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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2023-02-23 Daily Xml
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Local Government (Casual Vacancies) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:06): I move:

That this bill be now read a second time.

The Hon. K.J. MAHER: I seek leave to insert the second reading explanation and explanation of clauses in Hansard without my reading them.

Leave granted.

The Local Government (Casual Vacancies) Amendment Bill 2023 (the Bill) will amend the Local Government Act 1999 (the Local Government Act) to amend section 54 of the Local Government Act, to retrospectively restore to office those council members whose positions have become vacant due to their failure to submit their campaign donations return on time.

As noted by the Minister for Local Government in the other place, it is the responsibility of all members to make sure that they lodge their returns within the timeframe

I note that there have been numerous public references to new requirements, and I am advised that there were two changes to these requirements for the 2022 periodic elections that were made through the Statutes Amendment (Local Government Review) Act 2021.

The first was to require all candidates to lodge an additional return, shortly after nominations had closed and before voting had begun, so that voters could see which candidates had received donations, and, if they had, from whom. This was strongly supported at the time, as this information can be critical to voters' decisions about who they wish to vote for.

The second change was to require all candidates to lodge their returns with the Electoral Commissioner, rather than with the chief executive officer of the relevant council.

I am advised that this change was requested by the local government sector through the reform work that led up to the 2021 Amendment Act, and was also supported by the Local Government Association. The change reflected a view across local government that all aspects of council elections should be managed by the Electoral Commissioner as an independent body, as is the case for State elections.

I am also advised that other aspects of campaign donations returns remained unchanged through the Amendment Act.

In particular, the trigger within the Local Government Act that has caused the vacancies that have necessitated this Bill has been in place for life of the Act—more than twenty years.

However, before the 2022 periodic elections, I understand that this clause had never been triggered before—that there had been 100% compliance across 68 councils for six periodic and many supplementary elections.

Many of the elected members affected have made applications to the South Australian Civil and Administrative Tribunal (SACAT) for restoration to office, which SACAT may do if it is satisfied that the failure was due to circumstances beyond a member's control. The reasons put forward by members may therefore be considered in this context.

However, the Government's strong view is that it is not acceptable that their communities and ratepayers may have to bear the trouble and the cost of replacing a large number of council member positions.

To prevent this, the Bill proposes to amend section 54 of the Local Government Act to retrospectively effectively 'disapply' the provisions that automatically make a member's position vacant when they have not lodged a return within one month of the statutory deadline for doing so (which is 30 days after the conclusion of the election) by deeming the vacancies to have not occurred.

To prevent any confusion that may result from a retrospective disapplication of the vacancy of council member positions, the Bill also makes other amendments to the Local Government Act to ensure that acts and decisions by these members and their councils are not invalid due to this change.

The Bill also clarifies that the 45 members in question should receive their allowances and other entitlements as they were entitled to over this period.

In recognition of the importance of lodging campaign donations returns, the Bill also requires members to lodge their returns within 10 days of the commencement of these amendments, if they have not done so already, or their positions will become vacant.

I note that there is a tendency to describe this requirement to lodge returns as 'administrative', implying that it is simply a piece of red tape that council members must deal with.

In fact, making information about campaign donations known and accessible is critical for transparency, accountability, and ensuring trust in our elected member bodies. And it is just as important for members to transparently declare that they did not receive any gifts, if they did not. Simply not completing a return on this basis does not provide certainty to council members' constituents that this has been the case.

Therefore, the Bill makes clear that returns must still be lodged. It also does not affect the provisions within the Local Government Elections Act 1999 that provide that candidates in the election who did not return their campaign donations return may be liable for a $10,000 penalty. Of course, it will be open to the Electoral Commissioner to decide whether to pursue this course of action.

In closing, I emphasise once again that I am introducing this Bill to manage an unacceptable situation. The Government agrees with the Local Government Association (LGA) whose President, Mayor Dean Johnson wrote to the Minister for Local Government on 14 February to request a legislative solution to this particular problem, that it should be addressed now, in the best interests of councils and their communities.

We agree with the LGA President when he says that 'while the LGA accepts that individual elected officials bear personal responsibility for complying with their campaign reporting obligations, it appears the cost and consequence of not submitting paperwork on time is utterly unreasonable'.

The Minister for Local Government will also be looking at all measures to ensure that this situation is never repeated, as part of a review of Local Government elections that will be underway as soon as the current election processes are complete.

This has never happened in the history of the Local Government (Elections) Act 1999 until the previous government made changes to this process. For the benefit of our communities the Government is offering a solution.

Explanation of Clauses

Part 1—Preliminary

1—Short title

The short title is the Local Government (Casual Vacancies) Amendment Act 2023.

Part 2—Amendment of Local Government Act 1999

2—Amendment of section 54—Casual vacancies

Section 54 of the Local Government Act 1999 is amended so that the office of a defaulting member will be taken not to be, and never to have been, vacant as a result of the failure by the defaulting member to submit a prescribed return before the expiration of 1 month from the end of the relevant period for the member.

The terms defaulting member, defaulting period, prescribed return and relevant period for a member are defined.

In connection with the above, it is provided in the measure that—

the member's performance or discharge of official functions or duties during the defaulting period is not invalid or unlawful by reason only of the failure referred to above; and

no allowance, expense or other entitlement paid or payable to a defaulting member in respect of their office during the defaulting period is to be recovered or withheld by reason only of that failure.

A defaulting member must submit their prescribed return (unless the member submitted it during the defaulting period) within 10 business days after the day on which the measure commences. If they fail to do so, their office becomes vacant.

It is provided that the operation of Part 14 of the Local Government (Elections) Act 1999 is not affected by the measure and no act or proceeding of a council is invalid by reason only of the operation of subsection (1a) (as proposed to be inserted by the measure).

Other amendments are technical or consequential.

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

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