Guardian Express Weighs In

The current issue of the Guardian Express has some interesting items on local government so-called reform - aka forced amalgamations - except that Col Pot and Homer Simpson now deny that they are even amalgamations - they are 'boundary realignments'. 

The twin editorial comments ('Council shoots itself in the foot' and 'Residents need to focus on focus', 25th February) are timely and very much to the point. Perth MLA, Eleni Evangel, also gets the point about timing and the importance of experience ('Bad timing for change says MLA').

The seven elected members of Vincent Council who voted not to renew the CEO's contract (itself a quaint piece of terminology, avoiding the perjorative term 'sack') have an average of two years local government experience - a total of 14 years between them. Even combined, this is much less than the time Vincent has been in existence and John Giorgi been at the helm of the Administration.

The City of Perth has made it very clear that it does not want the whole of Vincent, just the most valuable assets - a stance reiterated in the same paper ('Mayor campaigns for change') so the majority of Vincent residents are not going to get a fair deal if the State Government insists on Vincent becoming one with the City of Perth.

But Lisa Scaffidi and the City of Perth clearly don't understand that the proposal to take over only a part of Vincent cannot proceed as it leaves the majority of Vincent unviable yet not subject to any other proposed change.

However, we should not lose sight of the fact that the City of Vincent does not have to disappear - even the Vincent Council has now come out and stated that its preferred outcome is for Vincent to remain as it is. The so-called reform process and the Government's proposals are so lacking in substance that the whole house of cards is highly vulnerable to court challenges.

All Vincent councillors who have been willing to communicate with me in the process (and that was a disturbingly small proportion of them) told me that their preferred position was for Vincent to remain as it was - but that they had 'been persuaded' by the then Mayor, Alannah MacTiernan, that there was no possibility of achieving that.

I was a lone voice arguing for Vincent to be retained at that time. At least Vincent Council has now stated that that is its preferred outcome, but it seems still to be trapped in its original negative mindset. The community meeting that will be held on 9th March is focussed on the importance of Vincent/Perth being a merger of equals. Yes, this is important, but not at the expense of foregoing the possibility, however, remote, of avoiding the City of Perth altogether.

Thank You Simon O'Brien, MLC

All credit to Simon O'Brien, MLC, for breaking ranks and stating that the emperor is engaging in verbal gymnastics and is being tricky with words. 

His words are very heartening to those of us who have been opposing the process by which this Government has been trying to force local government amalgamations while claiming it is not doing.

We know that Barnett couldn't get removal of the Dadour poll provision through his own party room. Simon O'Brien has made clear what many of us already knew - that having failed to change the rules, Barnett and Simpson are now bending those rules to breaking point in a vain attempt to get their own way. 

We can only hope than when they fail in that, too, they will take their bat and ball and leave the rest of us to get on with life unencumbered by their bullying presence.

Now That's Loyalty!

At the Vincent Council Meeting tonight (Tuesday 25th February) there was a great turnout of staff in support of a petition, signed by 138 of them, asking Council to reconsider its decision not to renew CEO, John Giorgi's, contract.

The City of Vincent has 192 staff, according to the 2012-2013 Annual Report. That's a staggering 72% who signed the petition - higher if you allow for those on leave or otherwise unavailable to sign.

That type of loyalty has to be earned over a long period of time - and has to have a much stronger basis than simply 'he's the boss'.

From talking with some of the staff outside the meeting, I was left in no doubt that the petition was a genuine reflection of staff views and that none of them had seen the dismissal coming. And make no mistake, this was a dismissal. However Council might dress it up as 'simply' non-renewal of contract, in any other area of employment law this would be called 'constructive dismissal'.

http://www.workplaceinfo.com.au/resources/employment-topics-a-z/constructive-dismissal

Too Little, Too Late

First mooted publicly at the Annual Meeting of Vincent Electors on 3rd February 2014. Now we are advised, in rather leisurely fashion (I only received notification indirectly), that there will be a 'Town Hall Meeting' five weeks later - just four days before submissions to the Local Government Advisory Board close.

