Last week may not have been the Victorian local government sector’s ‘finest hour’.
The failure of some councils to review their Councillor Codes of Conduct within the mandated period, and the failure of some councils and councillors to follow the strict letter of s 76C of the Local Government Act 1989, led the Local Government Investigations & Compliance Inspectorate to conclude that a number of councillors were liable to be disqualified on 1 September this year (when s 29(1)(ea) of the Act becomes operative). There was then the spectacle of the State Government publicly committing to save the local government sector from itself, by introducing the Local Government Amendment Bill to amend s 76C.
Comparatively little attention has been paid to the role of the Inspectorate, and the State Government more generally, in what has become the ‘Code of Conduct fiasco’.
Only those working within councils can truly assess whether the extent of guidance material from the State Government about the revised Councillor Code of Conduct requirements was adequate. They are also better placed to make judgements as to whether the Inspectorate adequately communicated its conclusions to them ahead of media reports about councillors being disqualified and administrators being appointed.
What we can say is that, from a strictly legal perspective, aspects of the Inspectorate’s and State Government’s conduct have been baffling.
The Inspectorate’s Report on council’s compliance with the revised Councillor Code of Conduct requirements was incredibly ‘black and white’. For example, councillors who strayed slightly from a declaration to ‘abide by’ their council’s Councillor Code of Conduct were adjudged to be non-compliant and liable to be disqualified.
There was, and remains, a very credible argument that substantial compliance with the s 76C requirements was enough – that strict compliance was unnecessary. The Inspectorate’s failure to even address this was both surprising and disappointing. So too was the Chief Municipal Inspector’s reported insistence that those councillors who were to be disqualified on 1 September were still eligible to nominate in the October election.
A councillor who is disqualified under s 29(1)(ea) is ineligible to contest any municipal election. This is clear from the text of s 29(1)(ea) itself. Any State Government observations to the contrary are based on a strained interpretation of the provisions and are at odds with the Explanatory Memorandum to the Local Government Amendment Bill which refers to disqualified councillors being ineligible to become candidates at the October election.
When sponsoring the Local Government Amendment Bill, the State Government had an opportunity to not only amend s 76C but amend s 29(1)(ea) as well. This would have removed the potential for injustice. A councillor who fails to make a declaration that he or she will abide by a Councillor Code of Conduct should hardly be prevented from ever contesting a municipal election. Such a penalty appears to be disproportionate, and arguably inconsistent with the implied constitutional right of political communication.
There was also an opportunity to revisit other aspects of s 76C. For as long as the provision remains in its current form, there appears to be no reason why a councillor cannot, after initially declaring to abide by a Councillor Code of Conduct, withdraw his or her declaration. Likewise the section says nothing about the position of a councillor who fails to make a declaration to abide by a Councillor Code of Conduct that replaces the Councillor Code of Conduct which is reviewed (and perhaps revised) in the four month period following the October election.
Perhaps the State Government is banking on a new Local Government Act being in place before such controversies arise. The potential for by-elections and for councillors unwilling to sign up to some standards of conduct may make this wishful thinking.