Extract from Hansard
[COUNCIL— Tuesday, 25 February 2014]

HON NICK GOIRAN (South Metropolitan) [7.54 pm]: It is fair to say that I have never been more surprised to rise to make a contribution on a bill in this place than I am to rise to make a contribution on the Local Government Amendment Bill 2013.

Before I had the honour of being elected as a member of the South Metropolitan Region at the 2008 election, a variety of things caused me to put my hand up to be a candidate for the Liberal Party. I have spoken about some of those things previously, including how strongly I felt about those particular matters. I have spoken previously about a number of bills that were introduced into the Parliament prior to 2008 that caused me such a level of concern that I felt the need to sell my legal practice and put my hand up to be a Liberal candidate. I had the honour of being elected as a member of the South Metropolitan Region.

I can confidently say that since that time I never once turned my mind to issues concerning local government; they were not the type of things that exercised my mind or caused me to lose any sleep. In the past five years I have been in this place I have tended, I would like to think, to restrict my contributions to matters that are of particular import. In other words, it was once suggested to me not to sweat the small stuff. In this case, as I said, I am very surprised that there is a need for me to engage in the debate on this bill. I certainly would not have thought I would and I am still surprised that there is a need for it. However, a sequence of events has occurred that has left me with no alternative but to make a contribution this evening.

By way of some background, it might be helpful for me to indicate my philosophy on local government reforms. It is not something to which I had to turn my mind too often in legal practice, but as we come to scrutinise this bill it is necessary for me to make some brief comments.

Firstly, I say at the outset that I am not opposed to local government reform per se. Indeed, the Deputy President (Hon Simon O’Brien) may well know that I had a particularly strong view on the proposed referendum to give constitutional recognition to local government. My view was, and still is, that that was entirely inappropriate and the reason for that is quite simple: local government is a creature of statute and a creature of the states. It is entirely up to the states—in this case, the state of Western Australia—to determine what, if any, local government it might choose to have in its state. For that simple reason there was no need to exercise a variety of other reasons why one might be opposed to the referendum; it was just so obvious that it went without saying. I am pleased to see that went absolutely nowhere.

In the consideration of matters to do with local government, it was useful for me to stumble across a document—a classic work, we might say—titled Democracy in America by Alexis de Tocqueville. He begins his examination of American institutions with the township of New England. Interestingly, what he says is very instructive as we consider this bill. I quote from that classic work as follows —
It is not by chance that I examine the township first.
The township is the sole association that is so much in nature that everywhere men are gathered, a township forms by itself.
Township society therefore exists among all peoples, whatever their usages and their laws may be; it is man who makes kingdoms and creates republics; the township appears to issue directly from the hands of God. But if the township has existed since there have been men, the freedom of a township is a rare and fragile thing.

…

Among all freedoms, that of townships, which is established with such difficulty, is also the most exposed to the invasions of power. Left to themselves, the institutions of a township can scarcely struggle against an enterprising and strong government;
…
It is nonetheless in the township that the force of free peoples resides. The institutions of a township are to freedom what primary schools are to science; they put it within reach of the people; they make them taste its peaceful employ and habituate them to making use of it. Without the institutions of a township a nation can give itself a free government, but it does not have the spirit of freedom.

As I said earlier, my view is very much that, constitutionally speaking, local government in Australia is a creature of the state legislatures. However, I submit that if we in this place representing the people of Western Australia wish to defend the inherent right of our state to determine its own affairs against the creeping and indeed sometimes galloping centralisation increasingly pursued by federal Parliaments of all persuasions, we ought to be consistent in defending the principal of what de Tocqueville called “administrative decentralisation”, which members of the European Union refer to in the politics there as subsidiarity.

A soon-to-be-released book by a good friend of mine, Dr Augusto Zimmermann, and his colleague, Dr Michelle Evans, states, according to my notes—
Subsidiarity is often described as a norm calling for the devolution of power or for performing social functions at the lowest possible level.

I think these are important first principles to consider when we scrutinise this bill. From my introductory remarks it should be clear that I approach the scrutiny of this bill with two questions in mind. Firstly, would the provisions of this bill, if enacted, help foster vigorous local government in Western Australia? Secondly, do the provisions of the bill rightfully respect the integrity of local government and the freedom of Western Australians to have a say in their own local affairs or do they diminish this freedom?

I want to focus on clause 14 of the bill. Section 1.3(2)(b) of the Local Government Act 1995 states that the act is intended to result in—

… greater community participation in the decisions and affairs of local governments;

That is what the current act states. The proposition in clause 14 of the bill seems to have the opposite effect to the stated intention of the Local Government Act, and therefore requires close scrutiny by members of this chamber. Clause 14 is a temporary measure designed to operate between the day on which clause 14 comes into operation and 31 December 2016, or a later date appointed by the Governor. This temporary measure will allow the Local Government Advisory Board to conduct a formal inquiry into, and make a recommendation to the minister about boundary changes or amalgamations of local government districts in the metropolitan area without either calling for submissions or, if unsolicited submissions are received, considering those submissions.

