What If The Appeal Is Successful?

The issuing of Governor's Orders before the appeal has been determined raises important questions about the status of those Orders.

There is an apparent conflict between two parts of the Act here. 

9.65(2) states that Orders may be revoked (but doesn't define the circumstances).

9.65(3) states that Orders are valid notwithstanding non-compliance with the Act (ie illegality).

The latter is a very strange provision, as it almost encourages a Minister to break the law to see if he can get away with it.

One can only hope that, in the event of a successful appeal, the judgment includes a direction to revoke the Orders.

Bah! Humbug! Homer's Christmas Present To Us All

What a typically cynical piece of skulduggery to have Governor's Orders issued on Christmas Eve and hope that no one will notice - especially when the Supreme Court judgement is under appeal.

It isn't often that I wish people ill, but I hope Homer (and Col Pot) have the Christmas they deserve - and that doesn't include the word 'happy'.

http://www.slp.wa.gov.au/gazette/gazette.nsf/searchgazette/DD7AD735D82AA7B248257DB70083B89D/$file/gg208.pdf

PS  By signing the Governor's Orders while the matter is still before the Courts, Kerry Sanderson has failed her first test as Governor

An Unlikely Event

As readers of this blog will be well aware, it isn't often that I agree with Perth Lord Mayor, Lisa Scaffidi - indeed, this might well be a first - but whatever one might think of Col Pot's City of Perth Act proposal we should all agree that, if you're going to do it, it should be done properly.

The creation of a new enlarged City of Perth is much more complex than amalgamation (or 'boundary adjustment') of two councils, because of the special nature of a 'capital city'.

'Hurriedly-convened' meetings in January, 'background papers' that are not yet available and an 'advisory group … meet[ing] next month to liaise with relevant stakeholders' hardly sounds like a thorough and well-thought-out consultation process.

Lisa Scaffidi is not the only 'relevant stakeholder' who has organised leave during December/January. While it is to her credit that she has cancelled three weeks' planned leave, there will be many others who are unable to do so - leaving holes in the stakeholder consultation that make it look like a swiss cheese.

Organisations, in particular, will find it virtually impossible to get a view from their members at this time of year.

And if legislation is to be introduced in February, it is clear that the 'consultation' is little more than window-dressing - a sham - as any meaningful consultation would require time to digest and to at least fine-tune the legislation.

On the positive side, the sham and shambolic consultation envisaged should be yet one more reason why Labor, the Nationals and the Greens should maintain their opposition and defeat the Bill in the Upper House.

What Part Of 'No' Doesn't Barnett Understand?

How many times does it have to be said: Vincent does NOT want to be part of the City of Perth.

Kate Emery is wrong when she says  ('Barnett confident on council mergers', West Australian website, 16th December 2014) that "the City of Vincent wants to be part of the City of Perth". The City of Vincent proposal for this was only made in an attempt to avoid the worst aspects of proposals from the Minister and the City of Perth.

Nearly 4 out 5 of those who voted in October 2013 did not want Vincent to be abolished.

Vincent Council has clearly stated its position to be that it:

- Recognises the local community’s first preference, based on the results of the City of Vincent plebiscite and ongoing community feedback, that the City of Vincent remain as its own local government entity;

- Remains opposed to forced local government mergers which does not give ratepayers the final say on the future of their council.

The Mayor of Vincent has also strongly opposed the vote-weighting proposed by Barnett to ensure that "residents don't control the CBD" - the effect of which would be to make Vincent residents second-class citizens.

For Colin Barnett to say, publicly, that the City of Vincent supports his proposed City of Perth Act can only be described as an astounding act of hubris - one that is compounded by his expectation that the Opposition will support it, despite statements to the contrary previously made by the Leader of the Opposition, Mark McGowan.

The hope for those of us who value democracy and honesty is that, as in the Greek tragedies, the goddess Nemesis comes to our aid as the punisher of hubris. And Barnett has, apparently, admitted that he has no Plan B.

The fact is that the City of Vincent, the Nationals and the Labor Opposition have all said they oppose Barnett's proposed City of Perth Act with its gerrymander.

And Kate Emery clearly doesn't understand that unequal wards or vote-weighting are the same - both echoes of the infamous Bjelke-Peterson era in Queensland that was maintained only with a most horrendous gerrymander.

UPDATE 8pm

Barnett, on the ABC 7pm News, when asked how he hoped to get his Act passed, said "Power of persuasion. Watch this space". Those of us who have observed his tactics throughout this process know that means he will try to bully opponents into supporting him.

