Wednesday, October 08, 2014

Does local government have parliamentary privilege?

Most folks are aware that State and Federal Parliaments have a degree of immunity conferred on elected members.  It’s called parliamentary privilege.  As long as you are in a session of parliament, on the parliament floor, you can say what you like, without fear or favour. 

Sometimes it is used wisely to rip open the sores of corruption and bad government.  Other times, it is used so badly as to deny natural justice to the common man, such that if the elected person’s allegations were repeated outside Parliament, they’d be slapped with a defamation writ so hard and fast, they’d be reeling over backwards.

There are also standards of parliamentary behaviour that have to be adhered to.  And we’ve all seen the saga of Peter Slipper and those cabcharge vouchers.

So what happens at the local government level?

There is no parliamentary privilege at all.  What you say has to be tempered, measured, factual, respectful and correct.  There’s a place for opinion, but you need to be careful in not what you say, but in how you say it in order to ensure fairness and equity.

And a recent innovation in Tasmania’s local government is the Code of Conduct.

For the full Hobart City Council’s Code of Conduct, go to:

And click on the Aldermanic Code of Conduct to download as a .pdf

I’ve listed the Standards at the end of this post for quick reference.

There have been a couple of issues with Codes of Conduct.  Firstly, if you’re found to have contravened it, there is no penalty.  And if an Alderman refuses to let the matter be dealt with by the Code of Conduct Panel, and the Mayor or Deputy has a conflict in hearing the matter, then a complaint goes nowhere.

And if you have a malicious way with words, you can set up a series of Code of Conduct complaints that effectively bullies and intimidates other Aldermen.  I know as I’ve seen this done to various of Hobart’s Aldermen.  And the problem is that even if a complaint is vexatious and/or frivolous, it has to be heard.  In one case the Panel finally told a complainant to not lodge such particular complaints for a period of 12 months.

So our glorious State Government has finally got around to drafting legislation to amend such anomalies.

And here’s the thing.  Have they got it right?

On the count of setting up an independent Panel of a lawyer and a person with experience in local government to hear all complaints across local government against breaches of the Code of Conduct, I give them full points.

Such measure relieves Mayors and Deputies of hearing complaints and gets rid of the conflict they may have in such matters.  It ensures there is proper legal advice and that that legal advice will now be a consistent application across Tasmanian local government. 

On the count of there finally being sanctions able to be applied, this too is a good idea, as currently an elected person can breach the Code and ignore any sanctions imposed by a Code of Conduct Panel.  The Panel lacks enforcement powers.  So if an Aldermen is found guilty and told to go off and get counselling for say, ethics or anger management, this can be ignored.  The verdict is entered on the Council Minutes, but who really reads these?  I’ve yet to see Tasmania’s journalists pick up on any local government Code of Conduct outcomes, let alone bring to public account any defaulting elected member.

On the count of three strikes against the Code of Conduct in a 4 year term and you lose office, well, there are some problems here.

Three minor breaches?  Three major breaches?  A mix of major and minor?

Let me illustrate the problem.  If you are a newly elected member, it is automatically assumed that you have knowledge of the legislation, regulations, codes and guidelines that apply to local government practice.  Now seriously, it’s a steep learning curve, and I defy anyone to know and understand even broadly all this entails within the first six to twelve months of being elected.

(I was lucky, I did, and only because I was mentored by already elected people for quite some years prior to finally getting onto Hobart City Council.  I was an exception.  And I still get things wrong because local government is a messy, complex business.)

Since then around the table at Council we’ve all seen newly elected people falling over their legal feet on numerous occasions.  And the goodwill in the past has been help them along, to get them productive in the job.

But if you were of the malicious mind or your politics precluded toleration of other viewpoints, you could easily target the newly elected person who breaches the Code in a minor matter.  For example, inadvertently forgets to enter a minor gift onto the Gift Register, makes a comment that is disrespectful of another elected member’s viewpoint, trips up in interpreting the conflict of interest provisions, and bingo, under the changes to the legislation now being proposed, three complaints and the electorate is faced with a by-election. 

Now it is easy to do as a new chum, to get things wrong.  And the right thing to do is not repeat the mistake.  This is where the Code of Conduct Panel could apply sufficient training/counselling, and if the elected member makes the same mistake again, and fails to understand the issue, then that is the time to say, That’s The First One.

And I believe we can go harder on sanctions for blatant breaches.

If you blatantly breach the Code, and I mean, blatantly found to be breaching various Standards, then a one month suspension from local government and or a fine up to 50 penalty units (current valued at $5,000) is hardly enough.  I’d argue for stronger sanction powers.

