Intro
The State Government continues to progress major reforms to the system of local government in Western Australia.
In November 2021, the Minister for Local Government announced a package of reform proposals. These proposals were based on a significant volume of previous work, including reviews and investigations, public consultation, Parliamentary inquiries, and reports to government. The proposed reforms are based on six themes:
One key element of the proposed reforms is the establishment of the Local Government Inspector, as part of a reformed system of early intervention, effective regulation, and stronger penalties.
This summary provides further detail on the proposed inspector, and how the introduction of the inspector and monitors will bolster oversight of local government in Western Australia.
The Local Government Act 1995 (the Act) establishes local governments as largely independent and autonomous organisations, who make decisions in the best interest of all people within their district.
Critically, the Act establishes that every local government is governed by a council of elected representatives. The council can establish policies and make important decisions, including about service delivery, expenditure, and the setting of rates. Councils also employ the local government’s Chief Executive Officer (CEO). The CEO manages the local government administration, which implements the policies and decisions made by the council.
Councillors are publicly elected and are directly accountable to residents and ratepayers for their decisions. Ordinary local government elections are held every two years.
The Act and associated Regulations contain a range of requirements for how councils must make decisions, including that:
The State Government has already implemented a range of measures to bolster oversight of local government in Western Australia. For instance, in 2017, the State Government introduced a new requirement for all audits of local government financial statements to be overseen by the Office of the Auditor General. This has provided all ratepayers with greater assurance that public money collected by local governments is accurately accounted for.
While councils can independently set policies and make decisions, everyone in local government must comply with State legislation.
Local governments in Western Australia are subject to oversight under several Acts of Parliament, with different agencies and authorities being responsible for managing different types of complaints.
These include complaints about behaviours, and forms of misconduct which may be in breach of legislation. For instance, the Local Government Act 1995 defines certain alleged breaches of the Act that are to be lodged with the Department of Local Government, Sport and Cultural Industries. All elected members and employees of local governments are subject to the oversight the Corruption and Crime Commissions (CCC), and employees of local governments are also subject to the oversight of the Public Sector Commission (PSC). Complaints relating to potential misconduct and serious misconduct can be lodged with those agencies accordingly.
The WA Ombudsman can receive complaints about the fairness of administrative decisions made by local governments.
Several issues with the current system of managing complaints have informed the design of the proposed reforms. These issues include:
The proposed reforms have been designed to address these issues, and to resolve significant issues more quickly within local governments.
This document has been developed to answer common questions on the proposed reforms and provide further detail on how the inspector and monitor will work to resolve potential problems within local governments in Western Australia.
The Local Government Act 1995 currently has limited powers for investigations. This means that in cases where there are significant concerns about issues within a local government, the Department of Local Government, Sport and Cultural Industries may undertake an authorised inquiry.
An authorised inquiry is usually a significant investigation, involving departmental staff going into local governments to collect evidence to inform findings. In severe cases, a Panel Inquiry (similar to a Royal Commission), can be called.
Inquiries are highly disruptive to the operations of the local government, which can impact on the services delivered to ratepayers and local businesses, and impact the employees of the local government. Inquiries can also be costly and time-consuming, meaning that any issues identified in the Inquiry can take several months to address and enabling the dysfunction and chaos to continue for a long period.
A consistent finding of many recent authorised inquiries has been that dysfunction within local governments is often caused by a breakdown in professional working relationships.
Authorised inquiries can also find complex organisational problems in local governments, which may take significant work to address. Local governments that have organisational issues related to resources and capability may find it particularly challenging to address these problems. By being able to work within local governments, monitors will be able to both identify and assist local governments to form and implement plans to fix complex organisational issues.
The new Local Government Inspector will coordinate the management and resolution of problems in local government by targeting resources to investigate and address breaches of the Local Government Act 1995 and associated Regulations. The inspector will be tasked with identifying and resolving any significant underlying issues which may be causing non-compliance.
The inspector will oversee a range of new powers aimed at more quickly addressing problems, early intervention, and investigations where necessary.
The inspector will be able to:
Many issues in local governments may relate to relatively simple causes, such as personal disputes, breakdowns in working relationships, and technical or administrative issues.
The focus on monitors is to assist local governments to resolve problems at an early stage to avoid ongoing dysfunction and prevent the need for costly investigations.