Consultation Must Be Genuine

Colin Barnett has announced that he will give priority to his proposed City of Perth Act in the New Year.

Local Government Minister, Tony Simpson, says that the Act will "be drafted in consultation with both the City of Perth and the current City of Vincent as well as relevant business, tourism and ratepayer associations".

Let's hope he really means what he says for once and that 'consultation' isn't simply a façade to give apparent legitimacy to what Barnett has already announced - a gerrymander to ensure that "residents don't control the Central Business District".

There are 14 Precinct Groups in the City of Vincent. I hope that Vincent Council insists that they all be part of a genuine process of consultation - not one for which the outcomes are predetermined. This means that the length and timing of the consultation process must allow representative groups, whether they be business, tourism or ratepayer-based, themselves to consult with their members.

More Doubtful Legality

The latest Local Government (so-called) Reform Update says that 'continuing councils' can call for changes to the ward structure recommended by the LGAB - once Governor's Orders have been issued.

The new local governments do not come into effect until 1st July 2015 (unless some as-yet-unannounced change has been made to the implementation timetable), so what is the legal basis for an existing council seeking changes to ward structures for a local government that doesn't yet exist?

In addition, it is surely grossly unfair for the Council of, say, Cambridge to seek a specific ward structure for the new entity of Subiaco?

UPDATE: 16th December

For a clear and informed view of this process and the information provided to Councils see http://chriscornish.info/2014/12/department-of-local-government.

Assertions Not Information

Five out of the six local government communities that have the privilege of being able to call a poll on the amalgamations being forced on them Kwinana, Cockburn, South Perth, Victoria Park and, now, East Fremantle) have now called for such a poll.

The information to be provided, along with voting papers, to electors by the Electoral Commission comes from the Local Government Advisory Board.

The 'YES' case consists of the usual unproven (and, indeed, contradicted by the evidence) categorical assertions about improved efficiency and sustainability - yet despite this are all stated without qualification.

The 'NO' case, in contrast is stated using weak language ('generally satisfied') and in less-than-certain terms ('may be'; 'may experience').

Case for YES
 The existing communities share similar social and economic characteristics.
 A larger local government has increased capacity to attract and retain specialist staff and provide greater levels of community leadership.
 The new local government will be more sustainable and better positioned to address challenges and provide services to its residents.
 A larger local government has a greater capacity to plan for the future of the communities.

Case for NO
 The existing local governments have a strong connection to their communities.
 Residents are generally satisfied with the standard and level of services provided by their current respective local governments.
 There may be some interruption to services during the amalgamation transition period.
 Residents and ratepayers may experience some level of uncertainty about how the changes will affect them.

The difference in language does not come as a surprise, as the LGAB has already determined, in its recommendation that is being tested at the poll, that, in its view, the 'yes' case is stronger than the 'no'. It is not appropriate, despite what the Local Government Act says, for the LGAB to provide this key information to voters where it has a clear conflict of interest - but then we already know that the LGAB doesn't understand conflict of interest.

Of even greater concern, however, is that none of the statements relates specifically to the people who are being asked to vote or to their local government. 

UPDATE 17th December

Published, although with some editing, in the letters page of the West Australian.

Ian Britza, MLA - Missing In (In)Action

One month ago I sent an open letter (http://ianrker-vincent.blogspot.com.au/2014/11/open-letter-to-ian-britza-mla.html) via email to Ian Britza, MLA for Morley. This letter supported his clear statement that he "upheld the truths, goals and objectives of the Liberal Party" and pointed out that the current local government so-called reform process was far from those ideals.

So far I have not even had the courtesy of an acknowledgment, never mind a proper reply.

This is all the more perplexing given that the Bayswater and Stirling Councils (his Morley electorate is part in Stirling and part in Bayswater) are now, belatedly, up in arms about what is being proposed (see http://ianrker-vincent.blogspot.com.au/2014/11/he-who-sups-with-devil.html).

Does No One Understand Conflict Of Interest?

Both Colin Barnett and Dean Nalder have continually echoed the Chief Justice, Wayne Martin, in a puzzling assertion that conflict of interest doesn't matter as long as it doesn't actually affect decisions.

To most of us, it is the potential for a conflict of interest to influence decisions that is the most important matter that requires attention.

To rely on the outcome requires that the outcome and that the person with the conflict of interest was involved in achieving it actually be known - not always easy in these days of increasing government secrecy.