Here’s a scenario to consider:

A local government candidate is a member of a business group proposing a block of flats or a supermarket proposal, and stands to make a personal motza should the planning approval go through.  He/she has campaigned for it before the election and said they’d support it no matter what.  The business group funds an office for you to work from both during and after the election.  Once elected, the now Councillor continues to make denigrating public comments verbally in Council meetings and in written form on Facebook against anyone who opposes the development, including some pretty personal remarks about the professional qualifications of Council’s planning officers.  During the community consultation period, you flatly refuse to entertain any ideas for changes and you let your business group use the Council photocopier to print out sufficient leaflets to plaster the surrounding neighbourhood’s dunnies three times over.  When it comes to Council, any information that is contrary to the application is disregarded, and you stay in the room to vote for such a proposal to go ahead.  And when Council has to decide in the Closed Agenda any leasing requirements, you quietly let your mates know the state of the valuations so they can negotiate a better deal.

Apart from some obvious breaches of other bits of legislation, this sort of scenario just about knocks the current Code of Conduct out the door with a likely blatant breach of seven out of nine of the Standards.

A bit over the top?  More likely in New South Wales? 

Well think about these scenarios:

  • You’re a member of a political party that champions free speech and transparency.  Once elected you decide to deliberately and consistently leak to the press discussions by Council over planning matters, finances and generally controversial matters, despite being counselled and cautioned against such behaviour.  One day a staff matter arises when the General Manager reports on bullying and the legal and staff outcomes.  You leak the whole matter to the press because it would make a good story and then it is found out it was you who did it.
  • You’re a member of a sporting organisation who needs funding.  You get elected to Council and then proceed to stay in the room when funding proposals are discussed.  Prior to any Council decisions, you are seen wining and dining various other elected members in the corporate box of your sporting organisation, and ensuring that their faces figure prominently in any publicity material.  When a major funding proposal comes up, you still stay in the room and proceed to publically campaign for Council to approve funding. 
  • The Council gives the elected people a petrol card to cover travel in the course of their duties as Aldermen.  You use it to fill up both you and your mate’s 4WD to go on a holiday out in the bush.  You use the card to fill up the tank of the van you use for your own business.
  • You’re a member of a small but vocal group opposed to Coming Out Proud programs run by the local Council.  Once elected, you consistently make public statements that are outside the boundaries of fairness, courtesy and respect, and when asked to stop, refuse and repeat the behaviours a number of times.

Here are the Standards: you be the judge.

Standards of Conduct

Standard #1 – Principles and Values: You are expected to familiarise yourself with, and comply with both the letter and spirit of the Hobart City Council’s principles and values.

Standard #2 – No Bias in Decision-making: You must ensure that you bring an impartial and unprejudiced mind to all matters being decided upon by you in the course of your Council duties.

Standard #3 – Conflict of Interest: You are responsible to ensure that, when carrying out your public duty, you are not wrongfully influenced by other external interests you have or duties you owe. You must therefore, in all such dealings, put the interests of the community to which the Council is accountable foremost.

Standard #4 – Proper use of Office: You must not improperly use your position to gain an advantage or confer a disadvantage for yourself or anyone else. You must not conduct yourself in a manner which could bring the Council or the position of Alderman of the Council into disrepute.

Standard #5 – Proper use of Resources: You are expected to ensure that neither you nor others associated with you wrongfully benefit at the expense of the Council and its people, and thus are required to use Council property and resources strictly for the purposes of performing your role.

Standard #6 – Proper use of Information (& Confidentiality): You must not disclose, without consent, confidential information or other information which you have acquired as a result of your office at the Council and you must actively protect all confidential and other information of the Council which comes in to your possession or knowledge.

Standard #7 – Giving and Receiving of Gifts or Benefits: Consistent with Standards #3 and #4, you are expected not to personally and unjustly benefit from, nor be unduly influenced (or be perceived to be unduly influenced) in making decisions as part of your role with the Council as a result of financial inducements, gifts or entertainment or other benefits.

Standard #8 – Relationships with community and others: You are expected to treat your fellow Aldermen, members of the community and employees of the Council, with courtesy, fairness, dignity and respect in all dealings with them.

Standard #9 – Representation of Hobart City Council: You must ensure that when representing the Council you only do so within the ambit of your authority and you must ensure that there is no confusion as to when you are voicing your own opinion and the Council’s policy or decisions.

Authorised by Eva Ruzicka, 10 Congress Street, South Hobart


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