Published: 22 November 2017

Legislative Council Wednesday 15 November 2017

Ms  FORREST (Murchison ) - Mr President, I note the member for Elwick's contribution.  As the local member for the area, his opinion is well informed and obviously driven by party position as well.

Mr Farrell - Two-thirds of the local area.

Ms FORREST - Sorry, member for Derwent.  Maybe he will speak as well on the third he is responsible for.  Some of us have five councils in our areas.

The media has had a lot of interest in this bill and they have been ringing for some time asking, how are you going to vote?  As always, I say wait until I have had all the information presented that I need, including briefings today, which I thank the Leader for organising.  They were very helpful.

I thank Sue Smith, the commissioner, particularly for her contribution.  From knowing her work in this place, she argued and put her points and concerns very clearly.  To speak about the role of Sue Smith as commissioner, it was in some respects the poisoned chalice.  She was going into an area with huge dysfunction and strong personalities at war.

There was a real need for cultural change within this council, and in many respects she was damned with what she did and damned with what she did not do.  All power to Sue Smith for the work she has done, and particularly for the cultural change she is effecting in Glenorchy.  She talked about some of that in the briefing today, about giving those workers further down the line, if you like, in less senior positions, real ownership of their reports, their projects and that sort of thing, which she clearly outlined was not the case before.

That is really important.  A good workplace culture will eat strategy for breakfast any day.  If she can instil a culture in that organisation before the council is re-elected, whenever that may happen, she will be remembered for that work she has done.  I commend her because it is not easy.  She went into a toxic environment, and she has done a fabulous job.

I hear this from a range of people.  While watching from the outside it is pretty clear.  Sue is a pretty straight shooter and does not suffer fools gladly.  All power to her.  I see both sides of this argument on whether we should pass this legislation and force an early election, before October.  I also see the arguments around the commissioner doing a great job in handling instability in Glenorchy.

Why would we not allow that to continue for another 10 months and then have the election in October when they are due?  It is not like it is two years away; it is less than a year.  There was a lot of concern for me as I have had equal representation about do not support it/support it.  Other members do not seem to have had the same as I have.  That is fine because it challenges your thinking.  That is why I want to present both sides of the argument here.

The whole board of inquiry has been a very expensive process.  One of the real concerns of those who perhaps have contests opposing the legislation was they would not have access to the report to help guide their decision-making around election of new councillors.  If Twitter is correct and the latest challenge has been tossed out, unless there is another challenge the report should be made public.

The Treasurer gave a verbal commitment in our briefing that would be the case.  Some people feel the need to continue the fight for matters of their own interest.  The people of Glenorchy are well and truly sick of that in terms of delays.  This has been taken to the court and they have looked at it.  How many times do we have to do that?

Some people do not give up easily.  Hopefully we have a situation where a court decision has been made, and people can respect that, move on and allow the report to be made public.  It would have helped me as a member making a decision on this legislation to actually see that report.

After briefings today, I am happy to accept, regardless of what is in it, that there needs to be some certainty in Glenorchy for the people.  I can see the arguments.

I want to read some small parts of the letter other members have referred to but not related, from Mitchell Woolley.  He wrote a very passionate letter, asking us to oppose the legislation for a number of reasons and put it well.  He said -

Firstly, an early election would not aid in bringing stability to Glenorchy.  It is clearly evident there are deep divisions between aldermen at the council.  Whilst I am hopeful that these issues can be worked over, every indication suggests that they will continue into the next term.

It is up to people to think about how the people they elect will act in their role.  You cannot always determine that, but I hope the people of Glenorchy, when they get the chance to vote, think about that.

A lot of good people have stood, and do stand, for local government.  You cannot always understand the dynamics, but your role when you are elected is to actually work together.  The same as in this place - we have to work together to get legislation through or put a good case as to why it should not.

This is great if the numbers are on your side.  If they are not, that is democracy.  You move on, step out and go on to the next thing.  It is incumbent on all elected members, whether local, state or federal level, to actually do that.

I am going to quote only parts of this letter.  All members would have received it.  He goes on at that same point -

Even if the extra nine months do not reduce tensions amongst aldermen, at least extending the Commissioner's tenure to October next year would give us much needed stability in Glenorchy.

