The NSW Minister for Local Government, The Hon Shelley Hancock MP, a week out from the local government elections released a consultation paper. The paper concerns the operation of the Code of Conduct provisions of the Local Government Act. These are contentious provisions both in their terms and in their operation.
The Minister’s media release can be seen here. A copy of the consultation paper can be obtained here.
What are the Code of Conduct provisions? These arise from the Local Government Act 1993 in which Parliament has legislated that the Public Service, by regulation, can set up a Code of Conduct for the ‘governance’ of elected local Councillors.
The final delegated provisions are contentious, and the terms of reference and the tone of the inquiry continue this theme.
The Code of Conduct provisions maintain perpetual confidentiality of the process of an enquiry into the conduct of a Councillor. There is never an opportunity for the impacted Councillor to open-up the process to public view.
If charged with a criminal offence, the same Councillor would have the public gaze once the investigation was concluded and they were charged. Not so under a Code of Conduct charge.
According to the terms of the Code of Conduct, the charge is administered primarily by the General Manager of the Council. The General Manager suggests a recommended list of investigators to Council and then determines which firm or person on the list will undertake the investigation.
There is absolutely no transparency in this process nor any restriction as to how many times any particular entity on the list might be appointed. The potential for conflict of interest in the process is great.
As a mechanism for intimidation and bullying of a Councillor by the General Manager, or other Councillors, or even a Mayor, is evident on the facts over several terms of councils across Metropolitan Sydney.
But there is one overriding principle which is particularly contentious and disturbing
The Code of Conduct provisions are a bureaucratic supervision of community elected representatives. In a democratic process prescribed by the NSW Parliament.
This is an abrogation of the principles of democratic governance established by the Parliament.
How might State Parliamentarians respond to the Secretary of the Premier’s Department having the ability to suspend them from Parliament or to remove their salary pursuant to a Code of Conduct drafted by that same Secretary?
Is there a problem of unruly and out of control Councillors?
In NSW there are 128 local government areas. The Local Government Act section 224 provides that a Council can have from five to 15 councillors. So the minimum number of Councillors permissible in the State is 640 and the highest 1,920.
Over the past five years, the last term of NSW Councils, 30 Councillors were ‘disciplined’ under the legislative code of conduct provisions. In the past five years one Councillor has received counselling, six were reprimanded, seven ordered to “cease engaging in misconduct”, three were ordered to apologise, eight had their pay suspended and four were suspended from civic office.
This is an unremarkable 5% of Councillors on the low estimate of the number of State Councillors or 1.5% at the high end.
What are the number of State MPs cautioned by the Speaker or removed from the Legislative Assembly in the past five years?
In the years 2019 to 2022, 10 ALP members (27% of the Parliament) were barred 23 times from the Parliament for a day. Sixteen for less than a full day. One was named and spent 40 days out of the Parliament. These 10 MPs make up just over 10% of the Legislative Assembly. The Bear Pitt lives up to its name.
It must be emphasised that the ALP is being used as they are the Opposition. Government members do not get thrown out of Parliament, if they have, these figures are not available. (Despite a request having been made).
Even limiting the comparison to being between MPs and Councillors, on these figures, one third of the ALP members, if they had been Local Councillors, would have been disciplined by the public service!
It is not surprising that our forefathers who fought for their freedom from whatever form of tyranny – including political, religious, economic or enslavement – acted in support of Thomas Jefferson’s well-known saying: ‘The price of freedom is eternal vigilance’.
Part of this price is to recognise where the standard of freedom is unwittingly and inadvertently slipping for the sake of the introduction of a good idea. The Code of Conduct process is a good idea – but in the wrong form.
To express this slightly differently, there can be no exceptions to the foundational principles for the governance of our governments – being an elected representative democracy. This principle is taken as a perpetual thing.
However, unfortunately, there is a failure of articulation. Any exception to this foundational principle is the start of a very slippery slope, as modern history has shown.
