On this occasion I want to address the following matters:
The role of a councillor – an extension of what I had to say on this subject previously;
The role and oversight of the General Manager; and
Delegations of functions by the governing body to the General Manager.
The role of a councillor:
Below is an excerpt from the table I provided with my commentary on 31 December – being of section 232 of the Local Government Act 1993 (LGA), which sets out the role of a councillor. The complete table provides a comparison between particular sections as they were prior to 22 September 2016 and now – following an extensive (but first phase only) review of the LGA by the NSW Government. In my 31 December commentary I referred to some of the significant changes that have been made to the LGA, and which in my view could be succinctly described as regressive.
As a reminder, since 23 September 2016 council no longer has a charter. In its place are a set of ‘guidelines and principles’ described in motherhood language that lack any firm commitments. No longer must council achieve outcomes but rather ‘do its best’ according to these guidelines and principles. In that way, the state government, which, through the Minister for Local Government, is responsible for local government performance, is set free from having to explain local government non-performance. In this new regime, it is the mayor in particular, and the governing body (the councillors), who have been saddled with the hard-edged responsibilities.
Possibly the most egregious of the wrongs committed in these amendments (that I have come across so far) – and the competition for that place is fierce - is that which gags a dissenting councillor. It requires each councillor to toe the line, to “uphold” the decisions of the governing body - being the decisions of the majority of councillors. I refer to section 232 (1) (f) of the LGA, spelt out in the table below: “to uphold and represent accurately the policies and decisions of the governing body”. This requirement breaks new legal ground in Australia. David Shoebridge, MLC, has described it as almost certainly being unconstitutional. My own research on this very much supports that view. This requirement flies directly in the face of the freedom of expression, of normal political discourse, which underpins a democratic society. If you are keen, you can read all about it, in the form of the Second Reading/debate of the Local Government Amendment (Governance And Planning) Bill 2016 in the NSW Legislative Council. This took place over two days, on 9 August and 24 August 2016. It makes for interesting reading You can also refer to a leading case on this constitutional matter of freedom of expression, Nationwide News Pty Ltd v Wills 1992 HCA, to appreciate just how out of touch the NSW Government is with this fundamental aspect of democracy as it is practised here in Australia. Following are some relevant excerpts from this case:
Note: This is the link to the Constitution
In an attempt to recover from David Shoebridge having pointed out the unconstitutionality of the requirement of s232(1)(f), the Parliamentary Secretary, Catherine Cusack, had this to say, on 24 August 2016:
So, in spite of the clear wording of 232(1)(f), the NSW government is backing down to describe it as no more than a requirement for councillors to “act with integrity”! Well then, why wasn’t that the wording? But we all know that to uphold something is to support it and to defend it. One astute councillor asked me “How then may councillors submit a rescission motion (to have a decision rescinded, overturned) if when doing so they will clearly not be upholding the decision they are seeking to overturn?” Section 232(1)(f) is not only at odds with the Constitution but also with the Act that it has now been placed in – quite a mess.
I look forward to seeing the first defiant councillor who will publicly speak out against a decision he or she is opposed to, even though it will have been made by a majority of the councillors – and how that might be dealt with, by the governing body itself and/or the Office of Local Government. We need a test case.
The role and oversight of a General Manager:
So, we can see that, according to the LGA, the General Manager is no longer responsible for the “efficient and effective operation of the council’s organisation”. The functions (h), (i) and (j), which existed prior to the amendments, certainly require the GM to undertake the normal duties of a CEO as far as the organisation is concerned but there is no longer a requirement that those duties be carried out efficiently and effectively. One can only wonder why this change has been made. In any event, this requirement – of efficient and effective operation – is contained within the Standard Contract for General Managers – at clause 6 of Appendix 3 of the OLG’s publication Guidelines for the Appointment & Oversight of General Managers, July 2011. This is an interesting document that I am sure Beagle readers will pore over and which will no doubt be revised by the OLG to take account of the recent amendments to the LGA.
Concerning the removal of the requirement for a State of the Environment Report, in her Second Reading Speech, Catherine Cusack, the Parliamentary Secretary advised the Legislative Council that:
Peter Primrose, the Opposition spokesperson on Local Government had this to say on the matter:
We also see from a comparison of the ‘before and after’ of the LGA, that the General Manager is now specifically required to work directly with the mayor and the other members of the governing body in deciding on the best ways for council to engage with the community - community consultation - not just in relation to strategic plans and programs but also in relation to council’s policies. I expect that council staff will soon bring before the new council proposals on a community engagement framework which, in its draft form, involves a Decision Making Tool: an algorithmic approach to deciding on when, how and at what level council should engage with the community. What has been missing from the proposals to date is a proper recognition of the fundamental importance of consideration of the social impact of those proposals or policies which are the subject of the community engagement exercise to be undertaken. I am hopeful that staff have re-visited this issue and that councillors will soon see a Community Engagement Strategy placed before them, for their approval, which places the matter of social impact front and centre in its engagement framework.
