The Beagle Editor,
The citizens of this State, who might be aggrieved or dissatisfied by the behaviour and actions of their local council officials, have a major problem. The mechanisms, that were designed and implemented in earlier times to supposedly maintain the integrity of councils and council officials, are now largely either inoperative or ineffective.
Part of the problem lies in the inadequate resources that are now allocated to key watchdog agencies in NSW such as the ICAC and the Ombudsman's Office. Official figures indicate that these two agencies in fact investigate only around 2 – 3% of the total number of complaints that they are receiving from the public each year about the actions of government officials.
The situation is particularly dire for anyone wanting the actions of local government officials to be independently and impartially investigated by the Ombudsman. This is because, in recent times, the Ombudsman's Office has had an arrangement with the Office of Local Government (OLG) for any complaints that the Ombudsman receives about council officials to be redirected to OLG.
The problem with this arrangement is that OLG is also not staffed to a level that would enable it to perform an effective role in policing the 128 separate councils that we have in this State. (These staffing problems were high-lighted at last year's Local Government Conference by the Shadow Minister for Local Government (Peter Primrose) when he said that it would probably now be more accurate to describe the “Office” of Local Government as the “Cupboard” of Local Government.)
Another major problem with this arrangement is that OLG does not have the same investigative powers and, most crucially, the same level of independence from government as the Ombudsman has and OLG officers have often displayed a considerable reluctance to undertake any serious investigation of complaints about the behaviour of council officials. When those officers do sometimes intervene in integrity matters, they tend to take a very narrow legalistic position on what constitutes inappropriate behaviour and give little or no regard to the accepted and recognised basic standards of good conduct and administrative practice that the Ombudsman's Office has set out in its guidelines.
So, with the Ombudsman not an option and in the face of the disinclination of OLG to intervene, aggrieved community members and community groups will usually find themselves with only a council's 'code of conduct' complaints scheme to fall back on in an endeavour to have the actions of council officials 'independently' scrutinised. “Despite the OLG’s decision, SAFE has submitted the complaint to me and as per the council’s Code of Conduct, the matter has once again been referred to an independent external conduct reviewer and the review is underway." Mayor Liz Innes comment to the Bay Post 13th August 2018 “It is a source of frustration to me that this matter has been thoroughly examined by independent investigators multiple times, but once again we’re seeing ratepayer funds used to investigate the granting of a standard event licence.” Mayor Liz Innes comment to the Bay Post 13th August 2018
In the firm view of many (including myself), both the design and administration of the current 'code of conduct' complaint scheme is quite unlikely to provide proper and satisfactory outcomes for the vast majority of complainants.
One of the more serious design flaws is that, although a council is required to establish a panel of independent reviewers to select from, it is exclusively the prerogative of council staff to decide which reviewer will be chosen to investigate any particular complaint – even in situations where it is the general manager or another staff member who has been complained about. Another serious flaw is that, although a multi member panel is required to be established by each council, there is no limit imposed on the number of times any particular reviewer can be selected by council officers to handle the complaints that they receive. That is, there is no requirement to rotate through the panel members. (In fact, it has been recently discovered that both the Eurobodalla Shire Council and the Bega Valley Shire Council appear to have been the using the same reviewer to handle all the complaints that they each have received in recent years!)
There are also many other fundamental flaws in this scheme around issues such as the secrecy of a reviewer's activities and the absence of any right to challenge the outcome of a review, other than on procedural grounds, regardless of the quality or merit of the reviewer's decision. (I will not attempt to detail all of these problems in this letter.)
So to summarise - when it comes to community members and community groups seeking external independent and impartial scrutiny of the behaviour and actions of council officials in NSW -
the Ombudsman's Office has vacated the field,
the Office of Local Government does not have the resources and (often) has no apparent inclination to properly and impartially intervene, and
the 'code of conduct' complaint processes that are provided by the councils have been very poorly designed and are frequently inappropriately administered by council officials.
In a modern constitutional democracy such as ours, the current situation in the local government sector is totally unacceptable. There have to be effective mechanisms in place to ensure the maximum transparency, accountability and scrutiny of the actions of council officials. The community needs to be demanding significant early action on this by our State Government and its agencies.
Archive photo: https://www.facebook.com/pg/SAFEFarSouthCoast