Ian Gilfillan, Australian Democrats in the SA Parliament

	Extract from Hansard Legislative Council 6 July 1999

Ian Gilfillan Australian Democrats Member of the Legislative Council	LOCAL GOVERNMENT BILL	Parliament Index
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The Hon. IAN GILFILLAN: In speaking to this Bill, which I am given to understand is the largest piece of legislation in volume that has ever come into this place, I do have a prepared speech which I intend to give to the Chamber but I want to start my contribution by concentrating on what members may see as a side issue to the main bulk of the legislation, and that is the land bank proposal for the parklands. The reason that I put it upfront of my contribution is that, as we have observed, legislation can be changed and it frequently is, and it can quite often go through dramatic changes in the course of several years and certainly in the course of several decades.

However, the history of the parklands is somewhat different and we have found, and a lot of us lament, that where areas of the parklands have been alienated, that is far more inflexible than legislation that may come through this Parliament and far harder to repeal or amend, hence we are suffering now the penalties of bad mistakes and bad decisions in how to use what were dedicated parklands 140 to 150 years ago, and it is imperative that we do not expose ourselves to the same irresponsible misuse of parklands area. On the surface, the proposal in the land bank scheme is that there will be a minimal reduction of so-called alienated land in a transaction from 1:1.1.

This is the sort of ratio of supposed benefit in actual land area. But, to use an analogy that came to me when I was thinking about it today, it is rather similar to saying to someone from whom you have cut off and taken their ear, `I will give you your ear back if you let me chop off your finger.' It is sort of like, `I am doing you a good turn in exchanging what I took before for something that I will take now.' Honourable members must understand that when that finger is taken, or that swap is done, it will never be reversed, because the trade will mean that an area, supposedly no longer needed by the Government as an alienated area, will be swapped for an area on which there will be a development. Development can cover an enormous range of projects and, obviously, they will be projects of substance, with material impact on the area and, once these projects are completed, as we have seen with the university and other hard fabric developments, they are never rolled back.

The Hon. IAN GILFILLAN: I've got more than one finger. The Hon. Terry Roberts, I am certain, is taking this matter a lot more seriously than his interjection might indicate, because I know that he profoundly cares for the parklands. This is a very much Johnny-come-lately amendment. I believe that it was an attempt by some well-intentioned people to do something, but it was so misguided in its original concept, and now its implementation, that, I repeat, it is the most dangerous piece of legislation relating to the parklands, or threatened impact on the parklands, that has been before us while I have been in Parliament—and that includes the Grand Prix.

I now return to the more mundane text of my speech regarding the Bill. The Bill with which we are dealing today is the culmination of more than 12 months' discussion, consultation and negotiation. I received my copy of the Local Government Bill consultation draft more than a year ago. There followed the negotiation draft and then the Bill, which was submitted to Parliament and amended in the other place, before finally reaching us here.

While I am more than uneasy about some aspects of the Bill (to which I will return in a moment), I wish to pay tribute to the process that has led up to this debate. The process of consultation and negotiation that has taken place with respect to this Bill has been far greater and more comprehensive than for any other Bill that I can recall. The Minister is to be congratulated for taking the time to be thorough, for patiently consulting and revising the Bill and for not trying to rush the first draft through Parliament, as happens often with so many other Bills. I only hope that other Ministers follow this example and allow the community and interested parties the same opportunity to comment on legislation as has been allowed with this Bill.

Having said that, I now register my disappointment at the Government's overall plan for local government in this State. This rewrite of the Local Government Act is characterised by the approach taken by conservative Governments in Victoria in 1994, Tasmania in 1993, New Zealand in 1989 and then the UK in 1974. The approach is based on the proposition that local government will be more effective when controlled by central Government and generally directed from the centre.

The language used to sell this proposition is wrapped in terms such as `accountability', `efficiency', `collaboration' and `partnership'. However, it extends the powers of the Minister and, therefore, the Executive Government. By scanning through the Bill, I have identified 111 separate discretions that this Bill allocates to the Minister, either as personal discretions or opportunities to issue regulations.

