Local Government Amendment Bill 2024
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Hon Tjorn Sibma; Hon Steve Martin; Hon Dr Brad Pettitt; Hon Dr Steve Thomas; Hon Neil Thomson; Hon Dr Brian Walker
LOCAL GOVERNMENT AMENDMENT BILL 2024
Second Reading
HON DR STEVE THOMAS (South West) [7.25 pm]: I put myself down to talk about the Local Government Amendment Bill 2024 because discussion about local government always intrigues me, particularly when state Parliament is interfering with local government. I think it is a hilarious area to get into. I think there are a few basic principles that we should address as part of this process. The first is probably as simple as this: does the Parliament actually believe in local governments’ independence to make their own decisions? It is a really good question to try to address philosophically. For the most part, state governments of both persuasions have come along and used local government as the proverbial whipping boy for political intrigue. I think it is hilarious. We now have, in my view, another version of the same thing. This is the latest state government version of playing around with local government. I have to say, quite frequently, state governments —
Hon Darren West interjected.
Hon Dr STEVE THOMAS: Sorry, money?
Hon Darren West: State governments put a lot of money into it.
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Hon Dr STEVE THOMAS: It has taken up some money going through local government, but it takes a lot of money to run a state government, as well, Hon Darren West. We sit here and have very longwinded debates and discuss things to try to improve the outcomes for the people of Western Australia, as I imagine local governments generally try to do for their own constituencies, but local government is a funny beast. We like to pick on it. We like to take advantage of local government. I have never been in local government. I have to say, for the most part, people like to bag out their local governments in the same way they like to not infrequently bag out the state government and their local parliamentarians.
Hon Darren West: Will you take an interjection?
Hon Dr STEVE THOMAS: Yes, sure.
Hon Darren West: The minute you say, “We’ll amalgamate these local governments, then, seeing as they’re so bad”, they don’t want that. They’re happy to bag them out but want to keep them as they are.
Hon Dr STEVE THOMAS: That is exactly right. You make a really good point, Hon Darren West. I do not believe I have said that before. That should be in the parliamentary bingo—“You make a good point, Hon Darren West”!
Hon Martin Aldridge: Who is running the parliamentary bingo?
Hon Dr STEVE THOMAS: There might be one being organised.
Hon Martin Aldridge: It’s on the printer. There is one.
Hon Dr STEVE THOMAS: Let us not go there, because that was not a part of it, but somebody should be picking that one up. I do not think it is a statement I have made in the Parliament before, and I have been around a while, so there we go. But Hon Darren West makes a very good point, particularly in regional areas.
We should start with the basics, and that is that simply redrawing the boundaries is a stupid way to try to reform local government. I have always said that. I am on the record as saying that in this place on numerous occasions with local government bills that have come here in the past. Rolling out a map and saying, “I don’t like the current boundaries, let’s get the texta out and draw new ones”, is a nonsense for two reasons. The first is that in the built-up areas, the metropolitan south west in particular, that is not the issue people have. People have issue with the performance of their local government, not where the boundaries are. Secondly, in regional areas, particularly in extensive regional areas, local governments that have been there for a long time carry a great degree of sympathy, support and absolute passion in their local community. Those local community members are loyal to their local governments. They might like to bag out—let us pick one that does not exist—the shire president of upper Widgiemooltha shire because they are annoyed that their rates have gone up.
Hon Jackie Jarvis: Think about the poor Hansard reporter!
Hon Dr STEVE THOMAS: Sorry, that is a hard one to do. Sorry about that. I could have picked a different and easier one.
Hon Martin Aldridge interjected.
Hon Dr STEVE THOMAS: It is not a contest, honourable member!
