12 Nov 04

Council Code of Governance

The Victorian Government required all local councils to adopt codes of conduct by January 31, 2004. Alpine Shire has recently advertised a draft code of governance, including a code of conduct, for public comment.

I’m very concerned about the draft document and its focus on undermining democratic conventions, particularly the right of public scrutiny.

If people are interested in this topic they should follow these links:

Alpine Shire’s draft code is here (4.6MB);

The State Government’s suggested model code is here under model code of conduct (970kb).

My submission follows:

Thank you for the opportunity to comment on the draft Code of Governance.

I question the extent of this document. The Local Government (Democratic Reform) Act 2003 requires councils to prepare and adopt codes of "conduct" not governance. The code of conduct is meant to set out processes for dispute resolution, procedures for disclosing interests and conflicts of interest, caretaker procedures and "any other matters relating to the conduct of councillors which the Council considers appropriate". This last part is clearly optional.

The department has produced and circulated a "model code of conduct", which I consider to be very good and appropriate. Why hasn’t Alpine adopted this template?

Alpine has taken a much broader view than necessary in respect of governance, and a narrow view in terms of conduct. In doing so, the council is arguably in breach of the Local Government Act, Section 76C (5) which states the code of conduct must not be inconsistent with any Act or regulation. Some of the proposals might be interpreted as being inconsistent with the Local Government Act, section 3C 2(g): "A council must have regard ‘to ensure transparency and accountability in Council decision making’."

If adopted, the code will make it difficult for councillors to fulfil their democratic responsibilities, especially if they’re out of favor with the Mayor or CEO.

I’m concerned the draft code seems to diminish the role of councillors and gives too much power to the Mayor and CEO. As the Mayor is not a directly elected position (by the public), this concentration of power is undesirable.

I don’t believe it’s necessary or helpful to state "the main way of having issues considered by Council is through the forward planning processes".

Forward planning is admirable, but the council should be flexible enough to respond to situations as they arise. There’s been a tendency for Alpine to hide from addressing issues that aren’t in the corporate plan, a master plan or some other such document.

Council’s advocacy role, in particular, needs to be reactive as much as it’s pro-active.

The election of new councillors will potentially result in a change of policy direction. New councillors should have the right to review and amend any existing plans; indeed they have a mandate if they campaigned for change.

I oppose this statement: "Councillors should not raise issues for the first time at Council meetings and seek decisions without having consulted with the Mayor and the CEO beforehand."

The council meeting is an appropriate forum for councillors to raise issues and seek decisions. It’s also a debating chamber and effectively serves as the "parliament" of the Alpine Shire. It’s a legitimate part of the democratic process that an elected member may, for tactical reasons, not wish to telegraph his or her policy, argument, request or
issue.

I’m concerned at the statement that councillors should only raise issues with senior managers, and not other staff. I accept that formal requests for information or action should be channelled through senior management, but there may be simple questions that can be appropriately put directly to general staff. For example, if a councillor wants to know about registration costs for a dog breeder he or she could talk to the receptionist or the ranger. This commonsense approach is not provided for in the draft code, which is unnecessarily prescriptive.

The draft code actually gives fewer rights to councillors than it does to the general public! If adopted, it could be used by the Mayor and CEO to weaken representative democracy in the Alpine Shire.

I strongly oppose the section related to briefing sessions and urge the council to not adopt the proposed text.

This statement is contrary to democratic principles: "In order to fully explore options, issues and information needs, it is necessary for briefing sessions to be closed to the public." I also believe it’s a breach of the Local Government Act for any council to formally meet and not follow normal meeting procedures. If the meetings are informal they would not have agenda and these proposed rules would not have been put forward.

There is no justification for briefing sessions to be closed to the
public. I accept the need for councillors to be briefed on issues, but group briefings should be public except on matters that are commercial in confidence or related to staff. The Local Government Act provides for councils to meet in camera for such discussions and I believe the same provision can be applied to briefing sessions.

Briefing sessions have in practice at Alpine become the main forum for discussion among councillors and managers. It’s therefore important for openness and transparency that these meetings be open to the public.

Despite the statement that briefing sessions are not a substitute for debate in open council, that is the effect. Briefing sessions weaken the accountability of the council.

This statement concerns me: "Councillors should therefore participate fully in briefing sessions. It is their responsibility to raise all their information requests and any other matters that are necessary for them to make up their minds."

A councillor might feasibly choose to not participate in briefing sessions unless they’re open to the public. I’m aware of this happening at Cardinia Shire, where briefing sessions were also held. A councillor refused to participate in them and changed the undemocratic culture by having all relevant discussions take place in public.

Councillors should not be restricted to raising requests for information at briefing sessions, especially while these forums are closed to public scrutiny.

The sentences covering implementation of decisions should be removed or significantly altered. I disagree that "post-decision dissent" weakens the Council in the eyes of the community. There is no basis given for this statement, probably because there isn’t any. I believe the opposite is true. Dissent is evidence of a robust democracy.

A councillor may have personal views, or a constituency with strong views, and should have the right to represent those views publicly even if they contradict those of the majority.

I question the tone of the proposed code of conduct. While the principles are reasonable, the detail is open to interpretation and therefore potentially misinterpretation or manipulation. I don’t believe it’s practical for a councillor to keep private and public interests completely separate. They will overlap at times.

"Undermining council in pursuit of political aims" is subjective. What one councillor considers legitimate debate may be seen by another as undermining the council.

It seems the intent of this document is to govern the Alpine Shire as a junta, with little regard for democratic principles and conventions.

Dissent and opposition are hallmarks of democracy. It’s unthinkable that a Member of Parliament should be excluded from expressing personal or party views in any forum of choice; however that is the thrust of this draft code in relation to elected councillors.

I support the proposed caretaker procedures, which is now a requirement of the Local Government Act, but suggest that morally the caretaker timeframe for significant decisions (eg appointment of CEO) should be longer than the legal requirement, up to three or four months before the calling of nominations.

It’s unclear to me what authority the code will have, if it’s adopted. It’s described in the text as "a series of fundamental statements about our governance principles", but there is nothing about who will interpret the code and enforcement; what action, if any, can be taken against breaches of the code, or against councillors who refuse to sign it.

I suspect the purpose of this code is for the Mayor, CEO and senior management to exert greater control over the actions of councillors, no doubt referring wayward individuals to the code when there’s an apparent breach.

I’m concerned the intent of this document seems to be about muzzling debate and dissent, despite some throwaway motherhood remarks to the contrary.

This document ought to be rejected in its current form.

Again, I refer council to the State Government’s "model code of conduct" and commend this as the code that should be adopted for Alpine. It enshrines the basic principles of respect and decency, with none of the obsessive paranoid detail that appears in Alpine’s draft.

Thank you for the opportunity to comment. I have no objection to these views being made public. I hope my views will be listened to and considered, although the cynic in me believes the outcome has been predetermined; indeed that this draft code merely serves to enshrine existing bad practice.

These articles might be of interest:

• Code of Governance
• Shire council governance
• Alpine electoral review

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