by SOS President Ian Quick
Update: this was defeated in the upper house!
The Brumby State Government is moving to restrict resident activists’ ability to represent issues if they get elected to a local council, by widening the definition of ‘a conflict of interest’ to an undemocratic degree in amendments to the Local Government Act.
It will be a deemed a conflict of interest if they had EVER made an objection or submission in relation to a matter being considered at a council meeting, so they would not be able to participate or vote on the item.
For people like me, who have made so many submissions to council that I’ve lost count (well over 50) – what would there be left to vote on? Would the only thing councilors could vote on be things they have no interest in?
And at the same time the proposed amendments specifically exempt state government employees from having a conflict of interest if items before council relate to or impact their place of work!
The Melbourne Times (8/10/2008) has just published a good article about this naked attempt to curtail democracy:
Conflict of interest bill would restrict councillors
BY BIANCA HALL
COMMUNITY activists elected to local government could be sued for voting on contentious issues under a bill being considered by Parliament.
The upper house is due to vote on a revamped series of laws governing the conduct of councillors in two weeks.
If the bill is passed, any councillor who makes a submission or objection on an issue his or her council votes on would be considered to have a conflict of interest. Fines of more than $ 11,000 apply.
Under the new rules, councillors would be prevented from objecting to a range of matters they could be expected to vote on.
Save Our Suburbs president Ian Quick is a candidate for November’s Yarra City Council election. Mr Quick, who regularly lobbies councils on planning and transport issues, said the new law “removes councillors’ ability to make submissions, let alone objections, on a wide range of issues”.
He said it was “a typical move by this State Government to muzzle democracy” and “an attempt to silence councillors who are also members of community groups”.
Under the bill, councillors would be prevented from making submissions on matters including council budgets, local laws and planning schemes and then voting on those issues – or even being present during a vote.
Councillors’ family members would also be barred from making submissions on community issues.
Local Government Minister Richard Wynne said the new provisions had been included on the advice of Liberty Victoria president Julian Burnside QC.
“An elected official must at least have an open mind to hear arguments, and that is the key criteria that anybody in public office should adhere to,” Mr Wynne said.
Northern Metropolitan MLC Greg Barber will try to move amendments to the bill to scrap the section relating to conflict of interest.
You can read the proposed changes at http://www.dms.dpc.vic.gov.au/domino/Web_Notes/LDMS/PubPDocs.nsf/ee665e366dcb6cb0ca256da400837f6b/E3DEFE43FF261C60CA2574BF002C0C80/$FILE/561191bab1.pdf
– let’s hope the daily media pick up on the topic!
Ian Quick
SOS President
Note the update from greg barber below, you’ll notice he has used me as an example!
Update: From Greg Barber, MLC (upper house green)
Dear Friends
A proposed law before the State Parliament will clip the wings of any active citizen who runs for local council, by making it a ‘conflict of
interest’ to vote on any matter on which they previously made a submission.
It is due to be voted on this coming Tuesday (28th) in the upper house and to stop it, you must lobby the Liberal and National parties to vote for the Greens’ amendments.
Do you know anyone who is running for Council in the elections this November?
Are they active in a number of local community groups which are trying to convince governments to take action in their area? Are they the sort of person that regularly attends Council meetings or writes submissions, until one day they got so fed up they decided to stand for council?
This is a law against those people. It’s a law to discourage them from running, or to knock them out of voting if they are elected.
What’s wrong with this provision?
Councillors already have a responsibility to act in an ‘unbiased’ manner when dealing with certain types of decisions – such as applications for
planning permits. This obligation arises out of common law and is well described in a government publication Ensuring Unbiased Democratic Council Decision Making (see link below).
The Government’s proposed new law goes much, much further.
Councillors can be banned from voting on any Council matter if they have previously chosen to:
(ii) make an objection or submission in relation to the matter.
* It doesn’t have to be a submission you made to the Council you are running for. If you made a submission to a state government review, your Council forming its position on the same review could be seen to be the same ‘matter’.
* It’s irrelevant what you said in your submission, whether for, against or neutral on a proposal. Writing the submission automatically gives you a conflict of interest.
* It doesn’t have to be a personal submission. You could be an office bearer of a group or other entity and be held responsible for the
submission your group made.
Example: Katherine is a local councillor and also the Treasurer of the local Landcare group, who wrote a submission to the Minister for Water on a proposal to declare certain wetlands as protected. Later, the Minister writes to Katherine’s council asking them for their position on the matter. Katherine can’t vote.
* It could be a verbal submission you made by speaking at a council meeting. It doesn’t matter what you said, because the only necessary
action is that you made a submission.
* It’s retrospective. Any submission you made in the past could knock you out of voting at any time on the future.
Example: Ian made a submission on his council’s proposed by-law on footpath trading rules. Some time later he is elected to council. Five
years after the law was first created, Council considers running a review of the law. Councillor Ian can’t even vote on whether or not to review the law because he made a submission on the original version.
* It also applies to councillors attending briefings from staff members, not just formal council decision making meetings.
* It also applies to any Council employee who exercises powers under delegation.
If this Bill is passed, it will not lead to clarification of the law, it will create massive confusion. Elected Councillors face a breach of the
Conflict of Interest provisions and fines if someone digs up a submission they wrote, possibly years ago.
It’s unneccessary. Existing legal provisions and guidelines cover this area. Clarifying the law is one thing, massively expanding its reach is
another.
Please take action today by writing to the Liberal and National Leaders ted.baillieu@parliament.vic.gov.au AND peter.ryan@parliament.vic.gov.au and ask them to support the Greens amendments (see below) when the Bill comes to the Upper House.
cheers
greg
Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008
Section 78D
Indirect interest as a consequence of becoming an interested party
A person has an indirect interest in a matter if the person has become an interested party in the matter by
(a) initiating civil proceedings in relation to the matter or becoming a party to civil proceedings in relation to the matter; or
(b) exercising a right under the common law, an Act or regulation to
(i) lodge an appeal in relation to the matter; or
(ii) make an objection or submission in relation to the matter.
[The Greens propose to delete this last line]
Update
Kate Lahey and Jason Dowling
The Age October 22, 2008
http://www.theage.com.au/national/personal-issues-vote-ban-20081021-55jf.html?page=-1
Update
Contriving a conflict where none has gone before : AGE EDITORIAL
The local government bill will deter community activists from seeking election as councillors.
http://www.theage.com.au/opinion/editorial/contriving-a-conflict-where-none-has-gone-before-20081022-56bg.html?page=-1
‘Indirect interest’ rule slap in face of democracy: Burnside
A MOVE to ban councillors from voting on the issues they care about most is too extreme and will harm democracy, a human rights lawyer has warned.
Julian Burnside, QC, also says the change being pushed by the Victorian Government does not reflect the Supreme Court ruling the Premier claims it is based on.
http://www.theage.com.au/national/indirect-interest-rule-slap-in-face-of-democracy-burnside-20081022-56ew.html
(note Julian Brunside has recently provided advice to the Municipal Association of Victoria on these matters. We are yet to hear a response from the MAV on this week’s stories)
Councillors and Communities Need Clarity on Conflict of Interest
Victorian Local Governance Association President Cr Beth Davidson today called upon the State Government again to clarify proposed conflict of interest provisions currently before the Parliament.
“As a minimum, urgent clarification needs to be provided in the Parliamentary Debate, or amendments to the Bill so that confusion is resolved and the net is not cast too widely.
http://www.vlga.org.au/news/detail.chtml?filename_num=236348