This gives very little opportunity to generate more submissions to the LGAB, so the City of Vincent is, for the second time (the first being the 'One-In, All-In' campaign that didn't recognise any possibility of keeping Vincent as it was) throwing in the towel.

Yes, of course, if there is a merger it should be an equal one - but don't start off by effectively conceding that there will be a merger.

But it will be too late, anyway. As mentioned in the preceding post on this blog, I believe it is highly likely that Homer Simpson will put Commissioners in to run the City of Vincent - and, after the sacking of the CEO, he will do so sooner rather than later.

Who Needs Enemies?

We shall probably never know the real reason why Vincent Councillors voted, on 11th February, to dump CEO John Giorgi.

We shall never know why seven elected members with an average of just two years experience on Council (and only two with more than two years) chose to make the Administration leaderless at this critical time.

Only Cr John Pintabona saw the strategic issues.

What was the straw that broke the camel's back? The residents and ratepayers of Vincent deserve to be told why the CEO who has been responsible for successfully implementing the often confusing directions and decisions of Council for nearly 20 years has suddenly become unsatisfactory.

Whatever the reason, it would need to be a very strong one to justify dumping the CEO at this time. The next 18 months were going to be difficult enough, for elected members and Administration alike, without having a CEO who knows he doesn't have the support of his Council. Alternatively, if John Giorgi goes early, the City Administration will initially have a temporary leader and then a new one who will need to come up to speed on all the issues facing the City.

But fear not! The cavalry, in the form of Homer Simpson, will 'come to the rescue'. Our esteemed elected members have given the Minister for Local Government a golden opportunity to put Commissioners in place to run the City of Vincent until October 2015 - effectively disenfranchising the people who elected them during the crucial period of local government amalgamations.

With 'friends' like that, who needs enemies.

If Local Governments Were Companies…

A company seeking to take over another company is required to give "security holders and directors" of the 'target' company "enough information to assess its [the takeover proposal's] merits" ('A Guide to Takeovers in Australia' by King & Wood Mallesons).

Contrast this with the lack of information in the Barnett/Simpson proposals for local government amalgamations. And it is not sufficient to claim that information has been provided to Councils (if indeed it has - which I doubt), as the Corporations Act requires that information be given to securityholders as well - the 'securityholders' of local governments are surely the ratepayers and electors.

So not only don't these proposals comply with the Local Government Act, they also don't comply with the requirements of analogous legislation in a similar area of governance.

Why are the requirements for takeovers relevant? you might ask. The answer is that Col Pot and Homer have deliberately framed all except the G7 as takeovers by one local government of all or parts of others in order to try to avoid the Dadour poll provision of the Local Government Act.

Why Not Meet Real People?

Oh to be a fly on the wall! The Local Government Advisory Board meetings with local governments should be 'interesting' given the divisions emerging between local governments as a result of Barnett and Simpson putting them in impossible positions.

But if the LGAB is serious about consultation, it should meet with the people who would really be affected, not just their representatives. If the recent statements/decisions of Subiaco, Fremantle, Kwinana and Melville are any guide, elected representatives are not the repository (and I hope I use the correct word here - unlike TA) of all knowledge and wisdom.

Interesting, too, that the LGAB is meeting with 'local governments that could be affected by proposed changes', not 'would be affected'. If the LGAB doesn't yet know which ones would be affected by the various proposals then there isn't much hope for the process.

Playing Into Col Pot's Hands

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This is all playing into the hands of the WA Government. Rather than criticising Cockburn for using reputable consultants to develop costs - which at least provide a basis for debate - we should be hammering Barnett and Simpson for not providing estimates of the cost of amalgamations in their proposals to the Local Government Advisory Board.

The Local Government Act requires that proposals clearly identify the effects on affected local governments - surely the costs of the change (and the benefits) are critical effects. In not providing cost (and benefit) estimates, the WA Government proposals clearly do not meet the requirements of the Act. If the proposals from Fremantle, Kwinana and Melville do not estimate the costs and benefits, then they do not meet the requirements of the Act, either.