The additional (new) requirement of the General Manager to “ensure that the mayor and other councillors are given timely information and advice and the administrative and professional support necessary to effectively discharge their functions” is of critical importance and brings the LGA in line with the OLG’s own guidelines, as set out in the document referred to above: Guidelines for the Appointment & Oversight of General Managers. This document, incidentally, is one of a number issued by the OLG pursuant to section 23A of the LGA. Of particular relevance is sub-section (3) which requires that: ”A council must take any relevant guidelines issued under this section into consideration before exercising any of its functions” (emphasis added). Council is not obliged to adopt the guidelines but must at least consider them.
There have been instances over the years in which I have seen, first-hand, general managers either directly or through their senior staff not complying with this duty, resulting in councillors being uninformed or not properly informed in a timely manner and which has lead to decisions that I regard as flawed, if not plain wrong. There have been no consequences for these non-compliances.
And on the need for the “timely” production of information, the requirement at s335(b), above, that the General Manager ensure “the implementation, without undue delay, of decisions of the council” also places a time limit within which the General Manager – normally through senior staff – must complete a task. What might be meant by “undue delay” is open to debate but by any standard, a six month delay in implementing a decision of council is surely very much an ‘undue delay’. Such a delay was revealed during the recent pay parking debate, at the 13 December meeting, during which some councillors insisted that there had been insufficient information provided to enable an informed decision. In fact all necessary information had been provided to councillors several days before the meeting and most of that information came in the form of a report to council presented at the meeting of 8 March 2016, which provided quite detailed financial analyses of the pay parking question. That report was provided in response to a motion that was carried at the council meeting of 25 August 2015 at which Councillor Innes presented a Notice of Motion: “That a report be prepared for Council consideration that examines the impacts, both positive and negative, of removing paid parking in the Batemans Bay CBD. “
Now, a six month delay in implementing a decision of council is surely a case of “undue delay”, being in breach of s335 (as it reads both before and after the amendments). But, as always, there were and are no consequences. Without consequences for poor performance there can be no improvement.
Oversight of the (performance of the) General Manager has been given special, positive attention with the amendments to the LGA.
We see from section 226 of the LGA that the mayor now has the responsibility and authority, “in consultation with the councillors, to lead performance appraisals of the general manager”, and the governing body as a whole is to “determine the process for appointment of the general manager by the council and to monitor the general manager’s performance”. Just how the General Manager’s performance ought to be monitored and how such appraisals ought to be acted upon if action is indeed necessary, are questions that are yet to be answered to the community, as far as our own council is concerned. The community – being the employers, or shareholders, however one wishes to see the relationship – is denied knowledge of just what the General Manager’s performance criteria (KPIs) are and by what methodology the performance is measured against them. As I have previously advised, there will be more on this matter in the future. Delegation of functions to the General Manager All of the authority provided by the LGA and other legislation relevant to local government rests with the governing body – the mayor and the other councillors. Of course, it would be nonsense to think that nine councillors could do all that needs to be done to oversee the shire. And so, almost all of the functions enabled by the relevant legislation needs to be delegated by the governing body to the General Manager, who in turn sub-delegates to subordinate staff as necessary. This process is permitted by section 377 of the LGA. At page 11 of the OLG’s Guidelines on General Managers the following brief description of the delegations process is given:
So, before the middle of this year we should expect the current Register of Delegations to be reviewed – and possibly having some regard to the way they are organised at the Bega Valley Shire Council: Parts 1 and 2. However, the delegations for the previous term of council were not reviewed at any time during that term. Those delegations, for the term 2012 to 2016 – as provided by the previous council (2008 to 2012) - were simply adopted, in ignorance of the process, by the then new council with a few other delegations ‘approved’ – including one to a staff member other than the General Manager, which is not permitted. Worse than that, in February 2013 council passed a resolution to review the delegations but that was not acted upon! Refer to page 6 of the 26 February 2013 meeting agenda and to pages 9 and 40 of the minutes of that meeting. The agenda and the minutes reveal that a very thorough Notice of Motion put by Councillor Schwarz for a review of the delegations, was watered down by Councillor Pollock – but nonetheless a resolution to review the delegations as a matter of priority did result. Again, there have been no consequences for this non-compliance. Let us hope that a proper review is undertaken during this term - and in the very near future.