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Enquiries
The Inspectorate regularly receives enquiries from community members, councils and councillors seeking advice, information or raising issues that fall outside the Inspectorate’s jurisdiction. Other enquiries received by the Inspectorate are often referred from other state government agencies and sector representative bodies. The Inspectorate endeavours to assist with enquiries where possible.
Complaints
The Inspectorate receives allegations pertaining to offences and/or breaches under the Act and has a responsibility to assess all complaints as part of its role. Investigators initially assess whether the allegation is within the Inspectorate’s jurisdiction. Complaints are then subject to an ‘initial action’, where evidence is gathered to determine whether the allegation can be substantiated. This process will determine whether the allegation constitutes a breach or offence under the Act, if it should be referred to another responsible authority or if there is no breach or offence under the Act.
There were 1,164 complaints accepted for assessment by the Inspectorate in the 2020–21 financial year. This almost tripled the previous year’s complaint volume and is in line with the overall trend of an approximate 11% increase in complaints across the four-year council cycle.
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Victoria held its general council elections in October 2020 amid restrictions on movement caused by COVID-19. The unprecedented conditions led to our office receiving 848 complaints during the election period – a 107% increase on 2016.
Most complaints (78%) were generated by 22 councils while 20 councils generated no complaints. Three councils did not hold elections because they were under administration. A quarter of all complaints related to just three councils: Nillumbik, Stonnington and Wyndham.
Alongside a rise in complaints, we heard anecdotal evidence that the election period was the most toxic and vitriolic election ever held in the state. We saw underhand and unethical behaviour – but it was behaviour which did not breach any laws. We believe there were 2 major factors behind this trend.
In October 2020, Melbourne was coming to the end of a long and tough lockdown. Restrictions on movement to just 5km from home for only two hours per day limited the amount of in-person campaigning that could be done. The lockdown heightened the anxiety of the electorate and provided another reason for people to file complaints against other candidates for breaching restrictions.
In addition, we continued to see the rise in dominance of social media which lead to a 241% rise in complaints about false or misleading material, unfavourable interaction or harassment and abuse. We published a comprehensive report on election complaints in June 2021.
Investigations
While complaints are a main driver of investigations, the Inspectorate may launch its own motion investigation into any matter that potentially breaches the Act. During 2020–21, 51 investigations were completed.
| Reporting period | Complaints | Investigations complete |
|---|---|---|
| 2016-17 (election year) | 576 | 56 |
| 2017-18 | 417 | 39 |
| 2018-19 | 421 | 29 |
| 2019-20 | 336 | 22 |
| 2020-21 (election year) | 1,164 | 51 |
As with the previous financial year, major investigations drew significant resources, and a reduction in staff resulted in a decreased capacity to investigate. These challenges have been offset by an improved initial assessment process, which has enabled complaints to be assessed and either dismissed, referred to other agencies or allocated to an investigator in a more efficient manner.
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We received a complaint that a local developer had commissioned an artist to paint a portrait of a councillor. The allegation was that the portrait was a gift to the councillor and was presented to him at a time when the developer had made an application for a major development. The gift was never recorded on the gift register by the councillor.
We investigated and found the developer did commission the artist and the written agreement between the two parties stated that the portrait of the councillor would be paid for by the developer but would be given to the council. The invoice for about $7,500 was sent to the developer’s development company. In August 2019, the portrait was unveiled by the mayor at the ‘Citizen of the Year’ awards and presented to the councillor. The developer made a planning application to council in late 2019.
We interviewed the councillor under caution. He said that he was not aware of the portrait before the award ceremony. The councillor advised that he did not want to accept it and asked the portrait to be taken to the local history centre. He did not take possession of the portrait.
We also interviewed the mayor at the time who told us that the portrait was a gift to the council, not the councillor. We confirmed that the portrait had been taken to the history centre shortly after the awards ceremony. The developer also denied that the portrait was a gift to the councillor.
We accepted that the donation of the portrait was made to the council and therefore it was not mandatory that the gift register was updated in accordance with s. 81 (7) (e) of the Act. However, a donation by a philanthropist to council and not an individual was not covered by the Act or by any council policy. We recommended that council’s ‘Receiving Gifts, Benefits and Hospitality Policy (2020)’ should be updated to include the gifts to council. Council updated its policy in August 2020.
We were satisfied with council’s response and closed the matter. We found no breach of the Act.
Coercive powers
Under the Act, the CMI has powers to require the provision of reasonable assistance, which may require the production of documents and evidence or require a person to appear for examination under oath. In 2020–21, the use of the powers were approved on 50 occasions to obtain documents or interview people.
We interviewed 28 individuals in 2020–21 and the vast majority of interviews were voluntary. We used our coercive powers once to interview one individual.
Warnings
Warnings are issued for matters where a breach of the Act is substantiated but an alternative to a prosecution is considered to better serve the public interest. During 2020–21, we issued 139 warnings in relation to the council elections, 22 in relation to interest returns and a further three warnings. Warnings are used as an educational tool in making recipients aware of their obligations under the Act and of the consequences for further transgressions.
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Warnings are issued when, on the face of it, a breach of the act is substantiated but a prosecution is not warranted. A warning aims to educate people and help them improve their behaviour.
In 2020–21, a councillor was warned after submitting their primary personal interests return two and a half years late. This was a breach of section 81(2)(a) of the Local Government Act 1989, which requires a councillor to submit a primary interest return within 30 days of election day or 7 days of making the oath or affirmation of the office of a councillor. They are then required to submit ordinary interest returns twice a year.
The councillor explained they were elected via countback and did not have the same induction process as other councillors. As their ordinary interest return was due shortly after they were elected, they thought this was the only interest return they needed to complete.
Our request to the council for provision of all councillors’ primary interest returns prompted the governance staff to have this councillor submit a primary interest return. The councillor was very apologetic and said they would be more diligent going forward.
In another case, the ‘how to vote’ card pamphlet for four candidates contained an error. The card had an example of how to preference each of the candidates. However, it included the number 12 twice and no number 14. If a voter followed the suggested preferencing, it would lead them to cast an informal ballot. This constituted a prima facie breach of section 288(2)1 of the Local Government Act 2020.
The candidates said the error was corrected as soon as they became aware of it and the material reprinted. However, some of the incorrect cards were distributed to the public. We issued five warnings – one to each of the four candidates, and one to the person who authorised the pamphlet.
Footnote
1 Causing, permitting, or authorising to be printed, published or distributed, electoral material that contains a representation of a ballot-paper, which one should reasonably be expected to know is likely to induce a voter to mark the voter’s vote otherwise than in accordance with the directions on the ballot-paper.
Reviewed 01 December 2021