He is right on this point.  The commissioner has provided great stability.  She is creating cultural change and has been very positive for Glenorchy.  I agree with him on that point that would be a likely outcome.  Equally, there are the people who say we have a right to have elected representatives and want to get on.

His second point -

… an early election could mean the board of inquiry report is not available to us electors at the time we need to vote.

He went on to say -

… it is important that we electors are given a chance to read the report in full before deciding how we should vote.  Without seeing the report, we electors can not be confident that the synopsis provided by The Mercury is accurate.

He is right to suggest that.  If we rely on the local paper for our source of research and evidence, we are in real trouble.  Even though the Mercury does provide some factual information, we actually need to see the source document to be sure the newspaper actually reflects the report.

Mrs Hiscutt - Would it be true to say not the same councillors might stand?

Ms FORREST - That is true.  I have heard on the grapevine, and I am not as close to the grapevine as the member for Elwick or member for Derwent, that a number of them probably will not.  We will see a change, but that is up to the people of Glenorchy.

With the announcement this morning the challenge was thrown out by the court, hopefully the report will be able to be made available and will remove the concern of Mr Woolley in that regard.

Third, he said -

… the early election violates the normal processes concerning the dismissal of aldermen.  The Minister commented in the House of Assembly's committee that 'the provisions in the Local Government Act are designed to ensure the councillors cannot be dismissed without a proper and rigorous process and that is the board of inquiry'.

It is important that there is a proper process around that -

Without a completed board of inquiry, the dismissal of the councillors and calling of a new election violates the processes prescribed by the Local Government Act 1993.

The Minister stated in the second reading speeches that he had not seen the board of inquiry report.  Without having seen the report, the Minister's bill can not have been introduced as a result of claims examined by the report.  Instead the Bill is reliant upon evidence that has not been tested by a board of inquiry.

It is completely unreasonable to sack elected representatives on such unexamined claims.  It denies the aldermen and us electors due process.

It is a fair concern.  He is rightly concerned about setting precedents.  Hopefully, we are not going to see this happen again because it reflects badly on all councils.  People throw their hands up and say local government is just a mess.  Actually, some of them are not but some of them are.  I think it is right there is a proper process around that.  In the briefing today, Sue Smith clearly outlined the process it has gone through, the mounting costs associated with it, the cost the ratepayers of Glenorchy will foot and the fact that some aldermen perhaps have been using various delaying tactics to see this prescribed process in the Local Government Act stymied to an extent - for whatever reasons, reasons only known to themselves I suggest.  It is important not to override proper process when it is there.  It is a valid concern, but I hope the release of the board of inquiry report will partly remove that concern because the process has been gone through.  It depends on what that says, of course.

He also raised concerns about clause 10 and that it should be struck from the bill.  This section of the bill effectively removes the natural justice component, if you can call it that.  I was concerned about that and spoke to the President about it.  Any time you remove a natural justice provision, we should rightly question that.  Is it the right thing to do?  Everyone has a right to natural justice.

In the briefing today, Sue Smith clearly outlined how some aldermen have viewed natural justice in terms of giving her as commissioner a very short time frame to respond to major events.  She said after the announcement about this legislation being presented, within - I think it was a day or two, I cannot remember the exact timing - resignations were provided to her by seven of the aldermen who were currently suspended.  She had to get legal advice around whether this is possible.  Again, more cost in obtaining that legal advice.  Then she got a letter saying that the decision had to be made within a four-day period.

Mrs Hiscutt - A legal letter?

Ms FORREST - Yes.  In terms of natural justice, where was the natural justice for the Glenorchy City Council as run by the commissioner and the opportunity to really understand and ensure proper process was followed?  Some have said in public it was a stunt; maybe, as other members have suggested, a resignation rather than a dismissal might look better on their CV.  I am not sure of their motivations. 

I still have concerns about that clause but I can see, if the clause were removed, that we could see further legal challenge, further legal challenge, further legal challenge.  Where does it end?

Mr Gaffney - I think if I were one of the aldermen, doing my job, working, and then on my resume I have 'dismissed from', I understand why they have taken the approach they have taken.  I do not think anybody would want the fact that they were dismissed on their CV.  They have probably gone in there with the best intentions and just got caught up in it.

