D-Day for local government in Tasmania

As the close of local government polls looms closer to 10am on Tuesday morning, so does D-Day for local government in Tasmania.  A bit dramatic?  No.  The Hon Peter Gutwein, Treasurer, Minister for Planning and Local Government intends to write to all Mayors once the polls are declared to start asking about reforms and how local government can take on more economic responsibilities. 

And he’s going to get it all wrong.

And worse, miss one of the best windows of opportunity for whole of government reform Tasmanians will ever likely support in current times.

What! you ask.  Well, he doesn’t like to use the “A” word, but if you’ve listened to him at the TCCI breakfast and the STCA AGM and a few other venues, you get the feeling that local government’s futures is going to get more complex because it’s the massive elephant in the room that no one wants to challenge, even if it is three more years to the next State election.  Resource sharing only goes so far.  We need different thinking.

Bendigo Pottery anyone?

This is what is getting me irritated about the level of conversation on government reform in Tasmania.  The Minister keeps asking how local government can contribute more to economic projects.  He talks about the State dropping payroll tax, land tax, etc to attract economic projects.  He wants local government to consider waiving rates and charges as well.  As a case in point, apparently the goats grazing at the Inveresk site in Launceston is getting him a tad upset.  And I am too given the amount of taxpayer money invested in the site, so whatever’s gone wrong there in the site’s inability to attract economic projects, it doesn’t need more money thrown at it, which is what the Minister wants to do, and local government to throw a few wads as well.

So if one of his solutions to fixing Tasmania’s economy is to start a race to the bottom with taxes, rates and charges in attempting to attract economic investment to Tasmania, hasn’t he learned any history?  Previous Lib/Lab governments have tried this, with no lasting success.  Bendigo Pottery upped and left once the corporate welfare tap was turned off, and they joined any number of businesses that desert this island when the economic tide turns.  More so since the global economy really got going.

And what would be the impact on local communities?

Doesn’t the Minister realise that local government raises rates and charges to actually pay for the services people use, which are used in the local locality, not for projects at the State level? 

Give him his due, looking from the outside he sees within the Dorset municipality the economic opportunity of six or eight sawmills that could be re-purposed for value-adding timber production.  He wants other Councils to think about what they identify in their own municipal areas to add to Tasmania’s economic success.  Nice thinking, but it’s limited.  Limited to how many are actually in the room contributing to the conversation.

And every time you ask him about his intentions, he just can’t seem to move his head away from keeping Tasmania in its current state of political infrastructure and refusing to consider grasping some innovation as well in political structural reform.  Suggest reform, and all he comments on is how bad amalgamation is.  There’s this image of a Minister’s thinking curled into a political foetal form.

So how does the Minister see the problem?

Okay.  My money is that it’s all in the mindset.  Public policy rule #1: If all you’ve got is a hammer, then every problem looks like a nail. 

If the only person setting the policy has got an economic rationalist philosophy, and experienced Tasmanian economic realities in Opposition, is influenced by Property Council lobbyists and suchlike and has inherited a healthy political yellow streak/set of scars caused by previous amalgamation failures, then perhaps the Minister isn’t able to really think about reform outside of his government’s political comfort zone. 

Perhaps it’s the fear of loss of government, of losing the levers of government after years in the political wilderness for the Liberal Party of the 20^th and 21^st century in Tasmania.  Every time a government got near (and here we’re also talking very late 19^th century) the ideas of local government reform (albeit in not very original terms), they either lost government or came so close as to have to form a coalition or found reform blocked in the Legislative Council and all that time spent arguing and drafting and lobbying wasted.

I’m not saying local government is that powerful.  Other factors play their larger part.  Yet what is constantly being threatened every time reform is being talked about is something the State government, whether Labor or Liberal, can’t comprehend or take into account or simply ignore every time reform is suggested.  (More on this later in some other blog.)

Reform is needed, but what sort – that’s the question.

What I’m trying to say now is that it’s ridiculous for a State the size of Tasmania to have twenty nine councils, each with their own infrastructure systems and people, and policy programs, when it’s clear from the water and sewerage debacle, it’s possible to have a single system for those functions which reasonably could be managed Statewide.  Times have changed so much from the isolation of the 19^th and early 20^th centuries for Tasmania’s communities.  Focus on what can be provided on a Statewide basis here.

And I’m not saying get rid of local government either.

I am saying, it’s time for the State to take on its constitutional responsibilities, and let local government get on with what it actually does really well – manage local things.  Community halls, parks, gardens, festivals, facilitating the interaction between local communities and State and Federal departments/politicians, sending through the messages when populations and needs change, so the levers of policy and finance can be adjusted accordingly.

Yes, there is a need for overarching management of infrastructure and policy, but at the ground level there is the need to for some sort of local body able to finetune the messages in meeting community changes and expectations.  That’s where local government can make a real difference. 

And to this extent, if the Hon. Minister Gutwein does anything of merit post the local government elections, it has to be getting all the Mayors and all the elected members of State and local government into one room, sign them all up to Chattam House Rules, and talk about really reforming governance of Tasmania.

Think about the value of a State government actually acting like one.

The Minister may be getting irritated about the Inveresk Rail site but there are bigger wastes of money going on right now all over the State.  It’s the problem of the State not yet having caught up with the 21^st century in sorting out what it must be doing, and taking back from local government all the cost-shifted responsibilities of the last two centuries. 

For example, what is the point of having a Department of State Growth if it is disconnected (which it effectively is) from the three regional growth lobbies (Cradle-Coast Authority, Northern Tasmania, Southern Tasmanian Councils) in forming policy and finding opportunities?  And not just economic ones. 

What is the point of asking Mayors in one by one, in isolation, to talk about economic opportunities within their own localities when other factors, social, environmental, just don’t make the cut, or they are so up their necks in the swamp they can’t see opportunities on the nearby shore? 

What is the point of Tasmania’s two major cities working on population growth strategies, and finding themselves having to ask to be at the table, to get data, to share information and work on policy, and then finding bureaucrats and State politicians are ignoring policy suggestions?

What is the point of the State looking away as more and more services and programs are cost-shifted to local government?  What is the point of asking local government to lower its rates and charges in the absence of a coherent statewide assessment of what is possible, or indeed in the absence of any cost-analysis or business case of the real costs of such a policy? 

Local government is fiercely protective of its local community.

I can just imagine the reception the Minister is going to get from individual Mayors when he calls them in post the election and presents his view of their future, and they are actually asked to lower the quality of life of their individual towns and hamlets.  I suspect most Mayors are thinking that it’s some other part of Tasmania that will bear the burden of economic sacrifice.  Perhaps the larger cities will get it in the neck, like they are still getting with the water and sewerage reform?  I’m sure that thought has crossed at least one rural Mayor’s mind on occasion.

