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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
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Legislative
Council |
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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
Parliament Index |
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LOCAL GOVERNMENT BILL
DISCIPLINARY PROCEEDINGS AGAINST COUNCILLORS, COMMITTEE MEMBERS
| Debate on the Local Government package
of Bills. i.e. took place in the Legislative Council over two weeks: from 27 July to 5 August 1999. For ease of reference on the Democrats web site the debates have been separated into individual pages, each page containing an edited transcript of only one aspect of the total package. This page covers only the Democrats moves to amend provisions for disciplinary proceedings against councillors and committee members. For an index of other topics covered in the Local Government Bills, see the Democrats Local Government page, or the 1999 Budget Session Index |
Line 26—Leave out `270' and insert:
62 or 74
Line 29—Leave out `or 270' and insert:
, 62 or 74
It is probably of interest to the Committee to realise that these amendments are forward consequential on a later substantial amendment to clauses 62, 74, 266 and 271 relating to the disciplinary proceedings in regard to councillors who may be accused of dishonest or some other unacceptable behaviour. I am not sure, Mr Chairman, whether you will give us some advice because the clause provides: If a person—If we are successful in later amendments, that is no longer a significant number: the number becomes 62 or 74. The dilemma, as I see it, is that, if we move this amendment now and it is successful (which it may well be on the numbers) and later down the track we deal with a substantive amendment and are not successful, we will have to revisit it. We need your advice, Mr Chairman. Do you invite us now to debate the major issue, which will then be determined by this relatively minor amendment?(a) at the time of election or appointment to the office of a member of a council is disqualified to hold that office (see section 270 of this Act. . .
The Hon. DIANA LAIDLAW: I may be able to help. I appreciate the dilemma of the Hon. Mr Gilfillan but, since his amendments were placed on file (with identical amendments from the Labor Party), the Hon. Mr Cameron has moved amendments to this clause and equally to the substantive clause 62. The Government will be supporting Mr Cameron's amendments. We will be voting against the Hon. Mr Gilfillan's amendments, so he need not worry about them being passed and there being a dilemma later.
The Hon. IAN GILFILLAN: In fact, that was extremely helpful, as one would expect from the Minister. It probably means that we will not waste time debating the substantive issue now, but I will still continue with my amendments because they are linked to an argument which I will put later. I indicate that I will not call for a division if I lose on the voices. The Hon. T.G. CAMERON: SA First opposes the amendments. I move: Page 52, line 26—Leave out `section 270' and insert:sections 62 or 270
The Hon. T.G. ROBERTS: The Labor Party supports the Democrats' amendments because they are identical to ours and, if the Democrats' amendments are defeated, we will withdraw our amendments.The Hon. T.G. Cameron's amendment carried.
The Hon. T.G. CAMERON: I move: Page 52, line 29—Leave out `or 270' and insert: `, 62 or 270'. Amendment carried. Progress reported; Committee to sit again.The Hon. T.G. ROBERTS: I indicate that the Labor Party will not proceed with its amendments up to clause 74, on the basis of the preceding debate. To simplify matters and make progress easier, we will support the Hon. Mr Cameron's amendments to that point.
Clause passed. Clauses 57 to 61 passed. Clause 62.The Hon. IAN GILFILLAN:I move:
Page 57 after line 6—Insert:I am conscious that we need to facilitate progress as best we can by simplifying the procedure. My opinion is that there appears to be substantial support for the amendments to be moved by the Hon. Terry Cameron; therefore, I am unlikely to be successful with my amendment. So that I have an opportunity to speak to it and not be ruled out of order, I have moved it. I have had a chance with my research staff to look at the Hon. Mr Cameron's amendment. The Bill describes two types of offences to which council members and members of committees and subsidiaries may be liable. They are dealt with separately, one lot in clause 62 and the other in clause 74. The lot in clause 62 are offences of failing to act honestly, failing to act with reasonable care and diligence, making improper use of information to gain an advantage and so on. Clause 74 is concerned only with failing to declare a conflict of interest.Maximum penalty: $10 000 or imprisonment for two years.
Although the Bill treats these two areas as distinct and different offences, the Democrats take a similar attitude to all of them: we seek to ensure that all these offences are dealt with only as criminal offences needing to be proved beyond reasonable doubt. The Government's position in amendments on file is that all these offences should be dealt with as civil matters needing to be proved on the balance of probabilities, although this would not prevent criminal charges being laid in a serious case by relying on different provisions in the Criminal Law Consolidation Act—the offence of abuse of public office.
