Receipt and First Reading
Bill received from the Assembly; and, on motion by Hon Sue Ellery (Leader of the House), read a first time. Second Reading
HON SUE ELLERY (South Metropolitan — Leader of the House) [11.23 am]: I move —
That the bill be now read a second time.
(Comments and speeches from various members)
HON ALISON XAMON (North Metropolitan) [12 noon]: I rise as the lead speaker for the Greens on the Local Government Amendment (COVID-19 Response) Bill 2020. I note, as I have with all the other COVID-19-related bills, that our capacity to consult on this bill has been severely truncated because of the necessity to try to address a range of legislative measures to deal with the current pandemic crisis. It is recognised that the Local Government Act is full of provisions that require certain things to be done by certain dates or within certain time frames, including what are necessarily long processes, and it is acknowledged that some time frames may not be fit for purpose during these times. This bill is obviously designed as a temporary addition to the Local Government Act while we are under the COVID-19 emergency provisions during the COVID-19 pandemic. I am pleased that this bill contains sunset provisions, which have been mentioned by previous speakers. That is very important and I am pleased that sunset provisions seem to be regularly included in the COVID-19-related bills that now come before us for our consideration. This bill will give the Minister for Local Government new powers to modify or suspend specific provisions in the Local Government Act or the regulations relating to it. Again, those modifications to the act have a built-in sunset clause that will be revoked, at the latest, three months after the day the COVID-19 emergency declaration is revoked. I have been told that it is anticipated that the powers will be used for things such as community access to information; the timing and modality of elections; deferring statutory time frames for items such as budget approvals, which we have had to do in the state Parliament; deferring general electors’ meetings, and those sorts of similar activities. It does not allow the minister to direct a local government to expend its financial reserves to mitigate issues associated with the COVID-19 pandemic. I note that recent changes to regulations have dealt with this. I also note that should the minister use these new powers, the order must be must be gazetted and tabled in Parliament only during the COVID-19 emergency declaration. Therefore, it is a disallowable instrument. I will have more to say about that in a moment.
At the briefing, I asked about the sorts of specific matters that are expected to be dealt with by such ministerial orders and the response I got was that it would be used to defer any election or modifying provisions relating to in-person elections; suspending the need for public meetings, such as the annual electors’ meeting; making provisions that provide alternative access to information for members of the public when council offices are closed due to the pandemic; deferring action against people for unpaid rates or charges; and amending, extending or removing time periods specified in the act for things such as extending the date that budgets need to be adopted. The bill will also give power to a local government to suspend the operation of part, or the whole, of a local law, and that must be resolved with an absolute majority. I recognise that local governments want to be able to respond quickly to the restrictions that they operate within under many of their local laws so that they can provide for business and community needs. Some of these important provisions that they need to get around include the time goods can be delivered to shops, parking restrictions and making sure that restaurants can shift to takeaway options. I note that the bill will not allow a council to modify a law; it will be able only to suspend part of it. As has been said by a previous speaker, that effectively constitutes a change to the law. Again, changes to local laws made under this provision will sunset six months after the raising of the COVID-19 emergency declaration.
Having said that, the Greens have reservations about a number of provisions in this bill. Specifically, we have concerns around the minister’s new powers under proposed section 10.3. Although I have been told the reasons for the intended purpose of the powers, the way the provision is written will enable the minister to have unlimited powers, effectively. It is limited only by what the minister considers to be necessary to deal with the COVID-19 pandemic. The scope by which the minister can determine whether he believes he is able to invoke these powers appears to me to be very broad. How much power is being handed to the minister to modify or suspend things that have nothing to do with COVID-19 but that the minister says are COVID-19-related? I note that the bill relates only to the Local Government Act so the minister has no powers under any planning legislation or town planning schemes. I will make some comments about that because I am getting a fair amount of correspondence on those issues. Although it is clear that the bill narrows the minister’s powers to deal with the COVID-19 pandemic, again, the drafting itself simply uses the words what the “minister considers” is necessary, which provides a lot of room for interpretation. I am concerned that there is very little capacity for Parliament to challenge the minister’s interpretation of what is necessary to deal with the COVID-19 pandemic should any concerns arise about any of the decisions that the minister has made under that guise. Although Parliament, as has been said, can move to disallow ministerial orders, the use of this instrument will potentially occur quite far down the track and via the regular processes, as outlined in the standing orders. Once a disallowance motion is moved, Parliament will not get an opportunity to deal with it for 14 sitting days. Given the current circumstances, there is much uncertainty about what the scheduled sitting weeks will be so we are not sure how far down the track the opportunity will arise when we can challenge a decision if a genuine concern arises about the way those unilateral powers have been exercised.