Here’s the thing.  Lowering rates and charges on a Council by Council basis in an effort to attract economic opportunities to various municipalities – in effect, picking winners funded by ratepayers - will lead to worse than a race to the bottom for local communities in lowering the capacity to provide services.  It will lead to destructive competition and duplication, if not a perpetuation of the stupidity of rivalry between the North, the South, the North West.

Guess what might happen if instead of an economic race to the bottom, Tasmania’s elected representatives agreed to re-purpose each tier of government?

Would it not be better to say to local government, it’s okay.  Keep your local representatives (you may not need so many in this day and age of IT communications), keep your Mayors, keep your municipal boundaries and town and community halls.  Keep working on what makes your locality so special and attractive to people.  Indeed, you can actually de-amalgamate into township authorities if it makes it easier to devolve highly local responsibilities to smaller more local committees if it’s to your community’s advantage – business case notwithstanding.  (Okay, we’ll talk about allowances and staffing and budgets and insurances later – it’s the ideas we’re riffing on now.)

Because even if the State takes on roads, stormwater, water, sewerage, waste management and other services that can be provided on a Statewide basis, there is still great value in local government in its ability to facilitate and communicate between government and people at a very immediate and intimate level. 

And just because we do it one way now, it doesn’t mean that is the way it has to always be done in the future. For goodness sake, there is life beyond management by committee practices that have been in place since the 16^th century!

So yes, you can keep on raising rates and charges for identifiably agreed local services on agreed business-cases, and you’re happy for the State to take on its financial responsibilities for statewide economic development so there is no need for the Federal government to keep on manipulating the relationship between the pair of you.

And imagine, if we could we have that mature conversation, then yes, local government will more likely concede financial and legislative changes as the State takes on more responsibility.  After all, it happened in the years 1990 to 1993 in the first successful reform of local government since 1906, and again in the early naughties in sorting out financial charges between the State and local government over rating and valuation.

Ever thought about the value of synergy for Tasmania?

And what was the secret to the success of reforms that endure?  Rather than the Minister saying what he wants according to how he sees the world and expecting local government to agree, a top-down approach, it is more the case of the bottom up approach that succeeds.  Remember that comment about hammers and nails?  What would happen if we provided a whole box of tools for Ministers and Mayors to play with?  If you have all sorts of ways of seeing the world, problems would then take on different dimensions.

Here’s a suggestion.

What if the Minister decided to get all the Mayors into the room to talk about what economic development means?  Would 29 viewpoints plus his (and a few minders) result in solutions different from how he currently frames it? 

I’m not talking about involve the Local Government Association of Tasmania – it’s history and structure can often get in the way of constructive discussion – it’s so process driven.  And I’m not talking either about using the Premier’s Local Government Council – if that body were of value and treated with any seriousness by the State Government, we’d have had some decent reform discussion ages ago.

Let’s think bigger.

If the Minister got all the elected members into the same room (State and local), then what’s the chances they would all talk together about opportunities and ideas for the State, with the synergies of different viewpoints from around the State.  Especially if you made the rule that no Mayor could talk about their municipality, or Parliamentarian about their electorate (thus avoiding regionalism and pork-barrelling policy behaviour.

And because entry to any discussions would be with agreement of staying away from the gaze of Tasmania’s destructively parochial media, and with Chatham House Rules, and an iron rule of no media releases until there was final agreement on various ways forward, what opportunities and ideas are therefore more likely to gain oxygen? 

Either of these bottom up approaches would surely gain more political support, especially when that all-important electoral date rolls around, because we’d all be part of the solution, especially the bits that nobody likes but would make Tasmania more resilient in the long run?

Melville Street UTAS proposal: Questions that must be answered!

I’ve received some pretty concerned emails over the UTAS Melville Street proposal.  It’s clear that, despite have to declare a non-pecuniary interest, I strongly support tertiary education as a growth sector for Hobart.  (See earlier blogs.)  Yet in the interests of fairness, the rest of the Aldermen are being asked to set aside the City of Hobart’s Planning Scheme when it comes to zoning, use, heritage, density and height. 

Does the University’s case stack up?

Have a look at the reports (http://www.hobartcity.com.au/Council/Council_Meetings/Development_and_Environmental_Services_Committee, look at the reports for 20 October, 2014)

Think how you’d be responding to these planning questions Aldermen should be asking:

How does it compare and contrast to the area’s core existing built characteristics listed below?

The scale along the streets is mostly two – three storey buildings stepping up the slopes.

There are low level stepped awnings that provide effective shelter for pedestrians/shoppers.

The existing streetscapes are continuous streetscapes with lanes and slots that allow views back into the depth of the blocks and often through the blocks.

Buildings in the area have generally low scaled sky line views from opposite sides of streets.

The sense of building forms is one of stepping up the slopes at a human scale. 

There is a dominance of churches and spires that mark the whole of the area, as reference points and height markers and are also broadly viewed across the tops of buildings giving them a three-dimensional quality within the whole landscape.  The current proposal is higher (40.32metres) than the State Library building (14 stories).  Arguments that it compares to the Trinity Hill church ignore that fact that the site is meant to be a transition zone between the residential and core commercial zones of the city where a 12 metre height is the limit.

Looking from adjacent streets, there are well-scaled sky views across and around the site, even though while some of those views do have larger buildings in them they do not dominate the views.

The existing buildings are generally characterised as having an extensive variety of form, material, shape and heights.  They present as “fine-grained” compared to the development application.

Heritage

Does this proposal achieve conservation outcomes that could not otherwise be achieved if the proposal complied with the zoning and other controls in the Scheme?

Zone Objectives

Does the proposal satisfy the zone objectives?  In other words, is the use being proposed consistent with the planning scheme and existing uses of the area?

Does the proposal demonstrate that it does not have adverse impacts on surrounding properties through its design, interface, height, bulk, scale and use?

Precedent for future development applications

Does the granting of the discretion permanently shift the interpretation of discretion for these planning precincts for future developments?  In other words, set a precedent that is harder to argue against?

As the planning precincts call for mixed use, and given that the major use (student accommodation) is secondary in planning considerations, what precedent does this set for future interpretation of the planning scheme?  In other words, are strategic considerations in how the city is shaped to be set aside for one particular use?

Why can’t the proposal be re-designed to activate the street frontages with other retail and commercial functions of a small scale in order to maintain the city streetscape?

