Local Government Amendment (Offences And Other Matters) Bill

Posted on 15. Sep, 2009 in Speeches

I rise to speak in support of this bill. The Local Government Amendment (Offences and Other Matters) Bill 2009 substantially toughens penalties for offences relating to elections and the conduct of councillors. These increased penalties are in line with community expectations, as we can imagine.
A couple of other important themes underpin this legislation. Firstly, the legislation recognises that technology has changed both the method of elections and the way candidates conduct their campaigns — and this is quite significant. Secondly, and increasingly, the standard we are setting for local representatives is far removed from the fictional and scheming Mayor Bob Jelly of Pearl Bay in SeaChange or the real and scheming Mayor Larry Hand of Leichhardt Council in Rats in the Ranks. Rather, the conduct required of elected councillors is more akin to the fiduciary and governance responsibilities of directors of a board, and many members before me mentioned that the overwhelming majority of councillors are decent, hardworking and honest representatives of the community.

The bill will substantially increase penalties in the following areas, and I refer to the second-reading speech.

Firstly, the penalties for bribery in connection with an election will increase to imprisonment for five years or a fine of 600 penalty units; secondly, nominating for a council election when not eligible, interfering with the delivery of postal voting materials, possessing unauthorised ballot papers or impersonating a voter will attract a penalty of two years imprisonment or a fine of 240 penalty units; thirdly, there will be a penalty of five years imprisonment or a fine of 600 penalty units for a councillor who misuses his or her position for personal gain or to improperly harm or benefit another person — and this may include a breach of conflict of interest that is intentionally done for personal gain; and fourthly, there will be a penalty of one year imprisonment or a fine of 120 penalty units for a person who acts as a councillor when not qualified to do so, and provision for a court to order the person to repay allowances for the period when they unlawfully acted as a councillor.

There are several other amendments, particularly around the definition of ‘applicable gift’ and the conflict-of-interest provisions relating to members of special committees. These will make situations such as interacting with not-for-profit organisations or special circumstances, such as those by faced by bushfire relief committees, more workable.

The Scrutiny of Acts and Regulations Committee (SARC) identified several concerns relating to the human rights of individuals with respect to increased penalties. This goes to the heart of the debate. In my view there is also a collective human right relating to the integrity of elections, and SARC appears not to have given sufficient weighting to this point. The right to free, fair and democratic elections is one of the most basic of human rights and freedoms. When we live together in society we receive benefits and protections and in turn we agree to be governed by its rules and decisions. This is legitimised by the right to vote and stand for election.

The hallmark of a Western liberal democratic society is that such a process is fair and transparent. I do not think there is a conflict, but to the extent there is, the collective human right for free and fair elections outweighs the rights of those who are caught rorting and corrupting the process.
The previous government introduced the option of postal voting for council elections. While the debate then was around the principle of whether there should be such an option, some concern was expressed about the integrity of the process, and the debate has now moved on to a focus on that integrity. In days gone by town clerks conducted elections and their main worries were flying voters and dodgy flyers. Consistent with concerns expressed in the early 1990s, when postal voting for council elections was introduced, new technology has made possible new rorts as well as raising a plethora of privacy issues. This bill in this case demonstrates the seriousness of the Brumby government’s intention to deal with these concerns.

I wish to conclude by returning to one matter I referred to earlier in my contribution. The election of representatives at a local, state or federal level is a political process. While state and federal representatives follow wise counsel, they are never divorced from the political processes of implementing election promises, having regard to the decisions of the party room and the pragmatism of decision making such as compromising to negotiate legislation through, say, a hostile upper house. How a political process of electing councillors sits with their corporate and governance responsibilities will be a continuing debate. I commend the bill to the house.

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