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.