Sounds like the whole house of cards could collapse for lack of foundations.

To Poll or Not To Poll?

The Government has configured all but the G7 (western suburbs) proposal in a way that it claims takes the Dadour Amendment out of play. 

The Dadour poll provision in the Local Government Act states that the poll provision is triggered "Where the Advisory Board recommends to the Minister the making of an order to abolish 2 or more districts" - but the Act does not define 'abolish'.

Nor does the Interpretation Act 1984 define 'abolish'.

My understanding is that in such circumstances, the next recourse is to the Minister's Second Reading speech in Parliament. 

The original Dadour Amendment had its second reading as a Private Member's Bill in the Legislative Assembly on 2nd May 1973 (http://www.parliament.wa.gov.au/Hansard/hansard1870to1995.nsf/vwMainBackground/19730502_Assembly.pdf/$File/19730502_Assembly.pdf, pp1300-1302, but, as is so often the case with Private Members' Bills, lapsed. In his second reading speech for the Bill, Tom Dadour said: "The Bill provides that the recommended union [0f two or more municipalities] be approved by a referendum conducted within the preceding 12 months in each municipality involved in the proposed union. Further, the Bill provides for a poll of at least 40 per cent of the enrolled electors"

The poll provision was incorporated, with slightly different provisos and in rather tortuous legalese, in the Local Government Amendment Act, 1975 (http://www.slp.wa.gov.au/pco/prod/FileStore.nsf/Documents/MRDocument:9327P/$FILE/LoclGovActAmAct1975_00-00-00.pdf?OpenElement).

But the key to today's situation is the Local Government Act 1995 (http://www.slp.wa.gov.au/pco/prod/FileStore.nsf/Documents/MRDocument:6744P/$FILE/LoclGovAct1995_00-00-00.pdf?OpenElement) which is where the undefined term 'abolish' comes in. 

In his second reading speech in the Legislative Assembly (http://www.parliament.wa.gov.au/Hansard/hansard1870to1995.nsf/vwMainBackground/19950831_Assembly.pdf/$File/19950831_Assembly.pdf, pp7547 - 7553), the then Minister for Local Government said:

"The Bill includes also provisions for the use of polls, including indicative polls to evaluate community attitudes and binding polls by which the advisory board recommends the amalgamation of two or more districts. The provision for binding polls on amalgamations reflects the high degree of community concern about such issues."

This statement is of relevance here for two reasons:

- First, there is no mention of abolition or one council taking precedence over another.

- Second is the then-Minister's acknowledgment of the "high degree of community concern" about amalgamations and  his specific mention of "the provision for binding polls on amalgamations".

Subi's Strategic Screw-Up

It is not clear to me why Subiaco Council even felt the need to do anything other than put in a submission opposing the G7 proposal.

The G7 proposal is the only one that, as it stands, triggers the Dadour amendment poll provision - others are likely to require legal challenge in order to do so.

The Subiaco community has clearly said it wants to remain Subiaco. Those who do support change are split and there is no substantial support for any one of the alternatives.

The Dadour amendment was put in place precisely to protect Subiaco, in the first place.

All this suggests that Subiaco would be well able to generate the 50% turnout needed for a Dadour poll to be binding and that the result would be overwhelmingly against G7.

By putting in alternative proposals, whether  under 'perceived duress' or not, the Subiaco Council has helped legitimise the forced amalgamation agenda while having no chance that either of its proposals will be recommended by the Local Government Advisory Board. These proposals are too late and would require substantial consequential amendments to other proposals that it is not within the power of the LGAB to recommend.

Et Tu Subi - What Has Subiaco Council Been Smoking?

I'm absolutely gobsmacked that, at this late stage and knowing the Subiaco community's strong support for retaining Subiaco, the Subi Council can make this sort of submission to the LGAB. By falling into the same trap as Vincent did initially of making a submission/proposal under duress, Subiaco Council is giving succour to the Government in its divide and conquer strategy. At the very least, Subiaco might have sought inclusion in either the Vincent or State Government proposal for Perth/Vincent rather than the divisive asset-stripping City of Perth proposal.