Strategic approach to affordable student housing

Given the numbers of students wanted in the area by UTAS (apparently students like to congregate), why has such a proposal, given the scale, bulk and height, not been proposed for the Sandy Bay Campus?  Earlier Management Plans for the Sandy Bay campus included student accommodation on the rugby field and yet this was never properly followed up.  Indeed, why not spend the $75M on student accommodation across the city as well as providing social hubs and connecting transport with the City’s three campuses?  There are many other public and private sites. 

Is the funding mix/guidelines the problem?  Is the University’s student housing strategy dictated to by the funding mix/guidelines or is it developed in accord with Hobart’s Strategic Plan and Planning Scheme?

Is the application consistent with Hobart as a human scale city?

And if we compare and contrast this development application against the Gehl Report’s recommendations* for maintaining a human scale city, how does it stack up?

How will the proposed height protect Hobart’s pleasant climate against strong winds?

Will approving the application create a defacto building height strategy?

Will approving the application cause a spread of high that  overtake the pleasant low, intimate city streetscape and affect climatic conditions negatively?

Is the present average building height of three to six stories in fact the optimum for Hobart to maintain its difference in a world where cities with high buildings are dark cities, where very little sunlight is allowed to reach the street level?

Will Hobart’s point of difference as a city of low rise and finely detailed city streetscapes be lost if this development application’s height and finishes fails to reflect older low rise city fabric?

Does the development application fit in with neighbouring buildings in terms of scale, building heights and relationship to surrounding public spaces?

 

*Hobart Public Spaces and Public Life 2010 (Gehl Architects, recommendations, page 106)

Not for us any of Oxford's gentle spires if Hobart is to become the UTAS city

UTAS Proposal for Melville Street

Oxford University, UK

Other entries on my blog have me on record as promoting Hobart as an education city, and particularly in favour of expansion of University activities in research, medicine, marine and oceanography and the like. 

As I’ve said, education at all levels is the most crucial tool to success in our western social and economic system, and for any other economic/social system that is predicated on human curiosity.  No education, no futures, as the inability to understand the environment around us and what makes it tick, to engage with changes that occur in how we order our societies, means a slide into superstition and mental neglect and downright environmental degradation.
And more so for women, as an educated woman is society’s principal change agent.  Witness the efforts of one young Pakistani teenager, Malala Yousafzai.[1]  For Tasmanian women, the right to an equal education has been a hard fought win, and to consider going to university as the norm is something that most women today don’t even consider and issue. 
As late as the 1970s for women to attend university was the exception, and if they did, it was for roles such as teaching, rarely medicine and other fields such as engineering or marine research. 
And as late as the 1970s, if you married you had to resign from the public sector.  When I first started working in the 1980s, it was considered a threat by senior nursing teaching staff to “proper” teaching by giving nurses a university qualification in addition to the practical training of their jobs.”
Once you teach women, and give them all the opportunities possible for education that they are capable of undertaking, you really start to get a progressive society that ends the divisiveness of today’s adversarial “boys” system. 
Too harsh?  Too feminist?  Consider the facts.  Under our current system, in Tasmania, 50% of our population is functionally illiterate.  No one was more blunt about this statistic and the outcomes that persist to affect Tasmania’s future than Professor Jonathan West in his best-selling, highly controversial article for the Griffith Review.[2]  It remains the most emailed about and contested article the Review has ever published. 
The consequences of this high rate of illiteracy are horrendous in terms of even menial jobs.  Today, even to lift a shovel in a road crew needs the capacity to comprehend the simplest of workplace health and safety requirements and these are written, not oral.
If you want to just about end teenage pregnancies and improve babies' mental and physical health, educate the girls.  Get them reading. Give them choices.
Less education means generational attitudes that predicate a downward slide in expectations.
And recent statistics continue to bear out the poor educational outcomes for Tasmania.  In August 2009, the apparent retention rate of full-time Tasmanian students from Year 10 to Year 12 was 64.1%, compared to 67.8% in 2005. 
In 2014 it was reported that the “(l)atest figures from the annual Report on Government Services show(s) the rate of full-time Tasmanian students going from Year 10 to Year 12 was 67 per cent, down from 70 per cent in 2011 and just over 70 per cent in 2010.”[3]  
Today, one year out from school, about 30% of Tasmania’s Year 12 graduates are studying at University.  That doesn’t mean that the other 70% is not studying for some other qualification, but it is a low percentage.  And even if one year out from school, about three quarters of those not continuing study are employed, that isn’t necessarily the best they can achieve.  At least some realise that more qualifications are worthwhile.  Five years out from school, 45% of Year 12 graduates are completing a non-school qualification and a further 23% are studying towards one.[4]
Let’s be honest, there’s still around 30 per cent not going forward to matriculate, and then after that, of those that do, around another 70 per cent fall out of the ranks when it comes to a tertiary education.  So who’d going to replace our teachers, medical professionals, statisticians, geologists, biologists, etc, etc, etc.?  And I ask this question in light of the baby boomer generation getting to retirement age and finding the generations behind them are just not making up the qualified experienced numbers any more.
And no, you can’t import from elsewhere – other countries are experiencing the same skills shortage issues.
I’ve also commented on how Tasmania was settled by accident.  The British took the island from the local people who roamed its mountains, plains and coastal areas by force and genocide, all so the French wouldn’t get possession during the Napoleonic wars.  And after that, it was attempt after failed attempt to get a sufficient economic reason to invest monies in the island, other than by subsidy of one form or another of various classes and investors.  Today, still, the island still cannot find its own economic feet and remains hostage to global economic changes and a cargo cult mentality at all levels of society.  Once it was said the US gets a cold, Australia gets pneumonia.  Today the global economy gets cold feet and Tasmania is plunged into recession, and usually this means lurching from recession to recession with very few historical bright spots ever recorded.
So today, being the end of the economic railway, we have to think differently.  We have to have economic and social capital that is mobile and nifty on its feet to accommodate the rate of change we all experience and have very little control over.  So you can see where I’m coming from when we argue Hobart needs to be an education and research city.
As you can see I’m passionately biased about education and research being top billing in Tasmania’s economic and social future – we’re the end of the railroad when it comes to commodity and manufacturing economies – we just can’t compete on freight distances to market, but this is the way we can.
In educating people – here’s where we have all the advantages in providing good if not excellent teaching and facilities for research, yet also a safe, beautiful, happy place in which to provide it.  So yes, I have a real interest in promoting education and related development.
Enter the University of Tasmania.  It’s changing its thinking about the rest of the world and reaching out to campuses around the world to get innovative education agreements in place.  However, for Tasmania’s tertiary sector it has to compete with the rest of Australia’s university campuses. 
For UTAS to get onto a national stage, it needs grow its student population to 20,000 students and house those students.  Moreover it needs to get international student numbers up.  The University is looking to spread affordable accommodation across its three campuses.  As you may have noticed, UTAS is getting into affordable student housing in a big way.

