign from council. Unfortunately for Mr Ward, he did not get elected to federal parliament. As a result, Mitcham council had to conduct a costly by-election. You could say that, unfortunately for the residents of the City of Mitcham, they also lost an experienced local councillor who was very effective and well liked by many of the local residents. Ideally, a policy asking Mr Ward to take a leave of absence when the writs were issued would have produced a better outcome for all concerned.

The LGA, the Marion council, the Tea Tree Gully council and the Port Adelaide Enfield council have all indicated that they are supportive of my proposal. I am told that no council has indicated that it is against this proposal. It is important to note that this bill can only address the issue of state candidates from local government. Federal parliament would have to amend its constitution act to ensure that federal South Australian candidates serving as mayors or councillors come under a similar system, if my amendments are accepted.

The LGA has indicated to me that they would like to have seen this bill addressing other matters that have surfaced during their consultation with elected council members. The first matter is whether members' allowances should still be paid during leave of absences, as well as whether continued access to council reports and its bureaucrats should be allowed.

These areas that may constitute such a candidate carrying out their councillor functions or duties can be resolved through council policy, such as remuneration, email use and other services. While there may be benefit in addressing these areas, this is not the primary intent of my bill. In any case, clause 3 of new section 45A in my amendment bill adds a broad definition of a member of a council's duty while on leave, to set a uniform standard across local government.

In terms of council members' allowances, my personal view is that everyone has their own personal circumstances. The elected member, while running for parliament, still has to deal with issues relating to their area. In my view, he or she would still be taking phone calls, reading emails, etc. Similarly, when an elected member takes leave of absence due to illnesses or takes personal leave, such as holidays, would their allowance still be paid? That is the question I would ask. This matter was discussed informally during my time on the Port Adelaide Enfield Council. Therefore, I will leave these matters to each individual elected member and their council to work through under the guidance of the LGA.

The LGA also raised the issue of quorum, in saying that my amendments could create a problem where a quorum may not be achieved. The LGA would like to have seen an amendment made to section 85 of the Local Government Act to reinstate a provision for the minister to approve a council operating without a quorum. The LGA thought of a possible scenario, although most unlikely, where a number of elected members were required to take leave of absence and then a few elected members also called in sick. This scenario would then leave a council unable to reach a quorum for the council meeting.

While I understand that this is possible, although highly unlikely, in my opinion if there is such a scenario then it is probably best that the meeting is deferred to a different date when such a quorum is found. I have experienced situations during my time at Port Adelaide Enfield Council where there was not a quorum at a meeting. The council administration just set a new date and did a ring around to make sure that a quorum was met.

The LGA has also raised questions about the interpretation of 'the office' from which elected members are to take leave of absence. The LGA was seeking confirmation that councillors and mayors would also be required to take leave from committees or other subsidiaries of council. Certainly from my experience at Port Adelaide Enfield Council, my understanding is that the current practice is to apply that leave of absence to the elected member's entire role.

The matter of whether an elected council member should take leave when running for state parliament has been an issue for a long period, and I hope my amendments will go a long way to putting this matter to rest for our hardworking elected members of local government. In the same Messenger article that I mentioned earlier it stated:

…Playford Mayor Glenn Docherty stepped down two weeks ago to avoid any perception of a conflict of interest in his campaign in Newland for the Liberal Party.

LGA acting president Lorraine Rosenberg said the idea of developing guidelines on elected members running for parliament had not been raised at the association.

Ms Rosenberg said her personal view was elected members should step down from their local post if they ran for parliament.

'In my view, that's absolutely the correct thing to do,' she said.

So, even the now president of the LGA, Ms Rosenberg, in her personal view, agrees that elected members should step aside if they run for parliament.

I have another article from the Messenger, dated 24 February 2014, entitled 'Prospect Mayor David O'Loughlin takes leave from council to concentrate on campaigning for the seat of Adelaide'. I have a couple of small paragraphs to quote, and the first states:

Last week, Norwood, Payneham & St Peters Mayor Robert Bria called on the LGA to introduce clear guidelines for any mayors or councillors who campaigned to enter state or federal politics.

Mr Bria said mayors and councillors running in next month's state election should go on leave during the campaign so party politics did not influence council decisions.

With that, even Mayor Robert Bria echoed the same concerns as the current LGA president. I hope honourable members, once they read through my bill, will support me in getting this through so that it provides guidance and clear guidelines for our councils' elected members.

Debate adjourned on motion of Hon. J.S. Lee.

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