Question On Notice No. 6455 asked in the Legislative Assembly on 8 October 2020 by Mr W.R. Marmion
Question Directed to the: Minister for Local Government; Heritage; Culture and the Arts
Parliament: 40 Session: 1
Question
I refer to the changes to Regulation 9(1) of the Local Government (Rules of Conduct) Regulations 2007, gazetted and tabled in Parliament on 18 August 2020:
(a) What consultation did the Minister or his department undertake with the local government sector prior to tabling this amendment;
(b) Was the Western Australian Local Government Association consulted on the amendment and did they support the changes;
(c) Were any individual local government office bearers or administrative staff consulted by either the Minister, his staff or departmental staff prior to amending regulation 9(1);
(d) What was the reason for changing the wording of regulation 9(1);
(e) Did the Minister or the department initiate the change to regulation 9(1) and when was it first recognised by either the Minister or the department that a change was necessary;
(f) Did the Minister seek legal advice before amending regulation 9(1) and if so who provided this advice;
(g) Has the Minister received any advice or correspondence from any source, either before or since amending regulation 9(1), raising any concerns as to whether it was in conflict with the Local Government Act; and
(h) If yes to (g), what action has the Minister taken to assure himself that the amended regulation 9(1) does not conflict with any provisions of the Act?
Answered on 10 November 2020
(a) Western Australian Local Government Association (WALGA) and Local Government Professionals Australia WA (LG Professionals) were consulted.
(b) Yes and yes
(c) On the basis that the amendment was supported by WALGA and LG Professionals, additional sector wide consultation was not undertaken.
(d) Regulation 9 did not and does not enable a council or chief executive officer to extend the role of councillors beyond the roles provided for in the Local Government Act 1995. Regulation 9 was being misinterpreted, and in some cases deliberately so, to be used as a mechanism to allow council members to be involved in administration tasks. Regulation 9 cannot and should not override the Act.
(e) The Department of Local Government, Sport and Cultural Industries (the Department) sought the Minister’s approval to draft the amendment. Concerns with Reg 9 were first noted in the 2014 City of Canning Inquiry Report. In April 2020 WALGA raised the use of Regulation 9 with the Department based on a decision made by a local government. The City of Perth Panel Inquiry raised concerns with Council interfering in administrative duties. The Legislative Council Select Committee into Local Government Final Report states at Recommendation 26 “The Government clarifies the roles of council and the chief executive officer, and the distinction between governance and operational matters …”
(f) The department received legal advice on regulation 9 from both in-house legal counsel and the State Solicitor’s Office. This advice informed the drafting of the proposed amendment.
(g) Regulation 9 has been identified as a contributing factor where a clear separation between the council and the administration is not maintained. At times, this has been a catalyst of relationship failure between councils and administration that has led to significant disfunction within certain local governments. This was highlighted in the City of Canning Inquiry (2014) and the recent City of Perth Inquiry (2020).
(h) Regulation 9(1) was amended to remove the identified contradiction with the Local Government Act 1995.