UTAS is currently attempting to get student housing built on the Melville Street Carpark site owned by Hobart City Council.  I’ve had to declare an interest in this development application by way of a non-pecuniary conflict of interest (being a UTAS student), so I couldn’t sit in on the debate, let alone be part of the decision.  This blog is by way of me somewhat anxiously observing from the sidelines both for the cause of education and the cause of good planning.

The development application

Development application for the University of Tasmania’s proposed development at Melville Street and voting on this at Council.  Have a look at this at: http://www.hobartcity.com.au/Council/Council_Meetings/Development_and_Environmental_Services_Committee and click on the agenda for 20 October.  It is Item 6.1.1 49 Melville Street, 46 & 64 Brisbane Street and 145, 147, 163, 165, 171-175 Elizabeth Street, Hobart – Redevelopment for flats, carparking, restaurant, university facilities and hydraulic infrastructure.  It’s a long read (including the supplementary reading) but check out the Executive Summary first. 

As you can see, “discretions” (the bit that gives a development wiggle room to fit the site) are for heritage, plot ratio, car parking, height and use.  The discretion for height is perhaps going to be most contentious, in that the limit is 12 metres and UTAS is asking for 40.32 metres.

Note that the Officer Recommendation is for Refusal.

From what I’ve heard, the application is running into problems as it well exceeds the limits of the City’s Planning Scheme.  What UTAS is asking for will create a large mass of building with four linked towers at 15 levels, which exceed the existing heights in the area.  In effect, lifting something like the State Library building and putting it down on the site, as one person commented.

For video run through of the site, go to: http://www.abc.net.au/news/2014-10-20/university-housing-development-approval-stalls/5828418

So what is best for the city?

Okay.  Now to get UTAS off the Sandy Bay Campus and into the City satisfies a widely held desire around the table to re-invigorate the City.  The Medical Precinct and the Arts Precincts are two examples of where Hobart’s Aldermen have supported this.  And love or hate the architecture of the Menzies Centre (personally, I love the design of both buildings), both buildings and the activities within them have bought people into the City and circulated them around.
The Melville Street carpark has long been a site of heated conversation for development.  A previous Rundle government wanted to put a transport hub (read bus exchange) there; the Council went through an EOI process to get commercial development there (it fell over due to there being too many Chiefs in the decision process) and now UTAS want to put student accommodation and related activities there.  I’ve supported this as people means society and more people in an area means revitalisation through social and economic benefits.
And it is important to get UTAS on the site because it will market the accommodation to international students, and that will financially benefit the University.  It may also keep fees down and ensure the provision of better services and amenities to its students.
So you see why I’m a champion of the University.  And I’m not alone in this around the table at Council or in the wider community.
But do we do so at the expense of the style of how Hobart has developed?
How do we accommodate the style of buildings that reflect colonial and post colonial architecture, the Victorian style shop fronts, the genteel heights of early twentieth century prosperity with twenty first century architectural statements?  Can we live with keeping the shop fronts and massing large buildings behind them?
Do we accept that if Hobart is to get the most from a future predicated on education and research, that it will lose its people scale streetscapes when attempting to accommodate student housing?
Do we accept that the City of Hobart Planning Scheme, developed over a long period taking into account the existing and desirable uses of various precincts in the city should be set aside for this development application?  And if we do this for this site, what about the rest of the city? 
Do we accept that the 12 metre height rule suited the economic development height of other centuries, that buildings into the twenty first century should be allowed to scale up in both height and mass to accommodate new uses in the city?
Or is our city mature enough to enter the sorts of building heights other cities take as the norm?
And given the scale of existing heritage-listed buildings, at what point do we say a building is heritage or is a new type of heritage?
What is being proposed is definitely different from "Westella", the Congregational Church and the CWA Shop that sits in the row of little shops on Elizabeth Street.
There will be another attempt to resolve the planning differences between UTAS and the Council before next Monday.  It's in the best interests of UTAS to come to some sort of accommodation, as I understand the development timelines are getting a mite crucial in terms of meeting Federal funding timelines. 
However, if the application is refused, it raises the question of where else in the City 433 students can be cheaply accommodated.  It certainly is making folks think about just how serious we are in developing Hobart as a University city.

---

[1] See http://en.wikipedia.org/wiki/Malala_Yousafzai

[2] See https://griffithreview.com/articles/obstacles-to-progress/

[3][3] See http://www.themercury.com.au/news/tasmania/tassie-education-system-in-crisis-as-year-12-retention-rates-hit-new-low/story-fnj4f7k1-1226812501430

[4] See http://www.abs.gov.au/ausstats/abs@.nsf/mf/4261.6 28 July 2014, downloaded 20 October 2014

Conflict of interest and bias in decision making

And this is where the rubber hits the road in so many of those allegations of corrupt local government practice.  Who has a conflict of interest?  And how is it judged?

Can I say to anyone who is elected to local government that this is one of the most crucial parts of your role that you must get right at all times?

This is not a time for grey areas or angels polka-dotting on pinheads of needles.  Either you have a conflict or you don’t, and you’ll have to prove it within the confines of the rules if called on to do so. 

And neither can you stay in the room in the audience pit “just to listen”.  This is one of those black and white areas where you declare an interest and then leave the room.

And you can’t say, I didn’t know, because the Act uses those catch-all words “is aware or ought to be aware”.

Why am I writing on this topic? 

A perusal of the website Tasmanian Times finds a veritable litter of conflict and bias allegations at all levels of government.

Local government is particularly prone to these, if the articles on various Councils are any indication.

So just this once, it would be good to outline some thinking on this.

And what better way, than by a messy personal example.

To have a conflict or to not have a conflict...

I have to make a judgement call on whether I have a conflict of interest in sitting on the Development and Environment Services Committee for a development application for the University of Tasmania’s proposed development at Melville Street and voting on this at Council.

Conflict is the actual act, bias is the perception of it, although both a closely related.  The legal bit from the Local Government Act 1993 is listed out at the end, along with the relevant extracts from the Code of Conduct.  Here are the web links:

Local Government Act 1993: http://www.thelaw.tas.gov.au/tocview/index.w3p;cond=;doc_id=95%2B%2B1993%2BAT%40EN%2B20100323100000;histon=;prompt=;rec=;term=

Code of Conduct: click on http://www.hobartcity.com.au/Council/Aldermen  and download the .pdf for the Code of Conduct.

