Members of the community, councils and councillors regularly contact the Inspectorate seeking advice or information. Some enquiries raise issues that fall outside the Inspectorate’s jurisdiction and the Inspectorate refers these enquiries to other agencies where appropriate. Many contacts from the general public are referrals from other state government agencies and sector representative bodies.
The Inspectorate receives allegations about offences and breaches under the Act and has a responsibility to assess all complaints as part of its role. Complaints staff initially assess whether the allegation is within the Inspectorate’s jurisdiction or if it should be referred to another responsible authority. Complaints are then subject to an initial action assessment to substantiate the allegation(s) forming the basis of the complaint and investigated to determine whether it is a breach or offence under the Act.
The Inspectorate works to a timeliness measure for the complaints function, with the target of receiving and acknowledging all complaints within five working days.
There were 272 complaints accepted for assessment by the Inspectorate in 2019–20. This was lower than the previous year’s complaint volume and as discussed earlier, may be attributed to the impact of the pandemic on potential complainants and usual council complaints processes.
While complaints are a main driver of investigations, the Inspectorate may launch an own motion investigation into any potential breaches of the Act, or related to a council or council operations. An ‘own motion’ investigation is where the Inspectorate investigates a matter without receiving a formal complaint and may be due to information received by other methods, such as media reporting. During 2019–20, 56 investigations were completed—a reflection of the significant amount of smaller or less time-consuming investigations and testament to the effort of staff involved.
Note: The 2019–20 period does not include election complaints for the 2020 council elections.
Under the Act, the Chief Municipal Inspector has powers to require the production of documents, provision of reasonable assistance, or require a person to appear for examination on oath. In 2019–20, the use of the powers was approved on 22 occasions either to obtain documents, require assistance or examine individuals with information relevant to an investigation.
The powers were used to examine 46 individuals during this period. This included examinations at Yarriambiack Shire Council of 32 depot staff—arising from one request to use reasonable assistance provisions—and 13 staff and councillors, also arising from a single request for reasonable assistance.
Prosecutions and other proceedings
The Chief Municipal Inspector has powers to prosecute offences under the Act which are initiated in the Magistrates’ Court. The decision to prosecute requires consideration of whether there is a reasonable prospect of conviction and having determined that there is such a prospect, it is in the public interest to proceed. The Chief Municipal Inspector may also certify the failure of a person to comply with a requirement of the Chief Municipal Inspector to the Supreme Court.
The decision to prosecute requires consideration of whether there is a reasonable prospect of conviction and, having determined that there is such a prospect, it is in the public interest. While most prosecutions relating to campaign donation return disclosures were completed in 2017–18, two additional candidates were brought before the courts in 2018–19 and 2019–20.
There were two prosecution cases in 2019–20, including:
- The County Court upheld four charges of misuse of position following an appeal by former Murrindindi Shire councillor Chris Healy in late October. The outcome reinforced the importance of the role of councillor and the serious consequences—for council, the community and the councillor themselves—of improper use of information by councillors.
- Wyndham City Council candidate Joh Bauch was charged with making and using false documents during the 2016 elections. The four-day hearing was due to begin on Monday 11 May 2020. Due to the impact of COVID-19 on court processes, the matter was adjourned to 7 December 2020 at Sunshine Magistrates’ Court. At the time of writing, this had been further adjourned to 6 July 2021 at the same court.
Warnings can be issued for matters where a prima facie breach of the Act is substantiated but an alternative to a prosecution is considered to better serve the public interest. Four warnings were issued in 2019–20. This included two warnings given to councillors at Gannawarra Shire for breaches of interest return provisions.
Complaints data gained over three years (2016–2019) provided some insights into the conduct of elected councillors.
The Inspectorate identified that conduct-related issues peaked in the third year of their term at about 20 per cent, excluding the anomaly of election year complaints in 2016–17.
During the first year in office, data shows many complaints related to councillor conduct during elections and issues such as use of mobile phones or emails for electioneering purposes. In the latter half of the first year, councillors have undergone initial induction training or refresher courses and are dealing with decisions and information related to the council plan, strategic resource plan and budget.
Complaints increase in the second year for various reasons including:
- personality clashes
- matters before council
- political affiliation
- capability or capacity of elected representatives
- perceived or actual power imbalance
- information or actions of administration
During the third year, complaints are at a peak, but intervention mechanisms such as the councillor code of conduct, informal discussions, and mediation or arbitration, may start to have an impact on councillor behaviour.
These are key timings in the cycle that council staff can be aware of and support the addition of periodic training to the calendar and reminders to councillors about the role and their responsibilities to the community.
Following complaints related to the behaviour of councillors and other matters over an extended period, Chief Municipal Inspector David Wolf recommended the Minister for Local Government appoint a Monitor pursuant to section 223CA of the Local Government Act 1989. The appointment was made to ensure good governance around processes and statutory decision making within the council.
Municipal monitor Yehudi Blacher’s report found clear evidence that governance had collapsed in Whittlesea City Council and recommended the council’s dismissal.
In addition, the report found that:
- the council’s deep divides and personality conflicts had rendered it dysfunctional
- councillors failed to provide stability of senior leadership, employing five CEOs in five years and spending more than
- $500,000 on internal legal disputes
- councillor behaviour had not been consistent with the Councillor Code of Conduct, causing significant harm to the council’s administration and reputation
Whittlesea Council was dismissed on 21 March 2020, one day after the Local Government (Whittlesea City Council) Act 2020 received Royal Assent. This legislation provided for the dismissal of the council and appointment of administrators until the October 2024 general council elections.
Among the events that led to the appointment of a Monitor, and ultimately the dismissal of the council, was an allegation of serious misconduct against councillor Ricky Kirkham. The Chief Municipal Inspector applied for a councillor conduct panel to make a finding under section 81B(1B)(c) of the Local Government Act 1989 in February 2020. The application was withdrawn after Cr Kirkham resigned his position shortly afterwards.
Council depots are repositories of a considerable amount of plant, equipment and consumables which are used by employees to undertake civil works, parks and recreation works and other duties. Poor management of physical resources held by councils presents a risk of fraud and corruption.
At Yarriambiack Shire, a number of allegations were raised with the Inspectorate and were subsequently proven.
These included works undertaken by staff on private properties, inappropriate use of council equipment, unauthorised sale of plant and equipment, and leasing arrangements between the council and depot staff members without formal contracts being executed.
In the report published in November 2019, then Chief Municipal Inspector David Wolf said: “Our work focused on specific allegations where community assets and resources had either not been properly managed or were used to the benefit of individuals, not the community as a whole.”
While the investigation presented challenges for the council, the Inspectorate was “encouraged by the willingness to improve and the assistance [of] administrative and operational staff.”
The Inspectorate found:
- a council that had not kept pace with the requirements and expectations of councils as a contemporary organisation and management at the time was complacent
- policies and rigour around community assets and resources were insufficient
- many of the issues found in this investigation had the potential for a negative financial impact on ratepayers and residents of the shire
In response to the investigation, Mayor, Cr Graeme Massey and Chief Executive Officer, Ms Jessie Holmes stated: “Yarriambiack Shire Council is committed to rectifying the deficiencies identified and demonstrating a stronger commitment to the management of critical areas of Council that the community expects.”
The council commenced making improvements as the investigation progressed and put together an action plan in response to the final report. There were many facets in the resulting report that provide recommendations for improving accountability and transparency of contracts, employment practices and general processes at other regional and metro councils.
Reviewed 17 December 2020