  

As a former City of Vincent Councillor (for 14 years) and WALGA zone representative for much of that time, I am aghast that one local government would involve itself in the affairs of another one in this way. How would Subiaco feel if Vincent had said that City of Perth should take over part of Subiaco.

By the way, I note from the Subiaco Council Minutes that Crs Trinder, Stroud, Clements and Potter voted against this  part of the motion and I commend them for doing so.

And as for Lisa Scaffidi's comment about density - the average residential density of Vincent is only slightly less than that of Vincent. Is she aiming to cherry-pick parts of Subiaco, too?

In practice, it probably doesn't make a lot of difference, since the LGAB can't recommend something substantially different from proposals it is already considering without starting the whole process over again. 

Also, as I have previously noted, the LGAB can't recommend the City of Perth proposal, anyway, as it leaves the remainder of Vincent in unviable limbo.

Lisa Really Doesn't Have a Clue

Perth Voice, 15th February, 2014. Click to enlarge.

Lisa Scaffidi still hasn't twigged to the fact that the Local Government Advisory Board can't recommend the City of Perth's proposal to asset-strip the City of Vincent.

One might hope that the LGAB would not recommend the CoP asset-grab on economic, governance, equity or even moral grounds - but even failing all that, the proposal leaves the rest of Vincent in limbo.

I'm not sure that Eleni Evangel gets it, either. The issue of interim governance is not simply decisions that are made on development applications during that time - it is more about the governance structures (including wards) and the culture that will start to take root.

The only fair way to implement amalgamation is to have a complete spill of elected member positions so that the new entity can be genuinely representative of its community  - and, yes, that does mean one-vote, one value. In the interim period, some form of representation that does not disenfranchise one community (Vincent) to the benefit of the other (Perth) has to be found.

Why Government's Amalgamation Proposals Are Invalid

In a recent post on this blog ('Nonsense Proposals and How To Respond'), I stated that "the two proposals from the State Government (Perth/Vincent and Bayswater/Bassendean) do not meet the requirement of the Local Government Act to "set out clearly…the effects of the proposals on local governments".

It has been suggested to me, in the context of otherwise supportive comments on this blog, that the Government's proposals might be 'threadbare' but would meet the requirements of the Act.

So here is my reasoning for stating that the Government's proposals do not meet the requirements of the Act and would therefore be open to successful challenge in the courts.

In the absence of a definition of the term in the Local Government Act, 1995, the first resort would be to the Interpretation Act, 1984  (http://www.austlii.edu.au/au/legis/wa/consol_act/ia1984191), section 5 of which contains standard definitions for written laws of Western Australia. However, this does not include a definition of the word 'effect(s)'.

In the absence of such a definition, the next resort would be to the Second Reading speech of the appropriate Minister when the Bill was debated by Parliament prior to its being passed into an Act. I must admit I haven't been back and checked this, but I would be very surprised if it dealt with a matter of such detail.

Finally, the issue then comes down to 'common usage' - the 'prevailing and accepted interpretation'. Common usage would be along the lines of 'a change which is a result or consequence of an action or other cause' - the Government proposals for amalgamations are almost entirely a description of the 'action or other cause' itself. 

To the extent that there is any statement of effect, it is contained in just two paragraphs under the heading 'Reason for Making the Proposal'. 

The first of these paragraphs is almost word for word the same in all proposals (not just those affecting Vincent) and therefore provides no information specific to the effects of any individual proposal. In any case, statements made are no more than unsubstantiated assertions of potential - the word 'opportunity' keeps cropping up - rather than real and demonstrable effects.

The second paragraph is a combination of description of the action and broad assertion of aspiration - again unsullied by any analysis or real-world support. 

From Vincent's perspective, it is critical that this second paragraph fails to mention Vincent at all. The statements, other than the purely descriptive first sentence, are all about the City of Perth. The proposal clearly fails to identify 'effects' on the City of Vincent, its residents and ratepayers.