Although we disagree with the Government, we recognise that it has had a consistent position. The Democrats and the Labor position on this is also consistent in the treatment of the various offences. But the series of amendments now being put forward by the Hon. Terry Cameron are not consistent, in my opinion. I am sure that the Hon. Terry Cameron will have an opportunity to explain, but for some reason he is giving quite different treatment to the offences in clause 62 as opposed to the offences in clause 74. Under the Hon. Terry Cameron's amendment, failing to declare a conflict of interest will need to be proved only on the balance of probabilities, but failing to act honestly and with reasonable care and diligence, making improper use of information for personal gain and so on will need to be proved beyond reasonable doubt. If the Hon. Mr Cameron is assuming that offences of one type will always be more or less serious than offences of another type, I invite him to explain to the Committee why he makes that assumption. The Hon. T.G. Cameron interjecting: The Hon. IAN GILFILLAN: Well, he can explain why he has not made that assumption. It is an open and free world to communicate in Committee. Our position is that offences of all these types need to be assessed on their merits by a court assessing all the circumstances of the occasion. For the Parliament to say that some offences should be assessed beyond reasonable doubt and some on the balance of probabilities is to set up, in my view, a false and unnecessary dichotomy, the practical effect of which will be that, when an offence is alleged, lawyers on both sides will try to juggle the facts or attempt to do deals to get the offence dealt with under one set of provisions rather than the other. This is not in the interests of justice nor in the public interest: it ought to be up to the court to deal with all these types of offences in a consistent manner with a consistent set of provisions, including a consistent burden of proof. To my mind, that ought to be a criminal standard of proof, because I do not want to discourage people from volunteering to serve in local government by leaving them open to be prosecuted under the lower civil burden of proof. My feeling is that it is onerous on people who offer to serve in council to be vulnerable to actions which could be entered into more readily on the lower level of culpability and offence and ability to be proven, whereas no-one in my opinion who offers to serve in any sphere or category should be free from prosecution for a criminal offence. Who does want to protect anyone from what could be argued in a court as a criminal offence? Certainly, we do not.The background philosophy of a series of Democrats amendments that I have on file is that we believe we limit the number of occasions and the areas in which a councillor is likely to be taken to court, and that would be on the basis that there was a substantial case that a criminal act had occurred and that they would not be liable to be taken to court on a civil matter, which would be entered into on a much lighter degree of evidence and for a minor matter. So, having made that position clear, I believe it would be to the advantage of the Committee if I followed the lead of the Hon. Terry Roberts and indicated that I will not be moving any of the amendments that relate to that matter to save the time of the Committee. Having moved that amendment, I indicate that I will not be moving my further amendments to clause 62.
The Hon. T.G. CAMERON: I move:
Page 57, after line 15—Insert:Maximum penalty: $10 000 or imprisonment for two years.
(5) If a person is convicted of an offence against this section, the court by which the person is convicted may, if it thinks that action under this subsection is warranted, in addition to (or in substitution of) any penalty that may be imposed under a preceding subsection, by order do one or more of the following:
(a)require the person to attend a specified course of training or instruction, or to take other steps;
(b)suspend the person from any office under this Act for a period not exceeding two months;
(c)disqualify the person from any office under this Act;
(d)disqualify the person from becoming a member of a council, a committee of a council or a subsidiary of a council for a period not exceeding five years.
(6) If a person is disqualified under subsection (5)(c), the office immediately becomes vacant but proceedings for a supplementary election to fill the vacancy (if required) must not be commenced until the period for appealing against the conviction of an offence against this section has expired or, if there is an appeal, until the appeal has been determined.
(7) The provision of this section extend—
The Hon. IAN GILFILLAN: The Democrats support the amendment. It is identical to one we have on file. The Hon. DIANA LAIDLAW: The Government supports the amendment. Amendment carried; clause as amended passed.(a)to committees and to members of committees established by councils as if—
(i)a committee were a council; and
(ii)a member of a committee were a member of a council; and
(b)to subsidiaries and to board members of subsidiaries as if—
(i)a subsidiary were a council; and
(ii)a board member of a subsidiary were a member of a council.
On 4 August 1999, the House of Assembly voted to further amend these disciplinary provisions.
For the general duties to at all times "act honestly," and "with reasonable care and diligence" in "performance and discharge of official functions and duties" the penalties (up to $10,000 and imprisonment for two years) were removed.
On 5 August 1999, the Legislative Council agreed to the change.
