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Inquiry Panel’s Preface

The Inquiry Panel (Inquiry) into the City of Perth (City) is the largest, most complex and most extensive inquiry so far conducted in Western Australia under the Local Government Act 1995 (LG Act) or its predecessors.

Like similar inquiries which have preceded it, this Inquiry is concerned with the failure to provide good government, the reasons for that failure and what can and should be done in the future to ensure good government.

The Inquiry’s reporting obligations require it to make findings on the matters in its Notice of Appointment of an Inquiry Panel (Terms of Reference). Those Terms of Reference are broad and far reaching.

As the State’s capital city, the local government of the City should be a model of good government. It should set the benchmark for other local governments in the State.

Unfortunately, the suspension of the City of Perth Council (Council), the establishment of this Inquiry and this Inquiry’s findings tell a very different story.

A local government, as the term suggests, should fairly and faithfully represent the community it governs. It should do so in the best interests of the community as a whole, not just a part of it.

The LG Act recognises the importance of the demarcation between a local government’s Council and its Administration.

In broad terms, the former should decide what should be done for the community as a whole and the latter is responsible for implementing those decisions in a practical and day-to-day sense.

This essential separation of roles ensures that the community as a whole has a say in how the local government represents its interests. It does so through its council members, who form the Council which makes decisions and sets the direction of the local government.

The Administration of a local government is made up of a variety of skilled and experienced employees, who are best equipped to ensure that the community gets what it needs and deserves. The Administration implements the decisions of the Council and provides services to the community.

Each of these two groups of people which comprise a local government, the Council and the Administration, have different skills, mandates, powers and functions. Their roles are different and should not be confused. The employees in the Administration should not try to usurp the decision-making role of the Council, and council members should not interfere in the day-to-day work of the Administration.

The conduit or connection between the Council and the Administration is the Chief Executive Officer (CEO). This pivotal and sometimes difficult role, if done well, should maintain that important separation and ensure that the employees of the local government properly implement the decisions of the Council. It should also ensure that good governance is applied to the functioning of both the Council and the Administration.

Essential to good government is a set of clearly articulated, understood and accepted rules governing its affairs. If the rules are properly understood and adhered to, as a result of being accepted by those which they govern, the scope for ignoring and breaching them is considerably reduced. The result is good governance.

The City, its council members and its employees have in recent times been no strangers to controversy. The City has for a number of years been criticised as being dysfunctional, inward-looking and often not serving the best interests of its community. Its aspirations are described in the City of Perth Act 2016 (CoP Act), but it has not in truth measured up to the objectives in that Act.

It is clear from the information and materials considered by this Inquiry that many of the problems which beset the City, its Council and its Administration stemmed from an inappropriate and unhealthy culture.

Regrettably, the culture of the City has been characterised by self-interest, complacency, lack of accountability, lack of transparency and a lack of effective leadership. These traits have provided fertile ground for greed, incompetence and mismanagement to flourish. Some council members and some employees alike have been allowed to put their own interests ahead of the interests of those who they should be serving, namely, the community of the City.

It is this dysfunctional culture, which in large part caused the decline in the way in which the City was governed, and which ultimately led to the suspension of the Council of the City on 2 March 2018 and the establishment of this Inquiry.

In order to report on the matters in its Terms of Reference, the Inquiry has had regard to the evidence given in the private and public hearings it has conducted and the other materials which it has been provided with, and obtained, during the course of its work.

In investigating the matters within its Terms of Reference, the Inquiry has obtained and examined over four million documents and held private and public hearings with 104 witnesses over 125 days. Those investigations and examinations have enabled the Inquiry to make over 250 findings.

It is important to note that the Inquiry has the powers of a Royal Commission, but it is not a Royal Commission. Nor is it a Court of law. It is an administrative body whose task is to inquire into and report on those matters in its Terms of Reference.

The powers and processes of this Inquiry are different to those of a Court of law. It has extensive coercive powers and its ability to inquire into matters without some of the usual protections afforded to persons in a Court of law are an important point of distinction.

With the exception of those matters where the Inquiry is permitted by its Terms of Reference to make findings about unlawful conduct, it is not the role of this Inquiry to make findings about whether any particular conduct contravenes the law, or act in a way which would prejudice subsequent legal proceedings of that kind. It is an administrative body, not a judicial one.

The Inquiry cannot decide whether evidence given in its hearings would support a finding of a contravention of law if the same evidence was later adduced in criminal or civil proceedings.

The findings made by the Inquiry have no binding or enforceable effect.

The Inquiry does, however, have the power to refer any matter it has investigated to another agency for it to consider whether or not criminal or civil proceedings should be brought.

It has been important for this Inquiry to rigorously examine the matters in its Terms of Reference. Notwithstanding, it has at all times sought to strike the right balance between a proper and robust examination of those issues and fairness to those who were the subject of examinations.

While it is not bound by the rules of evidence, the Inquiry has in its inquisitorial and reporting roles adhered to the principle of treating all who have appeared before it fairly and without fear or favour.

In reaching its findings, the Inquiry has been guided by the Briginshaw principles. In forming its conclusions about what has happened or not happened, what has been done or not done, it has adopted the following approach:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.^a

One of the main functions of this Inquiry is to inquire into and report on matters in its Terms of Reference for the purpose of making recommendations aimed at restoring and ensuring the future good government of the City. This will be achieved by its recommendations.

Footnote

1. Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).