Apart from a convoluted and drawn-out disallowance process, there is no way to immediately challenge the minister’s decision if we are not confident about the nature of it. I am concerned that the bill will not protect residents from potential abuses of the new powers given to local governments. As I mentioned on the issue of planning, I have been contacted by a large number of residents who are concerned about the Minister for Planning’s letter encouraging councils to fast-track non-controversial development approvals. This concern is based on the definition of the term “non-controversial”. There is a fear—a potentially legitimate fear—that corners will be cut for building and development approvals and the community will be stuck with the resulting built form for years, if not decades.
I note that the recent state of emergency amendments to the Planning and Development (Local Planning Schemes) Regulations have provided the Minister for Planning with the power to grant exemptions to planning requirements for a response to a recovery from the state of emergency arising out of the pandemic. Considering the level of concern that has been raised in my office from people who live in the North Metropolitan Region, most notably, people who are living in the western suburbs, I sincerely hope that the Minister for Local Government is not going to use these extraordinary variations from the principles of good governance to push through anything that is not going to align with the local community’s vision of its own future, as I also hope that the Minister for Planning is not going to do. I recognise that this is beyond the scope of this bill; however, a lot of these concerns are being raised by similar people.
A range of other regulatory changes have, of course, occurred already. Local governments have already started to move in response to the COVID-19-related changes, which was necessary. We have seen changes to our regulations around administration, financial management, functions in general and long service leave regulations. The changes in these regulations, very sensibly, allow councils to bring forward a number of their planned maintenance and construction activities, which ensures that that work can be undertaken at a time of community need. I also note that councils are responding to the calls to finance these works with aggressive application of reserves for borrowing. I understand that the state government has basically put the call out and made it clear that now is the rainy day for which reserves, potentially, have been put aside, and I note that our local councils are, to the degree that they are able to, trying to respond accordingly. However, the culmination of removing requirements for advertising changes for the purposes of funds, or the seeking of loans, combined with substantial delegations to council staff, could easily mean that local communities will not be kept sufficiently apprised of how those funds are being both acquired and used. I think that is particularly concerning when there is a history of concerns being raised with members of Parliament and the minister regarding transparency and decision-making processes at the local government level. I am sure that every member in this place will have at least one council on their books about which residents are constantly raising concerns.
At the moment, the effect of a great deal of the activity in the local government sector is to ensure that local governments can move swiftly to economically support their local communities, and, obviously, I applaud this. The need is very real, and the need to respond in a timely fashion is also very real, but there are risks in that. We are making it possible for ministers and local governments to sidestep some of the basic principles of good governance. This bill and the regulations I have mentioned remove requirements for participation in what transparency exists, and I am concerned that that transparency will almost entirely be in the aftermath of those decisions having been made.
We are ultimately relying on the skill, goodwill and wit of individuals rather than our solid governance structures to minimise the risk of poor decision-making. I want to say that of course I believe that the vast majority of local government staff are up to the task and will do their best to do an excellent job for their communities, but we have to acknowledge that this is far from an ideal way to operate. We have local government elected for a reason, and it is a concern if we bypass those governance processes. When the provisions provided by this bill are used, they will at least be time limited, assuming that the state of emergency is also time limited, and I certainly hope so! It is vitally important that when we remove elements of participation, accountability and transparency, we have a plan to ensure that we are swiftly putting those things back in place.
We are seeing in the legislation and the subsidiary legislation the possibility of multiple emergencies to be declared for COVID-19. We are also seeing substantial moves to expand the discretionary powers of our ministers in response to emergencies. There is already a great deal of unrest and uncertainty in the community about the way the planning and development approvals are taking place under the current structures, so I think it is incredibly important that the relevant ministers, local governments and local government staff consider very carefully the action that they take under this new regulatory regime. We want to ensure that we are not doing anything to aggravate the sense of disquiet that is already very much out there.
(Comments and speeches from various members)
Question put and a division taken with the following result —
(Comments and speeches from various members)
Title put and passed.
Bill reported, without amendment, and the report adopted.
Bill read a third time, on motion by Hon Sue Ellery (Leader of the House), and passed.