The reality is that it is easier to pick them. They might like to complain about what their local councillor is doing, but they are passionate about having their local council and they are loyal to it. Running around trying to shut them down is very difficult. Previous attempts failed completely because they did not develop a reason for an amalgamation potentially being a good idea. I suspect in the long-term that there will be an amalgamation of local governments in a way that we probably have not seen before, but a reason and a benefit has to be demonstrated about the services provided by the local government and not about where the boundaries are. I am first to admit, I was in the Public Accounts Committee all the way back in 2005 when we did an investigation into local government in which we recommended that the auditing of local government was not up to scratch and should be overseen by the Auditor General. I stand by that. A lot of local governments do not like that because it has increased the cost for them. The members of the committee—we had one dissenting voice—the Attorney General, John Quigley, Hon Ben Wyatt, the retired Treasurer and I looked at this and said that better audits will provide for better outcomes. We always said that if there is an argument for amalgamation, Hon Darren West, it would come out in a serious audit of the resources and capacity of local governments. I understand local governments are being hit by additional costs at a level at which potentially causes them to struggle to provide the services they need to provide, and they do not like having that identified, but the reality is that the best way to assess whether there is a future for a local government is to assess its long-term viability—and it works. If a local government wants to provide additional services and is prepared to charge its ratepayers an additional amount to cover the costs, and it gets that through and gets re-elected, guess what? They are all happy. There is a reason that Nedlands has a “walk around and pick up your rubbish bin from your backyard” situation. I presume it still does; it was always the one that we used to use. I do not know who is living in the City of Nedlands at the moment.
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Hon Dan Caddy: It’s Peppermint Grove you’re thinking of.
Hon Dr STEVE THOMAS: It is Peppermint Grove.
If the Shire of Peppermint Grove wants to charge that and its ratepayers love it and are happy to pay an additional fee, why not? The assessment we need to use is whether, ultimately, the viability is established through an appropriate audit that the community can read and understand. Let us not talk about the audits that the state government gets. They are probably more embarrassing than a lot of the local government ones are at the moment, so there is this enormous double standard. Whether that works is a critical measure rather than lots of the other things that we are talking about here. Can we start with that initial process of what the role of local government is and whether it is being fulfilled in a manner that is sustainable in the long term, which a proper audit process should identify? That is my first question as a part of this process.
The second question is: how does local government go about doing that? How do councillors deliver that? For the most part, councillors work fairly well, but lots of local governments have issues. Lots of local governments have problems. The South West Region is not immune from that. Local governments have been suspended and a commissioner put in place. To be honest, in many cases, some of those issues are so ingrained that the commissioner has come in; the issues are only partially resolved and it goes back to an elected model. The question will ultimately be how much authority and power we actually believe local governments should have. I thought one of the members opposite might have suggested that it might be none but maybe I got that wrong. The reality is that we need to identify what we think those powers should be. I think that is a great debate to have.
Members might have noticed, particularly through the COVID-19 period and onwards, that a number of planning processes were circumvented to allow the state government to effectively override the planning decisions of local government. I remember sitting here during the COVID debates of 2020, 2021 and 2022, before and after the last election, saying that the good changes that occurred in the planning system, which will disempower local governments, in my view would be extended. The question that has to be asked is: if it is a good way to get planning decisions done in an efficient manner, why would that be taken away? There is an issue around planning in local government that ultimately needs to be addressed. It is not addressed in this legislation. None of that is potentially fixed. The issue of regional planning is particularly important because local government works fairly well in an isolated way, when one local government is a fair distance away from the next local government. Its role as the level of government that is closest to the people becomes critically important when it is separated and the distance is great. There are local governments, probably in the north west and in the more spread-out areas of the wheatbelt, that face the sheer tyranny of distance and might struggle to be financially sustainable with very low populations. When we did the report, I think that the lowest population was in the Shire of Sandstone, which had about 300 residents. I am not sure what the lowest population is now, but it is probably 300 or 400 people in a local government area.
Hon Peter Foster: It’s the Shire of Murchison.
Hon Dr STEVE THOMAS: It is the Shire of Murchison? How many has it got?
Hon Peter Foster: About 40 or 50 people.
Hon Dr STEVE THOMAS: About 40? Well, there we go. To become a councillor is a raffle. Does it get raffled off at the annual Christmas party?