So, back to why I am writing on it.  Firstly, my blog and other websites identify me as a student at the University.  I’ve received a financial scholarship (now finished) yet continue to be enrolled.  I’m on record as promoting Hobart as an education city, and particularly in favour of expansion of University activities in research, medicine, marine and oceanography and the like. 

For me, education at all levels is the most crucial tool to success in our western social and economic system.  No education, no futures.  And more so for women, as an educated woman is society’s principal change agent.  In Tasmania, 50% of its population is functionally illiterate.  If we’re to cope with the modern world, education is so, so important to provide to everyone. 

As you can see I’m passionately biased about education and research being top billing in Tasmania’s economic and social future – we’re the end of the railroad when it comes to commodity and manufacturing economies – we just can’t compete, but this is the way we can.

But educating people – here’s where we have all the advantages in providing good if not excellent teaching and facilities for research, yet also a safe, beautiful, happy place in which to provide it.  So yes, I have a real interest in promoting UTAS and in its development.

While I received the scholarship, I declared an interest in development decisions relating to the University, as there was a clear financial interest between myself and it, and that relationship was not shared by a substantial portion of the City’s electors (5% or 1000 people).  The scholarship finally ceased early this year, although there was a period of 12 months when I took medical leave of absence from my university activities and received no stipend.

The development application

The judgement call today is on whether I have a conflict in sitting on the Development and Environment Services Committee for a development application for the University of Tasmania’s proposed development at Melville Street and voting on this at Council.  Have a look at this at: http://www.hobartcity.com.au/Council/Council_Meetings/Development_and_Environmental_Services_Committee and click on the agenda for 20 October.  It is Item 6.1.1 49 Melville Street, 46 & 64 Brisbane Street and 145, 147, 163, 165, 171-175 Elizabeth Street, Hobart – Redevelopment for flats, carparking, restaurant, university facilities and hydraulic infrastructure.  It’s a long read (including the supplementary reading) but check out the Executive Summary first. 

Note that the Officer Recommendation is for Refusal.

I’ll take you through the decision process as an example of resolving a conflict of interest, not the development decision-making process (that’s way different).

Okay.  Now to get UTAS off the Sandy Bay Campus and into the City satisfies a widely held desire around the table to re-invigorate the City.  The Medical Precinct and the Arts Precincts are two examples of where Hobart’s Aldermen have supported this.  And love or hate the architecture of the Menzies Centre (personally, I love the design of both buildings), it is bought people into the City and circulates them around.

The Melville Street carpark has long been a site of heated conversation for development.  A previous Rundle government wanted to put a transport hub (read bus exchange) there; the Council went through an EOI process to get commercial development there (it fell over due to there being too many Chiefs in the decision process) and now UTAS want to put student accommodation and related activities there.  I’ve supported this as people means society and more people in an area means revitalisation through social and economic benefits.

And it is important to get UTAS on the site because it will market the accommodation to international students, and that will financially benefit the University.  It may also keep fees down and ensure the provision of better services and amenities to its students.

So you see why I’m a champion of the University.  And I’m not alone in this around the table at Council or in the wider community.

The question is, do I have a conflict of interest? 

And if I do, should I leave the room and not take part in any decision making?  This is in fact a two part decision.  Do I have a conflict?  If no, is there a “reasonable man” test for a perception of conflict and bias?

The rule is this:

A councillor or member has an interest in a matter if the councillor or member or a close associate would, if the matter were decided in a particular manner, receive, have an expectation of receiving or be likely to receive a pecuniary benefit or pecuniary detriment. [S.49(1)]

So do I receive a benefit if the UTAS application is approved?  As a student, one might say no because I’ll get no accommodation or carparking there, not being an international student.  I may however benefit from the likely lesser fees if the site is a good earner for UTAS or for that matter, increase if the business plan doesn’t work and the university has to jack up fees to cover the loss.  Further, are there other tests I need to look at?

This rule doesn’t apply if the benefit or detriment is one received in common with all or a substantial proportion of the electors of the municipal area [S.52(1)(a)], where a substantial proportion of the electors means at least 5% or 1 000 electors, whichever is the lesser [S.52(1A)].  So, the question, how many electors of Hobart City Council are university students?  One website advised around 9000 students for the Hobart Campus, and even allowing for a number living outside the municipality, this tests would appear to be satisfied, assuming those living or registered as “occupiers” are on the Rolls for Hobart number greater than 1000.  I think common sense would apply here but I can’t quantify the numbers and in a judicial test of this, I’d have to.

Neither does it apply if in relation to the consideration of an application or request for approval, authorisation, licence, permit, exemption or other right under this or any other Act, the extent of the interest of the councillor, member or close associate is no greater than that of any other member of the public [S.52(1)(c)].  So in meeting this test, is my interest no greater than any other member of the public?  Okay, interest in getting a good education is fairly widespread in Hobart, and having access to an education is important.  However, the service will not be for Hobart occupants – the building will service international students.

Neither does it apply because the pecuniary interest results from goods or services (that) are supplied in the same manner and subject to the same terms and conditions as apply to members of the public [S.52 (2)(b)].  The presumption is that any member of the public as in the electors of Hobart or wider Tasmania or the world will have access to the goods and services on the same terms and conditions.  I’m not sure this is the case, so it’s getting a bit muddy.

And finally, it does not apply if the matter relates to planning and development issues that apply throughout the municipal area and do not result in any particular benefit or detriment to the councillor or member or close associate that is no greater than any member of the public [S.52(2)(e)]  Well, supply of international student house and all the surrounding social and economic fallout may well be of equal particular benefit or detriment to members  of the public, but I’m a university student and the particular benefit or detriment is likely to be more specific.

This one is a bit knife-edge as to whether I have a conflict of interest.  Some have said not, others have interpreted it otherwise when I’ve discussed it with them.  So here is where we apply the Code of Conduct, in particular the Standards relating to bias and conflict.

Standard of Conduct #3 applies predominantly to actual or potential conflicts of interest which are non-pecuniary interests, in respect of which conflicts it is open to Council to determine the rules which apply to their management.

It also should be noted that, given the nature of public office for elected officials, the management of mere perceptions of conflict of interest are also important for the sake of the integrity of the Council and its Aldermen and employees.

However, unless a perceived conflict of interest relates to what is in reality, or becomes, a potential or an actual conflict of interest, then it will largely be a matter of managing those perceptions and possibly may instead be a contributor to allegations of bias.

