Independent Assessor: The election lead up
By the Queensland Government Independent Assessor Kathleen Florian
With the 2020 local government elections in sight, integrity issues are likely to be at the forefront for anyone considering becoming, or continuing to be, a councillor.
While I know councillors are concerned about vexatious complaints and complaints that are not made in good faith - I always encourage councillors to focus on what you can control; being alert to the councillor conduct risks and taking proactive steps to ensure that you do not engage in inappropriate conduct or misconduct.
As previously reported by the OIA the greatest misconduct risk faced by councillors is not properly disclosing and managing their conflicts of interest or material personal interests.
I will also be continuing to share with councillors how the Councillor Conduct Tribunal is applying the standards so you can consider how those standards apply to your own circumstances. In nine months, 23 matters involving 11 councillors have been decided by the Tribunal (as at 30 August 2019).
These decisions are providing valuable inslghts into the application of the conduct provisions in practice.
Complaints and Assessments – what to expect in the lead up to elections
The OIA continues to receive a high volume of complaints with almost 970 complaints having been received as at the end of August 2019. It is anticipated that in the lead up to the local government elections the number of complaints received by the OIA will increase.
I am confident however that the OIA will continue to be able to assess about 80% of all incoming complaints within 21 working days. This initial assessment phase is quite robust with more than 560 complaints being dismissed on assessment (as at 30 August 2019) with correspondence sent to complainants and councillors addressing both the allegations and the reasons for dismissal.
Look out for the next OIA insight which will be published in October 2019 and which will include a focus on vexatious complaints and complaints that are not made in good faith.
OIA misconduct investigations – what to expect in the lead up to the elections
While I understand the imperative to complete investigations before the 2020 local government elections it is anticipated that there will be some ongoing delays in finalising investigations.
If a councillor is of the view that an allegation being investigated is correct, councillors do have the option to fast track a matter directly to the OIA legal stage. Expediting a matter in this way is also something that the Tribunal will take into account in determining what sanction may be appropriate.
As at 30 August 2019, the OIA had finalised 187 investigations and had a further 150 active investigations. We write to all complainants and subject councillors requesting that the fact that particular matters are being investigated by the OIA, is kept confidential, to allow us to properly investigate all the issues.
The number of OIA investigations currently exceeds the OIA’s investigative capacity so investigations are being prioritised based on relevant factors including; potential continuing impact of the conduct, age of the matter, evidence preservation, public interest, seriousness, Crime and Corruption Commission oversight and whether the conduct may be systemic.
This is a dynamic process and matters may be quickly raised or lowered in priority as information is considered.
In the lead up to the election the OIA will also be taking into account the public interest considerations related to the election process, particularly if allegations are already in the public arena.
Based on resourcing levels, the OIA aims to finalise investigations within six months of commencement of the investigation.
OIA investigation referred to the OIA legal team – what to expect in the lead up to elections
If at the end of an investigation I am reasonably satisfied that a councillor has engaged in misconduct, the OIA will provide the councillor with a section 150AA notice. Attached to this notice will be a statement of facts that sets out the allegations and the evidence.
The councillor then has an opportunity to respond to that notice and to say why they consider that a matter should not be referred to the CCT, and I will consider this response before deciding whether the matter should be referred to the CCT or not.
The complainant and councillor will be advised if the complaint is referred to the Councillor Conduct Tribunal. (See flowchart below)
As at 30 August 2019, there are 26 matters with the OIA legal team involving 26 councillors and 48 allegations where matters are being prepared for, or are engaged in, this natural justice process.
Matters are prioritised for referral to the CCT based on the length of time that they have been with the OIA legal team.
Matters before the Councillor Conduct Tribunal
As at 30 August 2019, there are 17 matters involving 10 councillors and 32 allegations before the Councillor Conduct Tribunal.
How long a matter takes before the councillor conduct tribunal depends on a number of factors including whether the matter is contested or not, the size and complexity of the matter, and the availability of witnesses.
If the Tribunal finds that misconduct is not sustained, to date, it has been the practice of the Tribunal to not identify the councillor in the published summary of the decision, unless a councillor agrees to be identified.
If the Tribunal finds that misconduct has been sustained, the councillors name will be identified in the published summary of the decision.
In either case a copy of the full decision and reasons will be provided by the Tribunal to the councillor, the complainant/s and the OIA.
I trust this outline will provide councillors with a greater understanding of how the election period will impact on the management of councillor conduct complaints.
Local Government Association of Queensland
LG House, 25 Evelyn Street, Newstead Qld 4006
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