Hon Martin Aldridge: It’s your turn!
Hon Darren West: It’s a punishment!
Hon Dr STEVE THOMAS: It is a punishment set out for people. Government representation is occasionally a punishment. The pay in Taiwan is so terrible that no-one wants to be in Parliament and it is a punishment to get in. It is not surprising. If they are so isolated, there is an argument to be had for that, but it has to be proven and that is where a good audit will work.
In my view, the legislation before us is very much aimed at controlling what councils and council laws can and cannot do. Here is my problem with the legislation: it limits disagreement. It limits a robust debate. I like a robust debate. I like to get up here and disagree with members opposite. I think that is a healthy part of democracy, and I enjoy the banter back and forth because disagreement is a useful tool. I do not take it personally. I have been shouted at by members of that side, and I only ever respond politely and calmly, but that is part of the normal argy-bargy of democracy. Local councils need to not be foolish or stupid with it, but a robust discussion is needed.
There are a few interesting things about local councils. If we make a decision in the Legislative Council and I disagree with it, I am perfectly at liberty to go out and say that I disagree. I can disagree with the government, and I can go out and say that. I can even disagree with my own side of politics, and go out and say it, and I not infrequently do that. There have been a few prime examples of that recently. Do you know what? That is part of the rich diversity of
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democracy and is as it should be. At least on the conservative side of politics, I am allowed to disagree, which is more than I can say for members opposite, unfortunately. They are stuck in a position in which they are required to obey.
Hon Dan Caddy: We all meet together in the one party room. That is the difference.
Hon Dr STEVE THOMAS: They are required to obey and do not have the freedom to stand on a point of principle against the powerbrokers and the powers that be in the Labor Party. I understand that makes it a bit trickier. I am not sure who the current powerbrokers are in the upper house. It makes it a bit trickier. I said the word “powerbroker” and the Deputy Leader of the House walks in—I have got to say—looking immensely powerful, as he does.
Hon Stephen Dawson: I had better take my seat so I can interject.
Hon Dr STEVE THOMAS: He looks immensely powerful, as he does! I understand that it is very difficult, but we can dissent. The problem with local government is that it makes dissent very difficult, and it is not handled well. I have a couple of problems with this. The first is that when allowing for dissent, even dissent after a decision is taken, is removed, free speech is removed to some degree. We have a problem with that only if we think that dissent is unhealthy. I actually think that dissent is healthy. I think that we should have a bit more of it—in a polite and respectful manner—and this bill will tend to take away that process.
In my view, the other thing that the bill before the house does, more than anything else, is pretend to make significant change when it will not necessarily do so. It will shuffle the deckchairs without necessarily delivering outcomes. It is vaguely possible that, somewhere down the track, the changes that will be made by removing some particular bodies and effectively calling them something else will perhaps open the door for a change in direction. The bill will create these new bodies so we will not have reviews and standards panels. Under clause 125 and the new part 8B, the bill will create a local government inspectorate, a person as an inspector. Slightly on from that, the bill states that adjudicators will be created, and slightly on from that, in division 5, monitors will be supplied.
At the moment, we have the Department of Local Government, Sport and Cultural Industries assisting local government. It is supposed to have all these people in place. But I have to say that when we did this in the Public Accounts Committee 20 years ago, we took the view that most of the reports that came in from local governments for assessment by the department of local government were very useful on a hot day to prop the door open and let the breeze— the Fremantle doctor—come through. That was about the only use they ever got. The department did not really use those documents for anything of substance.
All these years later, has that significantly improved? We recognise that there are issues in some local governments. Guess what? There always has been. We are going to put in a model to try to address that. There has always been a model, but it is going to be a slightly different model now. There will be three different groups going forward instead of the department of local government and the Local Government Standards Panel, but it is hard to measure what will significantly change in effect as part of this process. It is hard to think that this will be significantly different because the basics will not change. This is the latest government attempt to play around with local government and the basic structure of what local government is there to do and its roles and functions will be largely unchanged. I agree with Hon Dr Brad Pettitt; I think if anything, they will probably be slightly watered down.