So in my case, have been a long term university student and one who has benefitted from a Scholarship, it may be that a mere perception of a conflict of interest can arise, even if it is a misguided perception.  As such it may form sufficient foundation for a person to conclude that an ‘interest’ of an Alderman may have influenced me in the exercise of my role when Council acts as a planning authority.  Especially if I enter the debate and exercise my vote when Council acts as a planning authority; more so if I’m voting to overturn qualified officer advice for refusal.  If I vote for a favourable UTAS outcome, how well, how does it look?

Advice to Aldermen is clear.  In this regard, perceptions of a conflict of interest can be as important as actual conflicts of interest.

And the advice has always been, that if you think you may have a conflict, whether pecuniary or non-pecuniary, whether actual or perceived, that may lead to allegations of bias, leave the room.  It may well be a crucial vote on a matter dear to you, and if this is the case, it becomes even more important that ethical considerations rule, no matter the pain of not getting the outcome wanted.


POSTSCRIPT
In the end, I declared an interest at the Committee, advising that while there was no actual pecuniary conflict, there was a perception of a non-pecuniary conflict and possible perception of bias, due to my position on promoting UTAS and being a current UTAS student.
I also declared an interest in the other item on the Agenda dealing with the Campbell Street site, for the same reasons.

 

 

All the legal bits

PART 5 - Interests

47A.

48. Declaration of interest by councillor

(1) A councillor must not participate at any meeting of a council, council committee, special committee, controlling authority, single authority or joint authority in any discussion, nor vote on any matter, in respect of which the councillor–

(a) has an interest; or

(b) is aware or ought to be aware that a close associate has an interest.

Penalty:

Fine not exceeding 20 penalty units.

(2) A councillor must declare any interest in a matter before any discussion on that matter commences.

Penalty:

Fine not exceeding 50 penalty units.

(3) On declaring an interest, the councillor is to leave the room in which the meeting is being held.

Penalty:

Fine not exceeding 20 penalty units.

(4) The councillor, by notice in writing, is to advise the general manager of the details of any interest declared under this section within 7 days of so declaring.

Penalty:

Fine not exceeding 20 penalty units.

(5) The general manager is to –

(a) ensure that the declaration of interest is recorded in the minutes of the meeting at which it is made; and

(b) record the details of any interest declared in the register of interests kept under section 54.

(6) In addition to any penalty imposed under this section, a court may make an order –

(a) barring the councillor from nominating as a candidate at any election for a period not exceeding 7 years; and

(b) dismissing the councillor from office.

48A. Declaration of interest by member

(1) At any meeting of a special committee or controlling authority, or the board of a single authority or joint authority, a member must not participate in any discussion, or vote on any matter, in respect of which the member–

(a) has an interest; or

(b) is aware or ought to be aware that a close associate has an interest.

Penalty:

Fine not exceeding 20 penalty units.

(2) A member must declare any interest in a matter before any discussion on that matter commences.

Penalty:

Fine not exceeding 50 penalty units.

(3) On declaring an interest, the member is to leave the room in which the meeting is being held.

Penalty:

Fine not exceeding 20 penalty units.

(4) A member of a special committee or controlling authority, by notice in writing, is to advise the general manager of the details of any interest declared under this section within 7 days of that declaration.

Penalty:

Fine not exceeding 20 penalty units.

(5) A member of a board of a single authority or joint authority, by notice in writing, is to advise the chief executive officer of that authority of the details of any interest declared under this section within 7 days of that declaration.

Penalty:

Fine not exceeding 20 penalty units.

(6) The general manager or chief executive officer is to –

(a) ensure that the declaration of interest is recorded in the minutes of the meeting at which it is made; and

(b) record the details of any declared interest in the register of interests kept under section 53B or 54A.

49. Having an interest

(1) A councillor or member has an interest in a matter if the councillor or member or a close associate would, if the matter were decided in a particular manner, receive, have an expectation of receiving or be likely to receive a pecuniary benefit or pecuniary detriment.

(2) ...........................

50...........................

51.Close associate

For the purposes of this Part, a person is a close associate of a councillor or member if that person is–

(a) a body corporate of which the councillor or member is a director or a member of the governing body; or

(b) a proprietary company in which the councillor or member is a shareholder; or

(c) a public company in which the councillor or member is directly or indirectly a substantial shareholder; or

(d) a beneficiary under a trust or an object of a discretionary trust of which the councillor or member is a trustee; or

(e) a business partner of the councillor or member; or

(f) the employer or an employee of the councillor or member; or

(g) a person from whom the councillor or member has received, or might reasonably be expected to receive, a fee, commission or other reward for providing professional or other services in relation to a matter being dealt with or to be dealt with by the council, council committee, special committee, controlling authority, single authority or joint authority; or

(h) the spouse or partner of the councillor, member, councillor's son or daughter or member's son or daughter; or

(i) the son, daughter, brother, sister, mother or father of the councillor or member or of their spouse or partner.

52. Non-application of Part

(1) This Part does not apply to a councillor, member or close associate who has any pecuniary interest in any matter if–

(a) the benefit or detriment is one received in common with all or a substantial proportion of the electors of the municipal area; or

(b) the matter relates to an insurance policy or an indemnity policy being considered or taken out by the council, single authority or joint authority to insure or indemnify councillors or members or their spouses or partners unless the matter relates to, or is a claim made by, the councillor or member; or

(c) in relation to the consideration of an application or request for approval, authorisation, licence, permit, exemption or other right under this or any other Act, the extent of the interest of the councillor, member or close associate is no greater than that of any other member of the public; or

(ca) the matter relates to the making of a rate or charge under Part 9; or

(d) the matter relates to any allowances or expenses payable to councillors or members; or

(e) the interest is a beneficial interest in shares of a company or other body where the total nominal value of those shares does not exceed whichever is the lesser of the following amounts:

(i) an amount of $10 000;

(ii) an amount which is 1% of the total nominal value of the issued share capital of the company or body.

(1A) For the purpose of subsection (1) –

substantial proportion of the electors means at least 5% or 1 000 electors, whichever is the lesser.