Irresponsible NOT to Have Figures, Minister

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Local Government Minister, Tony (Homer) Simpson, says it's irresponsible to "bandy figures around" on the cost of local government amalgamations.

How much more irresponsible is it to force amalgamations without any idea what they will cost - or, come to that, what the benefits will be.

Or, if the Government does actually have cost and benefit estimates, how irresponsible is it not to show them to those affected. The Government's proposals to the Local Government Advisory Board are almost laughably brief, with only two paragraphs of generalisations and unsupported claims on the effects on local governments.

The Government is asking us to buy the proverbial pig in a poke. The taxpayer or ratepayer will have to pick up the tab for amalgamations with no knowledge of what the benefits will be - or even if there will be any net benefits.

I'm not going to 'bandy figures around' - although the Cockburn figures do come from a reputable source - but I can vouch, from personal experience, for the difficulty and disruption of local government reorganisations. In 1964/5, between leaving school and going to university, I had a job with the London Borough of Ealing - this was at the time the Greater London Council was being created. Ealing was a merger between one existing local government and parts of two others (this will sound familiar to the people of Cockburn) and I can tell you that, however serenely swan-like it might have appeared on the surface, beneath the water was, like the swan, chaos.

Subiaco - Most want to stay Subi - Divided views on alternatives

Even with the semantics being used by the WA Government to try to avoid the Dadour poll provisions of the Local Government Act, it has found no way of avoiding a poll in the Western Suburbs - the so-called G7 proposal.

It is ironic, in the extreme, that the area that has commonly been the focus of discussions of the need for local government amalgamations might be the only one where residents and ratepayers actually get the opportunity to reject the proposals. And if the City of Subiaco's survey is any guide, the proposals will be defeated.

The City of Subiaco carried out a phone survey of residents and ratepayers late last year. This clearly showed strong preference for keeping Subiaco as it is but, equally important, showed the lack of consensus support for any of the possible alternatives.

Although business owners were more likely to support change, there were still more of them against the Government's G7 proposal than supporting it.

Pre-Empting the Local Government Advisory Board?

Or is the whole LGAB process just a sham/smokescreen?

The previously-announced timelines for the amalgamation process had the LGAB finishing its inquiry process in June 2014 (and that will be a tough timeline to meet, given the number and complexity of proposals), the Minister for Local Government considering those proposals in July 2014 and the Governor issuing orders for new local governments in August 2014.

Now, the Government, with the connivance of WA Local Government Association and the Local Government Managers Association, has issued a 'Local Government Reform Toolkit', which, amongst other things, requires "recommendations to be submitted to the LGAB relating to the Wards and Consequential directions of the Governors Orders" as soon as possible, but in any case before July 2014.

So local governments are being required to make proposals for matters such as ward structures at best at the same time as the LGAB makes its recommendations and certainly before the Minister has made a determination on those recommendations. This is clearly non-sensical and, at best, will involve a lot of wasted effort where there are conflicting proposals.

One of the principles set out in the toolkit is that "communities and stakeholders actively participate in the change process". How on earth are local governments supposed to consult meaningfully with their communities on matters of detail, such as ward structures, when they don't even know what their future configuration as local governments is going to be.

Nonsense Proposals and How To Respond

It's worth taking a close look at the five proposals that potentially affect the City of Vincent.

The two proposals from the State Government (Perth/Vincent and Bayswater/Bassendean) do not meet the requirement of the Local Government Act to "set out clearly…the effects of the proposal on local governments". The proposals are no more than a one-and-a-half page description of boundary changes with only two paragraphs of broad assertions of effects unsupported by any analysis.

The Local Government Advisory Board cannot recommend either of these proposals because they do not comply with the requirements of the Local Government Act. If the LGAB does recommend them, the decision will be open to (almost certainly successful) challenge in the courts.

The City of Perth proposal also cannot be recommended by the LGAB, as it would leave the remainder of Vincent (with the possible exception of the riverside area of Banks Precinct that would go to Bayswater/Bassendean under the WA Government and City of Bayswater proposals) as an unviable local government.