I will come to CEOs in a minute. It is very hard for councillors. One of the things I note is a very interesting clause in the bill: clause 75. It will insert proposed section 6.14A, “Prohibitions on certain payments connected with legal matters”. I find this quite interesting. I would be very interested to know from the minister how many legal matters he thinks local government has inappropriately invested in for councillors. The state government itself is not averse to throwing money at investigations. Members may remember an investigation into the City of Perth some time ago. I think the final report was down in 2022. Sorry—it commenced in 2018 and was tabled in Parliament in August 2020. It was all done in the last Parliament.
In this Parliament, I made the effort to actually ask how successful that $7.8 million dollar investigation had been. Members can go back and look at this. On 11 May 2022, I asked the Leader of the House representing the Minister for Local Government a question on notice. It stated —
(a) have all actions and activities of the enquiry itself now been finalised;
(b) if no … what actions … are still ongoing;
(c) what was the final cost …
(d) have all of the 135 matters referred by the enquiry to 17 different Commonwealth, State and other authorities, as cited … been investigated …
I then asked how many of those investigations had been finished, how many charges had been made, how many of those had the government received a report on and what the government had done with those reports. The answer was: the inquiry panel itself has been completed, the findings and recommendations have been made and there may
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be future work. Funnily enough, the government is claiming that this bill is the result of some of that future work. The final cost of the panel was $7.7 million.
When the state government wants to get a bit of political mileage out of something, it is more than happy to spend millions of dollars on an investigation: $7.7 million. The answer of what happened continued —
(d)–(h) Any investigations by other agencies arising from a referral from the Inquiry Panel are not within the … remit of the Minister for Local Government …
However, several of the findings and recommendations made by the Panel have informed the major package of local government reforms announced by the Minister in November …
That was in 2022. It took a couple of years to get here.
The government was embarrassed. What happened? This massive investigation into the City of Perth largely resulted in—almost nothing. Let us call it $7.7 million for largely a political witch-hunt by this government that delivered diddly squat. Government members are worried about local government’s response to complaints about councillors. The $7.7 million could be put in the insurance pool and it would probably pay the insurance premium for a number of years. That would have been a better investment than the government inquiry. What are we going to do as part of this process in clause 75? It is going to make sure a complaint or investigation under proposed section 6.14A(1)(a) will require the council member to provide effectively their own legal representation. The question is whether that is going to be incurred despite the fact that complaints might, let us say, be optimistic at best. A lot of complaints happen in local government, as there are about members of Parliament, where people do not like the outcome. There are a lot of complaints in which people are simply complaining about the delivery style of a person they do not like. How do we work out which ones are vexatious and deserve council support? There is a very nice precedent here. I remember not that long ago when the then Premier, Hon Mark McGowan, and the court-described “unreliable” Attorney General charged an enormous legal bill to state coffers to go over to Melbourne for the Clive Palmer lawsuit. I do not have a problem with that. I actually think it is quite reasonable if someone is being sued for doing their job—absolutely. But why is there a double standard? There should be minimum standards of behaviour in councils. I absolutely agree with that, but ultimately, to some degree councillors have to be mature enough to be able to manage that. If we need training for council leaders, I think that is really important and I would love to see that. However, be very cautious about taking away legal representation, particularly through the local government insurance fund, for councillors who are facing vexatious claims. This was asked in the lower house by the Leader of the Opposition. He asked why it was necessary. The response from the minister was —
It is not appropriate for council members to use ratepayer funds to defend their misconduct.
