Lodging a complaint about councillors should not be this hard

Glamorgan-Spring Bay issue raises questions about democracy, says Yon Kikkert

MY experience in lodging complaints against Tasmanian councillors makes me fear that the process will deter others from pursuing local government complaints.

Glamorgan-Spring Bay Council councillors Keith Breheny and Rob Churchill were found to have breached the council Code of Conduct ( Mercury, July 20).

Despite attending training in planning and receiving legal advice about their potential conflict of interest regarding Cambria Green, they did not declare their conflict of interest when voting on this topic, thus failing in their duty as elected representatives. A Code of Conduct panel determined both councillors had breached three clauses of the Code.

The Mercury article also reported complaints received by the Department of Premier and Cabinet (DPAC) against me from parties more concerned with shooting the messenger. Unbeknown to me, by writing a letter about the Code of Conduct determination to a local (East Coast) paper, I was in breach of the Act. I worry that my experience since lodging a Code of Conduct complaint may inhibit others from raising their concerns about the behaviour of councillors, thereby weakening this arm of democracy.

I felt compelled to lodge a Code of Conduct complaint because of information I believed showed that councillors Breheny and Churchill had a conflict of interest in the Cambria vote. Both councillors were founding members of an association that was established in opposition to Cambria Green and both submitted representations to council on the topic. As explained in the Code of Conduct panel’s determination, when the issue was voted on by council, “They would be conflicted by having to judge impartially the value and relevance of material they themselves had provided to council as interested community members”.

What if developers were to follow a similar path to councillors Breheny and Churchill, instead supporting rather than opposing a development? That is, developers formed an incorporated association to lobby for a particular development and generated a wave of support via media spin that consequently resulted in some of their members getting elected to council. After being elected, the members resigned from the development group and then voted on the development when it came before council while at the same time claiming they were voting with an open and unprejudiced mind. Many members of the public would be apoplectic in their outrage. And rightly so. The equivalent of this has happened on the East Coast with the antidevelopment group East Coast Alliance and the election of councillors Breheny and Churchill. This is an untenable situation, so I decided to lodge a Code of Conduct complaint.

In response to my Code of Conduct complaint, DPAC emailed me in March 2019, requesting me to refer to an attached document to guide me through the process. The attached information sheet for complainants was dated September, 2016. That is the document upon which I relied as a lay person speaking truth to power.

The first I heard of my alleged breach of the Act was from a journalist the evening before the article was published. Since then, I’ve become aware that a new

clause was added to the Act this year. This clause requires determinations to remain confidential until they are published in the relevant council’s agenda. At no point through the complaints process was I informed that the Act had been updated. I was thus failed by those with a duty to inform me that the goalposts had been moved in the middle of play.

My experience highlights problems with the Code of Conduct process in terms of the unrealistic expectations on lay people to be fully cognisant of changes to the Act above and beyond the advice received from the department.

More importantly, inconsistencies regarding sanctions for councillors who break the code in comparison to inadvertent errors made by lay people lodging complaints, threatens to deter members of the public from engaging in this democratic process.

The Code of Conduct panel found that councillors Breheny and Churchill breached multiple clauses of the Code. Their sanction comprised a caution and a requirement to undertake training by the Integrity Commission. In contrast, the potential sanction for my inadvertent error is a fine of up to $8400. When considering these sanctions, it’s important to reiterate that at no time had I been made aware that a clause about disclosure had been added to the Act.

In contrast, councillors received multiple sources of information about conflict of interest, including written information, training for councillors in planning and legal advice specifically referring to their potential conflict of interest regarding Cambria.

Which principle has a higher weighting — splitting hairs over the timing of the release of information or the failure of elected councillors to declare an actual conflict of interest?

If we assume that breaching the Code of Conduct is a more serious offence, how are we to interpret the disproportionate sanctions, even allowing for discretion when they’re applied?

How are private citizens expected to exercise their right to hold councillors accountable when the complaint process is a minefield and they face the prospect of hefty fines for inadvertent breaches of the Act? These are core issues that go to the heart of how our democracy functions.