If this bill had passed this place prior to it rising for the summer recess, it would have been possible for the Local Government Advisory Board to have proceeded to a formal inquiry into the 34 proposals currently before it regarding local government districts in the metropolitan area without the benefit of public submissions. In other words, Mr Deputy President (Hon Simon O’Brien), you and I and our colleagues would have been disenfranchised along with hundreds of members of the public, who would no doubt express their democratic right to have and to express a view on where the boundaries of their own local government should fall.

Indeed, Mr Deputy President, you and I and our good friend Hon Phil Edman and the hardworking and capable member for South Perth, John McGrath, share a common view that the proposal to hand all or part of the Burswood peninsula to the City of Perth is an affront to commonsense. It is made in defiance of the obvious boundary that is the beautiful Swan River, which, as every Western Australian knows, divides Perth into those who live north and those who live south of the river. It is interesting and important for us to reflect on the fact that the City of South Perth and the Town of Victoria Park have made it clear that the retention of the whole of the Burswood peninsula is critical to the sustainability of the proposed amalgamated local government.

The minister for Local Government’s proposal that the site of the Burswood Casino and the new stadium will be, I quote —

… excised from this new district and included in the modified City of Perth due to their strategic importance to the metropolitan area.

In my view that proposal lacks any detail or persuasive rationale. I would say that the City of Perth’s grab for the whole of the peninsula is clearly motivated by the additional revenue that this would mean for the city.

Another text that I consulted prior to considering this bill was Chesterton’s imaginative novel exploring the passion of local patriotism, The Napoleon of Notting Hill, in which Adam Wayne raised a local militia to defend Pump Street, a street with nothing in it but a public house and a penny toyshop, from the greedy burghers of Bayswater.

Perhaps, Mr Deputy President, with my tongue firmly in my cheek, you and I, Hon Phil Edman, the member for South Perth and anyone else who might want to join us ought to consider forming the militia of South Perth and Victoria Park to hold the southern end of the causeway against all land-grabbing imperialist invaders from the north. Lest it be thought that this is a joke, let me indicate the strength of feeling within the Liberal Party on this particular issue. I hasten to add that it is not that I am opposed to local government reform but the issue of the Burswood peninsula is a massive issue.

Last night, I had the privilege of attending the divisional council of Swan division of the Liberal Party. The Liberal Party is divided into 15 divisions, one of which is the Swan division, and it had its monthly meeting last night. At the divisional council meeting last night, the Swan division passed—by the way I should add, Mr Deputy President, that I passed on your apologies for being unable to attend the meeting.

I will outline what the Swan division of the Liberal Party passed last night. I quote the papers from the meeting, which state —

The Swan Division of the Liberal Party refers the Minister for Local Government to the Division’s unanimous motion of 22 July 2013 —
I pause to emphasise that date, which indicates how long this has been an issue advocated for within the Liberal Party. I continue —
… and further the Division:

(a) Notes that —
i. the Swan River is the natural boundary between the City of Perth and the City of South Perth and Town of Victoria Park;
ii. businesses on the Burswood Peninsula provide the greatest rate revenue (around $5,000,000) for the Town of Victoria Park;
iii. the loss of the Burswood Peninsula to the Town of Victoria Park would require the Town to make large rate increases and/or reduce services to residents;
(b) Notes with concern that the Minister has proposed to the Local Government Advisory Board —
i. abolishing the City of South Perth;
…
iv. that councillors from the Town of Victoria Park will make all decisions relating to the former City of South Perth (until new elections are held);
v. that residents of the City of South Perth and the Town of Victoria Park will be denied their right to a vote on the changes under the Dadour provisions; and
vi. removing the Burswood Peninsula from the Town of Victoria Park and allocating it and its substantial rate revenue across the Swan River to the City of Perth;
(c) Requests the Minister —
i. withdraw support the joint City of South Perth and Town of Victoria Park submission to the Board noting that submission was Western Australia’s sole cooperative attempt by neighbouring local governments to jointly implement the State Government’s reform agenda without substantial detriment to local residents.

That is the end of the motion. I might add, having been there as an observer or as a guest of the meeting, I happened to note that the motion was passed unanimously.

I took that unusual step of reading into the record of this place a motion from the lay party of the Liberal Party to simply indicate that this matter has been advocated for in excess of a year and it is fair to say that people are now exasperated for not having been listened to.

I again re-emphasise my earlier comments that for me to bother to engage on a bill to do with local government reform still surprises me, because, frankly, where there are lines on a map really does not cause me to lose any sleep at night.

I re-emphasise my earlier point: it is for the state to decide these things—absolutely. But when we say it is for the state to decide these things, we also have an underlying assumption, I think it is fair to say, that these things will be dealt with with a level of commonsense.