(2) This Part does not apply to a councillor, member or close associate who has any pecuniary interest in any matter only because –

(a) the matter involves –

(i) expenditure from money belonging to, or held by, a council, council committee, special committee, controlling authority, single authority or joint authority and the councillor or member contributes to the money as a ratepayer; or

(ii) the fixing of fees by a council, single authority or joint authority; or

(iii) the terms and conditions on which the right to participate in the supply of goods and services is offered to members of the public; or

(b) the councillor or member or close associate is a person to whom goods or services are supplied in the same manner and subject to the same terms and conditions as apply to members of the public; or

(c) the councillor or member or close associate provides services of a professional nature to another person who is the subject of, or is involved in, the matter; or

(d) the councillor or member or close associate is a member of a body, club, union or other non-profit organisation if –

(i) a personal benefit or detriment to the councillor, member or close associate, or the spouse or partner of the councillor, member or close associate, is not involved; and

(ii) the councillor, member or close associate is not an office-bearer of that body, club, union or organisation; or

(da) the councillor, member or close associate is appointed or nominated as a member of a body by the council; or

(e) the matter relates to planning and development issues that apply throughout the municipal area and do not result in any particular benefit or detriment to the councillor or member or close associate that is no greater than any member of the public; or

(f) the councillor or member or close associate is an employee in the service of the Crown or of a body established under any Act for a public purpose; or

(g) the councillor or member or close associate is a candidate for election as councillor, mayor or deputy mayor; or

(h) the councillor, member or close associate is a member of a body established by a council.

(3) A council, at a meeting open to the public, may decide to exempt a councillor or member from this Part for a period not exceeding 12 months if the councillor or member has a potential pecuniary interest in a matter only because of being appointed or nominated as a councillor or member due to expertise arising from direct involvement in an activity that gives rise to that potential pecuniary interest.

53. Notification of interest

(1) Any person who considers that a councillor or member has an interest in a matter to be, or being, dealt with by a council, council committee, special committee or controlling authority may notify the general manager in writing of that interest.

(2) On receipt of a notification, the general manager is to advise –

(a) the mayor or chairperson; and

(b) the councillor or member who is the subject of the notification.

53A. Notification of interest of member

(1) Any person who considers that a member of a board of a single authority or joint authority has an interest in a matter to be, or being, dealt with by a single authority or joint authority may notify the chief executive officer of that authority in writing of that interest.

(2) On receipt of a notification, the chief executive officer is to advise –

(a) the chairperson; and

(b) the member who is the subject of the notification.

53B. Register of interests of board members

(1) The chief executive officer of a single authority or joint authority is to keep a register of interests of members of the board of that authority advised under section 48A(5).

(2) A register kept under this section is exempt from the provisions of the Freedom of Information Act 1991.

54. Register of interests of councillors

(1) The general manager is to keep a register of interests of councillors.

(2) A person, by notice in writing to the general manager, may apply to inspect the register of interests.

(3) On receipt of an application, the general manager is to allow the applicant to inspect the register of interests.

(4) .........................

(5) .........................

54A. Register of interests of members

(1) The general manager is to keep a register of interests of members of a special committee or controlling authority.

(2) A councillor of a council that has established a special committee or controlling authority may inspect a register of interests kept under this section.

(3) A register kept under this section is exempt from the provisions of the Freedom of Information Act 1991.

55. Interests of employees and general manager

(1) An employee of a council must notify the general manager, or in the case of the general manager the mayor, in writing of having an interest as referred to in section 49 in any matter in respect of which he or she–

(a) provides advice to the council or council committee; or

(b) makes a decision or determination; or

(c) makes a recommendation to the council or council committee.

Penalty:

Fine not exceeding 50 penalty units.

(1A) Section 51 applies as if a reference to a councillor were a reference to an employee or a general manager.

(2) The general manager is to –

(a) advise the council of the existence of any interest notified under subsection (1); and

(b) keep a register of any such interest.

(3) Any register kept under subsection (2)(b) is exempt from the provisions of the Freedom of Information Act 1991.

55A. Interests of employees of authorities

(1) An employee of a single authority or joint authority must notify the chief executive officer in writing, or the chief executive officer of a single authority or joint authority must notify the board of management of that authority in writing, of having an interest as referred to in section 49 in any matter in respect of which he or she –

(a) provides advice to that authority; or

(b) makes a decision or determination; or

(c) makes a recommendation to that authority.

Penalty:

Fine not exceeding 50 penalty units.

(2) Section 51 applies as if a reference to a councillor were a reference to an employee or a chief executive officer of a single authority or joint authority.

(3) The chief executive officer of a single authority or joint authority is to –

(a) advise the board of management of that authority of the existence of any interest notified under subsection (1); and

(b) keep a register of any such interest.

(4) Any register kept under subsection (3)(b) is exempt from the provisions of the Freedom of Information Act 1991.

56.Validity of decisions

Any proceedings or decisions of a council, council committee, special committee, controlling authority, single authority or joint authority are not invalid by reason only that at the time the proceedings were held or the decisions were made, a councillor or member–

(a) had not declared an interest as required by section 48 or 48A; or

(b) had voted on a matter in respect of which the councillor or member had not declared such an interest.

 

Code of Conduct Excerpt

 

2 No Bias in Decision-making

Standard of Conduct #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.

2.1 Key Concepts:

The rules of procedural fairness require that a decision-maker in public office should be able to decide the issues pertaining to each decision free from any bias or prejudgment.  The test for determining whether a person is disqualified by reason of the appearance of bias is whether a fair-minded, lay observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question which must be decided (Johnson v Johnson [2000] HCA 48 at paragraph 11). Specifically, the case of R v West Coast Council; ex parte Strahan Motor Inn [1995] TASSC 47 (at paragraph 30) tells us that the political and legislative duties of elected members of Council require that:

...objectors or supporters be heard by members of council who are capable of being persuaded. The legislature could not have intended to have a hearing before a body who has already made a decision which is irreversible. The party alleging disqualifying bias must establish that there is a prejudgment of the matter, in fact, to the extent that any representations at variance with the view, which has been adopted, would be futile. Statements by individual members of council while they may very well give rise to an appearance of bias will not satisfy the test unless the court concludes that they are the expression of a final opinion on the matter, which cannot be dislodged.

You must therefore ensure that you bring an open mind to all matters being decided upon by you in the course of your duties. This does not mean that an Alderman is automatically disqualified purely for having held a public view on a matter which is the subject of a Council decision, as also explained in the West Coast Council case referred to above (at paragraph 33):

Councillors may be assumed to hold and to express views on a variety of matters relevant to the exercise of the functions of the council. Expressing such views is part of the electoral process. Provided that expressions of opinion do not go so far as to evince an intention to exercise a discretion conferred by statute without regard to the terms in which it is conferred or without being prepared to listen to any contrary argument, it ought not be taken to disqualify the councillor from participating in a relevant decision making process.

The HCC regards this as an ethical, and not merely legal, expectation.