There is no current proposal for the remainder of Vincent to be amalgamated with any other local government.

If the LGAB were to consider that some other proposal for the remainder of Vincent should be considered (as would be required by its recommending the City of Perth proposal), the Local Government Act (Schedule 2.1, para 4, sub-para 3) effectively requires that the process be started anew.

The City of Bayswater proposal, that would annex the riverside area of Banks Precinct, should not be supported partly because its arguments with respect to the Banks Precinct (eg 'proximity' to Morley centre) are erroneous but, crucially, because there was no consultation (or even communication) with either the City of Vincent or the residents of Banks Precinct during the development of the proposal. 

The City of Vincent proposal also should not be supported because:

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a)      It was made under duress after the WA Government released its initial proposals in July 2013 and stated that it would only consider minor variations from those proposals. The extent of variations since made by the WA Government, for a variety of reasons, clearly invalidates any responses made.

b)   The City of Vincent has, in the light of (a), above, and responding to community views, modified its position (5th November 2013) to be, first and foremost, in favour of retaining Vincent as a separate entity.

The only possible response to these proposals is to argue for rejection of all five. But we need to be careful in doing so that we also state a clear and unambiguous preference for Vincent to remain as it is - supporting the expressed community view and the most recent Council position on the matter. If retaining Vincent is not achievable, then the City of Vincent's proposal is the next best option.

If All Else Fails, Fall Back on Semantics

Having failed to get their proposal to remove the Dadour amendment from the Local Government Act through their own party room, Col Pot and Homer Simpson resort to obscure and bizarre interpretation of the language of the amendment.

By describing many of the proposed changes as 'adjustment of boundaries', they intend to remove the right of affected communities to have a say on the proposals.

How petty can you get!

I wonder how the people of Cockburn feel, for example. Two of three proposals affecting them (Fremantle/East Fremantle and Melville) are described as 'decreasing the size of the City of Cockburn' and the third (Kwinana/Cockburn) as 'disestablishing the City of Cockburn'. The fact that this is purely semantics is obvious from the fact that if the disestablishment had been attached to the Fremantle/East Fremantle proposal, the Dadour poll provision would still be in play.

And what about Perth/Vincent - described as 'increasing the size of the City of Perth'? Semantics again - what if we decided to call the new entity something other than Perth?

But to call it a boundary adjustment to the City of Perth is really stretching credulity and surely must be tested in the courts. Vincent is larger than Perth (11.4km2 compared to 8.7km2), has more people (31,500 compared to 19,000 - in 2011) and nearly twice as many electors (19,300 compared to 10,500 in 2009). The City of Perth does have three times the rate revenue (and total revenue), but dollars are not everything.

The sensible thing to do, if the proposal were to go ahead, would be to have a merger of equals by abolishing both existing entities and creating a new entity - even if it were still to be called the City of Perth.

Even more fundamentally, the Government proposal documents are totally inadequate to meet the Local Government Act requirement to "set out clearly…the effects of the proposal on local governments". The proposals are no more than a description of boundary changes and two paragraphs of broad assertions unsupported by any analysis.

Bottom line - the Local Government Advisory Board cannot recommend the WA Government proposals because they do not comply with the requirements of the Act.

Redundant Legislation

On 30th November 2013, the Minister for Local Government, Tony Simpson, introduced the Local Government Amendment Bill into the Legislative Assembly. 

On 3rd and 5th December, the Bill was debated by the Assembly.

On 10th December, the Bill was introduced into the Legislative Council, which has not yet completed its deliberations.

A key part of this Bill was the removal, temporarily (ie for the current local Council amalgamation process being promoted by the Government), of the requirement for the Local Government Advisory Board (LGAB) to call for submissions on amalgamation proposals.

On 29th January 2014, the LGAB called for submissions on 32 proposals it had received for changes to metropolitan local governments.

Will the Minister for Local Government now withdraw this provision (paragraph 14 of the Local Government Amendment Bill), as it is clearly redundant and it would be a waste of parliamentary time to continue to debate it?