543 By `discretions' I mean the Minister's ability to exercise his authority and make critical decisions. There are a further 16 discretions in the Local Government (Elections) Bill, making 127 that I have found. I am not sure whether I have found them all, but the 127 that I have identified have been listed on my local government page on the Internet. Is this important? Does it matter? Undoubtedly, there is a role for the Minister in being a mentor for local government, but that role should not be as large, powerful or intrusive as this Bill seeks to give the Minister. Why not? To answer that question we must consider why we have local government at all. There is a constitutional guarantee of the continuance of local government in this State. Section 64A of the South Australian Constitution Act provides:

. . . local governing bodies are constituted with such powers as the Parliament considers necessary for the better government of those areas of the State that are from time to time subject to that system of local government.

Better government is the stated goal according to the Constitution Act. That is not much guidance. What is better government? To me, better government reflects better things about our society: for example, nurture, respect, cooperation, collaboration and trust. These are things that we all acknowledge are aims of a civilian society, yet they seem to be lacking in the political process at State and Commonwealth level. Australians are profoundly disillusioned with politics. They do not believe there is much nurture, respect, cooperation, collaboration and trust between them and their elected representatives.

This is partly because there is not much dialogue between citizens and their government. There is not much opportunity for people to be in touch and communicate with their politicians from whom they feel far removed. We cannot do much to change that perception overnight. However, we can do something to protect, preserve and foster better government and better democracy—at least as far as local government is concerned—in our consideration of this Bill. In fact, it is in local government, local associations and service organisations where we are most likely to find people who have a real sense of community. These people are keen participants in the life of their neighbourhood. They have a sense of shared responsibility, of civic community—so different from the political community of Parliaments—which spills over into the quality of their civic government as distinct from parliamentary or political government.

At its best, local government entails a sense of civic community where citizens act together. They share values, common institutions, and set collective priorities through local, transparent and public processes whilst protecting and promoting the public interest. This is called local democracy. It is about dialogue, debate, consultation and differences of opinion. It is only after the various shades of opinion are invited, heard and considered that a truly democratic decision can be made. Every decision that is taken by local government using this process in consultation with the local community is a decision which reinforces the notion of a civic community. It is a decision of shared responsibility and local autonomy.

In contrast, every decision that is taken by a centralised Minister or Executive Government (remote from the community it serves) is a decision which undermines this notion of shared responsibility, civic community and local autonomy. It is a decision which undermines democracy and which, therefore, undermines good government, at least as far as the local community is concerned.

It is in this light that I urge members to examine, as have I, each of the 111 discretions referred to the Minister in this Bill. Ask yourselves in respect of each ministerial power whether it truly serves democracy, whether it will lead to better government, or whether it has been included so that the Minister or the State can direct local government to achieve their own centrally motivated ends. Of course, there is a legitimate role for the State Government in directing local government. However, the extent of that role needs to be limited if we are not to undermine local democracy and a sense of civic community.

The Hon. IAN GILFILLAN: I will come to that. The interjection is worth while within the scope of where local government should enjoy its own autonomy. In the first instance, it should account to the people who elected it, as do we to the people who elect us, but within a structure which is transparent, open and answerable. However, I appreciate the interjection because I do think it leads into an analysis of what, at the end of the day, will be the nature of the local government entities that come through after we have gone through this particular process. The legislation will determine for quite a long time the character of the local government in South Australia. I got quite profitably diverted.

The Hon. IAN GILFILLAN: That is okay. Where the State is to intervene in local government, the policy reason for each such intervention needs to be clearly defined and understood. Where we endorse an interventionist power in this Bill, we need to be able to fully justify it. When we undermine local autonomy at all, as sometimes we must, then we need to be clear about the goal we have in mind and that we regard the goal as somehow more important or persuasive than the goal of local autonomy and `civic' responsibility. I have identified three fundamental goals which I regard as overridingly more important than local autonomy. Those goals are democracy itself, a sustainable environment and public accountability. When the implementation of local autonomy conflicts with any of these, I have no hesitation in opting for these greater goals. I will deal with each of them in turn.

First, the most fundamental goal to protect is the goal of protecting local democracy itself: that is, the ideal that the people making local decisions in local government should be only those freely and appropriately chosen by the local people whom they represent. Many of us may take that for granted. It is, after all, the only feature of local government which is specifically mentioned in our Constitution Act. However, the requirement for councillors to be `elected' is not an entrenched part of the Constitution Act. It can be removed merely by absolute majority of the members of each House of Parliament. In contrast, the continued existence and powers of the two Houses of this Parliament are entrenched and cannot be altered without a referendum.