More importantly, in a practical sense, is that the outcomes might well not be reversible. In the Nalder case, the Tier 3 rail lines come to mind - once these lines are closed and allowed to deteriorate it is most unlikely that they would ever be re-opened.

In the case of local government so-called reform, if ignoring the conflict of interest of some members of the Local Government Advisory Board results in amalgamations across the metropolitan area (not to mention, subsequently, country WA), the massive expenditure to implement the change makes it unlikely that there would be appetite for the additional cost and disruption of de-amalgamation - although some Queensland communities have shown that it can be done.

Blink And You Miss It

West Australian, 12th December 2014

A very important development rates only four short paragraphs in the West Australian - but at least it wasn't buried at the foot of the page as some previous local government so-called reform news items have been. I congratulate the City of Subiaco Council for continuing to stand up for the rights of their community and democracy.

There are some very serious issues arising from the Chief Justice's ruling of 25th November that have to be tested if democracy and the rule of law are to have a chance of survival in this State.

This is uncharted territory. The Local Government Act has never before been used for such a complex set of changes - indeed, it was never intended to do so.

Although there has been nothing to stop the Minister seeking Governor's Orders for those recommendations not subject to a poll, the Subiaco appeal makes this extremely problematic for Simpson as any such orders would conflict with the result of a successful appeal.

In any case, to seek some Governor's Orders would leave some awkward situations should any or all of the polls get a binding outcome to reject. There could be substantial areas of Canning, Melville and Cockburn and some other small areas not then covered by any local government.

Now that Subiaco has decided to appeal, the lawyers will need to deal with the State Solicitor's Office and the Minister with regard to timing of Governor's Orders. This would also need to cover all of the recommendations either directly or indirectly (ie by precedent) affected by the appeal, which is all of them in one way or another. How this would be dealt with will depend, to a large extent, on how the Court interprets section 9.65 of the Act - Para (2) states that orders can be revoked but para (3) states that an order is valid even if parts of the Act have not been complied with.

I would hope that the Government would see the sense in holding off on Governor's Orders until the appeal is finalised, because the alternative is a real mess - not to mention loss of face. However, it has placed such huge emphasis on its timetable to have new local government operating at 1st July 2015 that to delay pending the appeal (which I believe would be unlikely to be heard before March/April) would itself be a huge backdown.

The Government has, indeed, got itself between a rock and a hard place.

Kalamunda Maintains The Rage

While the local government parties to the legal action discuss whether to appeal, the Save Kalamunda community continues to put the issue out there with a vengeance. 

 

Death Of Democracy And Justice

Follow The Rest - Like Lemmings?

There's a letter in this week's Post Newspaper that calls on us to follow the rest of Australia into larger local governments. Here's my response to that, submitted as a letter to the Post - and, for balance and context, the original letter is at the right of this post.

Robert Mitchell (Letters, 6th December 2014) thinks we should follow the rest of Australia into larger local governments, but has he looked at the reality of what has happened? Amalgamations haven't reduced costs anywhere. 

If amalgamations are such a good thing, why hasn't the WA Government been able to tell us. The Minister for Local Government has admitted that he doesn't have a business case and he doesn't know what the costs and the benefits would be.

Well, the residents and ratepayers of Geraldton/Greenough/Mullewa (now merged) can tell him. 

- Rates up 30%

- More managers and directors and fewer workers

- Lots of contractors and consultants who have no real connection with the area

- Businesses closing because they can't afford the higher rates

- Building and development permits even more problematic than previously.

And there is a very real loss of the local from local government, especially if wards are done away with as the WA Government is doing. Larger local governments will inevitably increase the cost of standing for election and local government becomes the domain of political parties and others with deep pockets.

If amalgamations are such a good thing, why are amalgamated councils in Queensland already de-amalgamating?

If amalgamations are such a good thing, why did amalgamations in Canada increase the number of local government staff by 27%?

Professor Brian Dollery, Director of the Centre for Local Government at the University of New England (NSW) has studied amalgamations. His research shows that there are only economies of scale for about a quarter of local government expenditure and the rest is subject to diseconomies of scale - costs go up as Councils get larger.

Where's the benefit to residents and ratepayers?

WA data on council charges (rates and rubbish charge) show no difference between small and large Councils (see chart below). The logic of this suggests that (a) there is no economic or financial case for larger local governments and (b) that, since there is no systematic relationship between size and charges, communities should be given the choice of what size of local government they want.

UPDATE 12th December 2014. Letter published in Post News, 13th December 2014 - the online edition comes out a day before the masthead date!