It is within this area that Aldermen must be aware of the importance of perceptions of conflict of interest. Where actual conflicts of interest arise, Standard #3 will also apply. However, where a mere perception of such a conflict of interest arises, even if a misguided perception, this may form sufficient foundation for a person to conclude that an ‘interest’ of an Alderman may have influenced him or her in the exercise of a duty. In this regard, perceptions of a conflict of interest can be as important as actual conflicts of interest.

 

3 Conflicts of Interest

Standard of Conduct #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 that you have, or duties that you owe. You must therefore, in all such dealings, put the interests of the community to which the HCC is accountable foremost.

3.1 Key Concepts:

An actual conflict of interest exists if:

(a) you have a specific duty relating to your Council role (e.g. to participate in the making of a specific decision); and

(b) you have an interest or owe a duty external to your Council duties which could reasonably be expected to conflict with the specific duty in question relating to your Council role.

By contrast, a potential conflict of interest exists when you have or owe an external interest or duty which does not presently conflict with, but which in view of the types of decisions in which you participate might be expected to give rise to a conflict with your duties in the normal course of your office with Council.

An actual, potential or perceived conflict of interest can further be divided into two types:

Pecuniary Interest

Where a member of Council has a direct or indirect financial interest in a matter to be considered by Council (i.e. one in which there is a reasonable likelihood or expectation of an appreciable financial loss or gain).

Non-pecuniary Interest

Where a Councillor has some other conflicting private or personal interest (or duty) in a matter that does not amount to a pecuniary interest.

Part 5 of the Local Government Act 1993 deals with situations where a pecuniary interest exists. The onus is on Aldermen to identify where a pecuniary interest, to which no statutory exemption applies, exists; declare that interest; and to leave the meeting whilst that item is discussed and decided.

This Standard of Conduct #3 therefore applies predominantly to actual or potential conflicts of interest which are non-pecuniary interests, in respect of which conflicts it is open to Council to determine the rules which apply to their management.

It also should be noted that, given the nature of public office for elected officials, the management of mere perceptions of conflict of interest are also important for the sake of the integrity of the Council and its Aldermen and employees. However, unless a perceived conflict of interest relates to what is in reality, or becomes, a potential or an actual conflict of interest, then it will largely be a matter of managing those perceptions and possibly may instead be a contributor to allegations of bias (see Standard #2).

Finally, the onus is on you to identify a conflict of interest, whether perceived or real, and take the appropriate action to resolve the conflict in favour of your public duty.

3.2 What is expected of you?

As an Alderman of the HCC, 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, strive to openly and honestly put the interests of the community to which the HCC is accountable foremost. This requires that you observe the following principles:

(a) you should exercise reasonable judgment to decide if circumstances have arisen which may place you in a potential or actual conflict of interest situation;

(b) you should seek to remove yourself from positions of conflict of interest as far as reasonably possible and so should resolve in favour of the responsibilities of your public office all conflicts between your Council duties and responsibilities and any other private or personal (including business) duties or interests you have elsewhere, including clubs, memberships or affiliations;

(c) you should adhere to principles of transparency and honesty and therefore always declare actual or potential conflicts of interest at any meeting of Council and at any working group or any meeting of an outside body to which you are appointed or nominated by the Council, and abide by the rules, policies and law to adequately and appropriately deal with any conflicts;

(d) you should act in good faith and exercise reasonable judgment, to determine whether the actual or potential conflict of interest is so material that it demands one or more of the following actions in addition to the expectations set out in paragraphs (a) – (c) above, namely that:

(i) you state your views on the matter for discussion or decision but abstain from participating in any Council discussion on the relevant matter;

(ii) in addition you refrain from participating in any Council decision on the relevant matter; or

(iii) you remove yourself physically from any Council discussion and remain out of the room during the decision on the relevant matter.

(e) if in doubt as to whether circumstances might amount or lead to an actual or potential conflict of interest or whether the conflict is material, you should contact the General Manager to help resolve your course of action and to resolve any conflict or incompatibility between your private or personal interests and the impartial performance of your public or professional duties; and

(f) Aldermen are expected to act in good faith in the interests of advancing and preserving the good standing and reputation of the Council and its Aldermen, and the preservation of the resources of Hobart City Council, by attempting to resolve all disputes relating to allegations of conflict of interest, through:

(i) attempting to resolve the dispute first with the assistance of the Lord Mayor, or, if the allegations involve the Lord Mayor, then with the assistance of the Deputy Lord Mayor or another suitable Alderman, as the case may require; or

(ii) if such resolution of the dispute fails, then through entering in to a formal mediation with the assistance of a recognised mediator; and

(iii) resort to the Code of Conduct Panel or the Local Government Association of Tasmania Standards Panel to be regarded strictly as a last resort.

3.3 Supporting example:

Remember, as a key question, when asking yourself whether you have a conflict of interest, you should ask yourself whether you are, or may be, inappropriately influenced by other external interests you have or duties you owe in making the relevant Council decision. As examples only, consider this question in the following

contexts:

• Under the appropriate delegation, if you sit on a tender committee or you are part of a decision-making process on behalf of the HCC, to select a contractor and place the contract with, say, a supplier of goods or services to the HCC, it would be an unacceptable conflict of interest for you to place the contract with, say, a family member of yours or business contact without declaring this connection, and either removing yourself from the process for selection or, if you are required to continue to participate in the process, then strictly following the applicable HCC tendering or other relevant procedures for the selection of the contractor.

• If a decision is before Council in which you have a personal (non-pecuniary) interest because it will assist a not-for-profit organisation of which you, or a family member, are a member (but not a director which would be a conflict of interest), then it is required that you clearly declare the nature of your interest but it is unlikely to be so material as to exclude you from discussion or decision.

• In the previous scenario, it becomes even less likely that you have a conflict of interest, for instance, the longer it is since you had formal involvement with the other organisation, although it is entirely a matter of looking at all of the surrounding circumstances; e.g. after leaving it, were you then made a life member and a patron and continue to be consulted by those in control of the organisation? If so, the likelihood of this giving rise to a conflict of interest is increased.

• Further, if Council’s decision is, in such a case, likely to assure the survival of that not-for-profit organisation, and you are not only still a member but also one of the founders, and it might otherwise be expected that without Council’s decision the organisation will be wound up, then your conflict of interest is much more material and you ought to consider at least abstaining from the vote if not the discussion.

3.4 Supporting material:

Local Government Act 1993 - Part 5

Local Government (General) Regulations 2005 - Section 22A(a)

 

Authorised by Eva Ruzicka, 10 Congress Street, South Hobart