If they have been proven to have undergone misconduct, particularly serious misconduct, I do not think anybody disagrees, but there is a process for that. Serious misconduct is examined by the Corruption and Crime Commission for starters. There is a process and an avenue for serious misconduct. Misconduct more generally goes before the Local Government Standards Panel but we want to be very careful because there are a lot of local government councillors who have been to the standards panel, have been accused of all sorts of things and have been completely exonerated. Some of those councillors would struggle to achieve any kind of justice without some form of legal representation. As we make it more and more complicated—that is what this legislation will do—it kind of takes away the goodwill component. I understand why that is, because goodwill is not as common as I would like it to be. A lot of our laws exist because we are in a litigious, accusatory and selfish society, so we make laws for the lowest common denominator. I understand that; we have to do that. However, I think it is an incredibly dangerous situation. The minister was asked for some specific examples and gave none. The only reference or clarification was on defamation. She said —
… defamation is an exclusion matter. This amendment will ensure that a local government can insure and protect council members from civil litigation, such as defamation and negligence suits.
That is as it should be, as state government ministers are immune. They are not immune from corruption charges and neither should they be but neither is local government. The same process occurs.
I think it is very interesting that the state government is happy to provide a level of support to itself that it seems to be reluctant to provide to local governments. I understand. It is looking and saying, “This might cost us money.” Funnily enough, the federal government seems to think the state government costs it money all the time. There is a reason that the federal government tries to funnel money through local governments instead of through the state, because there is constant undermining, conflict and competition. The same occurs between state and local government. I get that. This is where we come back to the need to make a firm decision about the role of local government.
I think this is an incredibly dangerous clause without further clarification and explanation. I hope that when we get to the response, the minister will be able to reassure us that local councillors who are accused but seek to mount
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a defence because they think it is either a vexatious claim or that they simply have a defence that should have it excluded, will still be able to receive the support that they need. If that is not the case, I think clause 75 of this bill should probably be opposed. But let us see where we land with that. I committed to making this a reasonably short contribution.
Hon Jackie Jarvis interjected.
Hon Dr STEVE THOMAS: It may not seem like it, minister, but for me this is short!
Hon Jackie Jarvis: I was just clearing my throat.
Hon Dr STEVE THOMAS: Yes, okay. Ha-ha!
I will make sure I finish up in the next 10 minutes or so. There are valid concerns around this bill.
The other piece of unsolicited advice I want to put on the table is that in many cases in my view chief executive officers are far more powerful and independent than they should be. A lot of the conflict that occurs in local government is when, effectively, chief executive officers are de facto councils and councils are left outside the door when major decisions are made. I think that is a very common occurrence. I have seen it in my patch; I have seen it everywhere. In the old days, it was from shire clerks to CEOs. It is very difficult for local councils, particularly smaller local councils in which resources are not that great, to hold chief executive officers to account. Some days, I wonder why we are not all lined up to be CEOs of local governments instead of sitting in here. The money is probably twice as good.
Hon Dan Caddy: Or more.
Hon Dr STEVE THOMAS: Or more—twice as much or more! We would ultimately end up in a massively powerful position in which—using almost a quote from Yes Minister—when councillors screw up they get the boot, and when CEOs screw up, councillors get the boot! I think that is a fairly common component. The funny thing is, when CEOs screw up—hopefully that word is acceptable in Parliament—not only does the council generally get the blame, but it is funny how when CEOs leave, they emerge in another local government somewhere. They cycle them around. I think this is part of the problem with representative bodies—that, largely, CEOs have enormous power over their councils because they are much better at the procedures and policies and operations of council and they tend to leave a lot of the average councillors behind. They are also hardly ever held to account. I struggle to see how in effect the legislation proposed by the government will increase the accountability of CEOs. I think this is absolutely critical.
In my almost 20 years in Parliament—a heck of a long time; members would probably say too long—I have seen an enormous diminishing of the authority of councils and an enormous empowerment of CEOs. It is completely different from the version that I first encountered.
Hon Dan Caddy: They used to be town clerks.
Hon Dr STEVE THOMAS: Yes, that is right; they were shire clerks or town clerks. They became CEOs, which came with a huge pay rise. As I have said, we are all mad. I do not know why we are here; we should be looking to become CEOs of local governments. We would do much better than we do here.