In his second reading speech in the other place, the Minister for Local Government said:

This Bill seeks not to fetter councils unnecessarily, but to prescribe. . . boundaries. . . the protections which we the people require. . . in the area of local government. In that way it is very similar to a Constitution Act, such as the one which governs this Parliament, and it should be as carefully considered and as difficult to alter as our own Constitution Act is.

I wonder whether the Minister really meant what he said on that occasion. If he did, then he should have been moving the Local Government Bill as an amendment to the Constitution Act, or inserting into this Bill a provision which would entrench democracy and autonomy for local Government, as the Constitution Act entrenches it for the State Parliament.

There are no such provisions in this Bill, so it is hard not to assume that the Minister's speech on that occasion was simply rhetoric. Be that as it may, I give notice that several of the amendments I will be moving (both to this Bill and to the Local Government (Elections) Bill) are designed to promote, protect and preserve real participative democracy. When the goal of `better democracy' conflicts with the implementation of local autonomy (as it does occasionally in this Bill), I will be supporting the goal of democracy.

Secondly, the goal of a sustainable environment deserves recognition in this Bill, as in all aspects of human endeavour. It is a notable omission from this Bill. While `sustainability' is mentioned occasionally, in its context that one word may be interpreted as meaning merely economic sustainability. My amendments will seek to insert requirements for councils to take heed of ecological sustainability in making their local decisions. It should be an important part of every council's roles, functions and objectives. Ecological sustainability should not be merely an option or a luxury. The continuation of our existence on earth, our children's future, depends upon it. It is a goal which cannot be subverted.

545 Having addressed these three overriding goals (democracy, environmental sustainability and public accountability), I turn now to the very heart of local government's reason for existence, and that is the goal of local autonomy. As I have mentioned before, the reality is that under this Bill local government is not autonomous. Not only is it perennially under the thumb of this Parliament as constituted from time to time, with no protection in the form of a rigid constitution, but also and more objectionably it is under the thumb of the Minister of the day and the Executive Government of the day.

Most of my proposed amendments are aimed at minimising the Minister's capacity to subvert local autonomy. I cannot see the justification for the following injunctions in the Bill: any council or group of councils wishing to establish a subsidiary must first get the approval of the Minister; all council tenders, codes of conduct and codes of practice must be consistent with the principles or requirements in ministerial regulations; the Minister may exempt some matters from the provisions requiring councillors to declare a conflict of interest; a council's budget must be reconsidered during a financial year when required by ministerial regulations; when council cannot sell land to recover rates in arrears, it can apply to the Minister to get title of the land, but the Minister is not obliged to give it, although the Minister can take the land for the State Government instead; councils' powers to make by-laws can be widened or narrowed in ministerial regulations; the constitution and rules of the Local Government Association cannot be altered or revoked without the approval of the Minister; a council's subsidiary cannot sell an asset without the approval of the Minister.

These are just a few examples of the 111 occasions throughout the Bill where the Minister can dictate to councils on matters that are, in my view, within a council's responsibility. In respect of each of them, I challenge the Government to explain what greater good it is seeking to achieve by attempting to subvert local autonomy. I have closely examined what this Bill seeks to achieve and I have made clear my intent. On 17 June I distributed copies of my proposed amendments to this Bill. Although there are 13 pages of amendments, only two of them are lengthy: the 50 or so others are simple, straightforward and aimed at the specific goals I have mentioned, that is, achieving greater levels of democracy, accountability and ecological sustainability.

I wish to thank the many people who have assisted me in this process. I express my appreciation to the Local Government Association, particularly Brian Clancy, Wendy Campana and the President, Rosemary Craddock. Other groups who have made a significant input include the South Australian Institute of Rate Administrators, Messenger Newspapers, the Environmental Defenders Office, the Ombudsman (Eugene Biganovsky), the Australian Services Union, the South Australian Retirement Villages Residents Association, the Local Government Community Services Association, and the Civil Contractors Federation; and I have also been assisted by David Mallan of Aldgate.

One person who has modestly not put his name forward for me to acknowledge is my research assistant, Shane Sody, who has worked tirelessly and very efficiently in analysing the legislation, getting across it, understanding it and helping me to evolve the amendments which I have foreshadowed. I conclude by indicating that I would be happy to discuss with any member who wishes it any of the amendments that are on file. Having recorded the important qualifications in the second reading contribution, I indicate that the Australian Democrats support the second reading.