Oversight flawed

MARK McLERIE is a member of the City of Melville Residents and Ratepayers Association. In this week’s THINKING ALLOWED he reflects on a recent State Administrative Tribunal determination to uphold a decision that Melville mayor Russell Aubrey had improperly used his office to cause detriment to a local resident, a minor breach of local government regulations. 

MELVILLE mayor Russell Aubrey was found to have improperly used his office to cause detriment to a local resident by the State Administrative Tribunal last week.

Whilst it is great mayor Aubrey has been held to account for his impropriety, this matter highlights some serious concerns with the state’s framework for overseeing councillor conduct; an essential assurance to a resident’s confidence in local government.

Mayor Aubrey’s impropriety centred on a resident’s concerns with the city’s poor response to serious building defects he had identified at a Bicton strata complex where he has an interest.

When the resident raised it with the mayor, mayor Aubrey criticised him in a widely-circulated email that was found to have been detrimental to his reputation.

The building issues were subsequently escalated to the state’s building regulator and orders issued to the complex’s other owners for remedial works costing in the order of $80,000.

The resident immediately submitted a complaint to the local government standards panel about the statements contained in mayor Aubrey’s October 2016 emails.

But it wasn’t an easy journey.

The first concern with the panel’s complaints process relates to the complexity.  We doubt most people understand the local government (rules of conduct) regulations 2007, and the local government department certainly does not provide any support in this regard. Just making a complaint presents a barrier for the average resident, let alone constructing a complaint that may actually succeed in getting through the opaque and legalistic process.

The second concern is that it has taken over 18 months to get closure so far; not swift resolution.

Initially in August 2017, 10 months after the complaint was lodged, the standards panel found mayor Aubrey had breached local government code of conduct regulations and ordered him to publicly apologise to the resident and fellow councillors for his impropriety.

However mayor Aubrey sought a SAT review of the panel’s decision. Subsequently, on June 7 this year, SAT confirmed the finding but downgraded the punishment to ordering notices of public censure of mayor Aubrey’s impropriety to be placed in local newspapers.

The third concern, arguably the most important, is the lack of procedural fairness for the resident. As the standards panel has no investigative powers it required the resident to provide all available evidence with the initial complaint. That in effect was the end of the resident’s involvement. The panel may ask for additional information, however there is no requirement for any further dialogue.

Whilst the respondent to the complaint, in this case mayor Aubrey, had the opportunity to respond in detail to the complaint, the resident had no rights to respond to any submissions made by the mayor; as is the equitable practice in normal legal proceedings.

The resident, by chance, discovered that mayor Aubrey had sought a SAT review of the penalty set by the standards panel. He sought to intervene in the proceedings in order to respond to mayor Aubrey’s evidence, but the SAT rejected that request.

This case highlights that the current legislation is not providing an efficient, effective or fair means of policing the conduct of our councillors, the people we entrust to govern and oversee the transparency, accountability, probity and performance of our local governments.

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