CEOs often create empires. One of the issues faced by members of the community is that their ability to hold their local government to account is based on their capacity to eyeball their local councillor and say, “I don’t like this.” Sometimes councillors have to toughen up a bit. Just like lots of MPs, they are far too inclined to tell everybody what they want to hear. A local councillor could go to Hon Darren West and say, “Put all the money out in the wheatbelt.” Hon Darren West could say, “No worries.” Hon Dan Caddy could say, “No, put it all in the metropolitan area.” I will say, “Yes, absolutely; I am right behind you in both cases.” It happens, as it does in state and federal Parliament. Councillors have to muscle up and be more responsible. Although they feel entirely disempowered because they cannot get past the executive of the council, where is the value in it? How will this piece of legislation remedy that? How do we start to insert a bit more democracy into local government with the legislation before us? I do not think we will. I think this is a reaction to the City of Perth witch-hunt and a few other bits and pieces. I do not think it is a solution to much. Lots of it is not terrible. Sure, they have moved the deckchairs around and they are now calling it something else. Complaints will go through door B instead of door A and we will probably find exactly the same person on the other side dealing with it. Good luck. That is okay. Will it make a significant improvement to the functions of local government? I think the answer is no. We should be honest about this. If we want to change the function of local government, let us do it in a way that is absolutely up-front and honest. Let us say, “You know what, local government? We think your role looks like this.” It is not just roads, rates and rubbish anymore; neither is it lots of other things that they put themselves into. I take a moral objection to local governments forming water plans, for example, that completely attempt to override the department of water’s strategic plan, not that I like the Department of Water and Environmental Regulation all that much. I think it gets it wrong a bit, but
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at least we have an authority to throw rocks at if need be. Local governments are jumping in trying to put in Dan’s policies and all the rest of it. They need to focus entirely on their role.
I think regional planning is a role that needs to be removed from local governments and put into a regional planning model. The south west has the greater Bunbury region scheme. I do not think the government has used it for anything of substance, so it just sits there wasting everybody’s time. In theory, we could improve planning. We have the metropolitan region scheme. I think there are 137 local governments—30 in the city and 14 in the south west. That is 44. That 44 out of 137 covers about 2.5 million of the three million people in Western Australia. It is a very different sphere when we get outside that. In the south west of the metropolitan area, the issues are very much around trying to develop and we are more likely to have people opposing development because it already has a fairly strong population.
If we go out into the wheatbelt and the north west, local governments are generally very pro-development because the population is decreasing in a lot of cases. They want to see development grow. I find it quite refreshing to talk to those councillors because they are hamstrung by a lack of government service, largely from the state government. For example, the government canned the very good regional wastewater subsidy—a billion-dollar plan that successive governments cut back. It was a Court government plan that the Gallop government partly threw out in 2001, and the next government threw it out a bit further. There is good stuff in those areas that might help development.
If we are going to have an honest debate, let us define what local government needs to do and deliver for its people. Let us have a proper assessment. My view is to use the Auditor General’s oversight. Let us have a debate about that. Shuffling the deckchairs and playing around with this and, ultimately disempowering councillors—probably empowering CEOs to make their life even more difficult—is not the solution. To base it on the review of the City of Perth—at least that was only a $7.7 million embarrassment. I could point out a quarter-of-a-billion-dollar embarrassment that this government has engaged with. But that was $7.7 million of investigations that delivered nothing for the government. It did not even get the political scalps it wanted, in the end. Yes, it blackened a few reputations, mostly through accusations, but that is about all it did. The reality is that a lot of the driving force behind this is far more political than people think. The outcomes are also going to be far more political than people think.
This legislation largely misses a lot of the things that need to be addressed in local government, and for that reason I actually think it is a very disappointing piece of legislation. It is not all bad; there are a few good bits in it, and that is great. I do not think people will necessarily vote against it, but it is a missed opportunity to do something genuinely good. We will be back here in four years’ time, debating another local government amendment bill, because the changes promulgated in this one will deliver very little.