The inspector has been based on a significant body of work and consultation and has been partly modelled on similar agencies established in other States, including in Victoria and Queensland.
There have been several recommendations to the Western Australian Government regarding a proposed Office for Local Government Oversight, including the:
In 2009, the Victorian Government established the Local Government Inspectorate, which is responsible for investigating alleged breaches of the Local Government Act (Victoria).
The inspector is overseen by a Chief Municipal Inspector. In 2015, further reforms established municipal monitors, who can be appointed by the Minister to assist local governments provide good governance and compliance with the Victorian Local Government Act.
In 2018, the Queensland Government established the Office of the Independent Assessor to review all complaints about councillor conduct in that State. The Office also investigates misconduct complaints against local government mayors and councillors and, where appropriate, prosecutes those complaints in the Councillor Conduct Tribunal.
The frameworks in place in other States provide practical examples for how a Western Australian Local Government Inspectorate can be structured to effectively manage the resolution of problems within local governments.
The reforms will deliver a much broader range of intervention powers, enabling issues to be identified and addressed more quickly. By establishing a greater range of early intervention powers, the inspector will have more options in how to deal with potential problems within local governments:
The establishment of the inspector and monitors, and the wider system of local government oversight in WA, has been designed to address the issues that can arise in the current system. These include:
The inspector will simplify the process for making complaints. By having clear powers to receive, assess, manage, and refer complaints, the inspector will be able to provide the public with clear advice about how to lodge complaints for specific breaches.
The Conduct Panel is designed to adjudicate cases based on evidence presented by the inspector. With penalties in the Local Government Act 1995 being bolstered, the Conduct Panel will also have stronger powers to apply penalties, including suspending or disqualifying elected members in certain circumstance. Avenues for appeal will be retained.
The Conduct Panel will be made up of qualified and experienced people who will assess and adjudicate on allegations of breaches. While former councillors may sit on the panel, current serving councillors will not be eligible to simultaneously serve on the Conduct Panel.
By enabling the inspector, rather than a Standards Panel, to make findings and sanctions on minor breaches, it will enable these complaints to be dealt with more efficiently and quickly.
Some powers in the Local Government Act 1995 are vaguely defined, without a clear framework for how they should be used. This means that any action or decision based on these powers may result in lengthy legal disputes. In practice, this ambiguity means that the powers have rarely, if ever, been used in the past. It also means that, in practical terms, the main tool for investigating issues has been to undertake a long and costly authorised inquiry.
By establishing the inspector and specific powers for investigations and actions to ensure compliance, the reforms will enable earlier intervention to identify and fix problems within local governments.
Historically, the Local Government Act 1995 has only allowed the Minister for Local Government to suspend or dismiss an entire council where there has been significant, ongoing, and unresolved dysfunction in a local government. In 2018, amendments were made to the Act to provide the Minister with certain limited powers to dismiss individual councillors, in certain circumstances.
Permanently removing a councillor from office is a very serious and significant action. However, temporarily suspending a councillor from acting in their elected office, or temporarily suspending their entitlements for sitting fees, are effective ways to stop ongoing non-compliance, and to deter further breaches. It is important that council members are deterred from continuing behaviours which do not meet community expectations of standards of behaviour.
This is why the reforms have been designed to provide a range of early intervention powers, such as mediation, to assist local governments address breaches.
Under the Local Government Act 1995, the council are the employer of the CEO.
Recognising the critical importance of CEOs to the effective function of all local governments, the inspector will be able to receive complaints and undertake investigations about CEOs.
In doing so, the inspector may:
In cases where the inspector makes significant findings about a CEO, the inspector may provide advice to the council about the options that they may take to address those issues. For instance, the inspector may suggest the council consider disciplinary action or terminating the employment of the CEO.
Many of the reforms have been designed to encourage and facilitate compliance with the Local Government Act 1995, as well as improve record keeping to support faster investigation, identification, and resolution of potential issues in a local government.
For instance, new requirements for the recordings of all council meetings will ensure there is clear evidence of any behavioural breaches or misconduct at meetings.
The standardisation of meeting procedures for all councils will also establish a common convention for managing meetings to ensure consistent standards of behaviour, and provide all Western Australians with the same opportunity to engage with the business of local government decision-making.
Complaints can be made by anyone, including members of the public, elected members and employees. The inspector will provide clear guidance on the DLGSC website to outline where complaints are to be directed too, depending on the type of complaints.