Ms FORREST - I do not know what their motivation was.  Some people have said that was the case but I am not sure that is the reality.  I wondered whether there was a thought it might again slow the process down, keep holding it up.  I did not think initially of the suggestion that it might look different on their CV.  I thought this was another delaying tactic.  When I heard from Sue Smith today about the time frame given to respond to that, there may have been a different motive, but I do not know.

Sue Smith said clearly, and I am just paraphrasing what she said, that the only option in a climate of people who believe they can push things on and on -

Sitting suspended from 1 p.m. to 2.30 p.m.

Resumed from above.

 [2.50 p.m.]

Ms FORREST - Before lunch I was reflecting on clause 10 of the bill that seeks to remove the natural justice option.  I was referring to the comments that Sue Smith as the commissioner had made around how far you can push natural justice and how people can use various mechanisms to their own end.  I was in the middle of reading out what I had written down of what she had said, and it is paraphrased, not word for word.  She was saying it is the only option in a climate of people who believe they can push things on and on as they seek their own natural justice. 

Looking at both aspects of this argument, to remove this clause would potentially create a situation where we do not get a resolution.  I do not think that is what anyone wants; I believe everyone wants a resolution.  You could argue whether this is the most appropriate way, but it seems to me it is the only way to achieve an outcome in a reasonable time frame. 

The other option I mentioned earlier is to let the commissioner continue the fantastic job she is doing until October next year and then run an election at that time, along with all the other elections.  Admittedly, that is 10 months away and the general feeling I am getting from the community is more one of wanting to get on, elect a council and work with the council.  Sue Smith as the commissioner supporting and promoting that approach is significant.  I firmly believe that if she felt the best thing for Glenorchy was for her to continue in that role until October, she would have said that, but she said it is time to move on. 

The member for Huon asked the question about whether she continues to be paid.  If you read the article in the Mercury - but you cannot rely on the Mercury for accurate information, so I am sure the Leader will clarify - that as soon as the election is held and determined she will then move on. 

In the briefing I asked what would happen if the court found in favour of the appeals before it.  I do not know if anyone has been able to confirm whether Twitter is accurate or not over the lunchbreak; I had other commitments and could not check.  It seems it has been tossed out at this stage - and I am getting nods from the Leader's advisers that it is the case - but that does not prevent another claim.  It seems to me that clears the way for this bill to proceed.  Any legislation we pass in this place can be challenged.  On balance, this is an approach that probably is necessary in spite of the other processes that are there, but those other processes have not resulted in the outcome the people of Glenorchy are seeking.

You could argue that the commission report can be released and that under the sections that Mitchell Woolley referred to in his letter to us, which I read out earlier, the process under the Local Government Act could now proceed.  I would like the Leader to address that in her response.  If the report can be released - I am not sure how long it takes the Treasurer to make a determination under the Local Government Act in this regard - but if he can progress through the process, do we need this legislation?  If the way is clear now to release the report, the Minister for Planning and Local Government can assess it and make a determination under the Local Government Act and then see a new council elected, do we need it?  I would like the Leader to address that.  This has been my question all along:  Is this the only way to do it and do we need it?  Is there another way to achieve the same end that does not require this?  It is one-off legislation and I accept that.  It is specifically aimed at Glenorchy City Council because of the dysfunction that has gone on and the challenges there.  They are the key questions.

The commissioner also said it would be important that when the people of Glenorchy make their decision about who represents them, they need to bring the elected members to account more often than the next election.  Bear in mind, as the member for Elwick referred to, that while not being reflected in legislation, but commitments nonetheless, the second reading speech in Hansard suggests they will not go to election again until 2022.  The commissioner herself said, 'If they start behaving badly by October next year, they can be threatened'.  It is not a cast-iron guarantee.

It reaffirmed the importance of checking legislation thoroughly that comes through this place.  A little while ago there was bill looking at code of conduct for local government members.  There was a clause about removing the need for an AGM.  This House voted it down and it was more than just a bloc that did it, because it is the most appropriate annual time to hold the elected members to account.  It was a good decision and shows the value and how well we do our work in this place.  That is patting ourselves on the back.

I have heard both sides of this argument and on balance will support it.  I want to know from the Leader whether this really is needed, now the report can be released and the Minister for Planning and Local Government can undertake his role under the Local Government Act and get on with it that way.  Do we need it?


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