Where that is absolutely and obviously absent is with the Burswood peninsula. Quite frankly, had it not been for the outrageous proposition that the Burswood peninsula now suddenly and miraculously go to north of the river, into the welcoming hands of the City of Perth, I probably would not even have bothered to make a speech this evening. However, the strength of feeling south of the river, particularly by the residents of South Perth and Victoria Park, is strong.

I have heard many a time it being put to me that people do not actually care too much about this local government reform agenda. To some extent that is true. I have not received an overwhelming amount of correspondence from constituents to say that they would really like to see local government reform; and in the same breath, not a great deal of correspondence from people not wanting reform. I hasten to add that is in respect of people in the South Metropolitan Region. Indeed, I have received an abundance of correspondence from people in the country and from the western suburbs.

With respect to the South Metropolitan Region, I have had a modest amount of correspondence on this issue—probably more so, in fairness, from people within the City of Cockburn, but generally speaking people are not overly concerned. People from the Town of Victoria Park and the City of South Perth are very concerned about it—so much so that the Swan division of the Liberal Party decided to move a motion on it last night. I hope that eventually the message will get through to the powers that be that this really is not satisfactory.

I might add my support at this time to the motion that was passed last night that suggested that the Minister for Local Government withdraw his proposal to the Local Government Advisory Board. That would indeed be an extremely helpful thing. It would take a lot of angst out of this debate with respect to those people south of the river. I appreciate that members in other regions have other constituents’ issues; I do not intend to engage with respect to them.

I want to touch on a further thing. Given that the bill was not passed by this house before the summer recess and that the Local Government Advisory Board has already called for, and is receiving, submissions on the 34 proposals, the provisions in clause 14 really, if enacted, only apply to proposals from the board to vary the scope of the inquiry or to recommend to the minister an order that is significantly different from the proposal into which it formerly inquired. The existing legislation already allows the board in these circumstances to set its own period to receive submissions. It is not bound to offer the six-week period required for initial inquiries. This seems to give the board sufficient flexibility to move the process forward while still allowing for public input to be considered.

The proposals for changes to local government in the metropolitan area currently being considered by the advisory board are significant. The outcome will affect constituents for many years to come. I should also hasten to add that there appears to be no valid reason for the state to deprive constituents of their established and natural rights to have their views fully considered. At the very least, if the bill is to become an authentically good bill, it would need to be amended to ensure that the board must consider any submission made to it at any stage of the reform process.

I return to the issue of South Perth and Victoria Park. I earlier mentioned the proposal that the two local government districts be amalgamated. The proposal from the Minister for Local Government that the City of South Perth be abolished and the boundary of the Town of Victoria Park simply be extended to include all of the area of the abolished local government district of South Perth is, to say the very least, a curious way to deal with matters. The justification advanced—that this would enable at least one bank account and an ABN to continue—is laughable. If the two local governments amalgamate, I would have thought that it would take a moderately switched-on accountant about the sum total of one day to sort out any bank account and a new ABN for the new entity.

The proposal is plainly worded so as to avoid the possibility of a poll under clause 8 of schedule 2.1 of the act. This seeks to deprive the electors of this right by playing with the description of the proposal—in other words, calling it a “boundary change” rather than an “amalgamation”. I once again emphasise for the hard of hearing that I am not opposed to local government reform—never have been—but I do share the belief of de Tocqueville and Chesterton that I referred to earlier that local government should be conducted by locals, not by the heavy-handed interference of a higher level of government.

I make one last comment before I conclude, and it relates to an issue that was discussed at length during this second reading debate; that is, the addition of members to the board. I share a somewhat different view from other members who have contributed to this debate. On one hand we have heard from our good friends from the bush that this is an excellent amendment that they have somehow played a hand in because it will now ensure that there is no “control”—my word—by the local government minister in the composition of the panel. I will have something to say about that in a moment. The other proposition that was put forward most recently by Hon Ken Travers is that this is exactly what is going on—that is, it is all about the local government minister controlling the people on the board.

As I say, I share a somewhat different view from those two that I have outlined. With the greatest respect to my cousins from the bush, I do not share their optimism necessarily that this somehow avoids the proposition that Hon Ken Travers put forward. I can understand the concern outlined by the honourable member: giving the local government minister the opportunity to not only choose two people, but also to choose from a list, means it is not unreasonable to suggest that the outcome might be the same, particularly if the list is long. I believe I heard some time during the course of the debate that the list might be as long as 12 people. Certainly if it were me making the decision and I had a list of 12 to choose from, naturally I would choose one out of the 12 who particularly grabs my fancy!

I do not think that is unreasonable in terms of that proposition moved by Hon Ken Travers. However, I hasten to add something that I learnt from Hon Ed Dermer. He used to say from time to time in this place that he sought a charitable interpretation of things. I would like to do the same thing in this respect—that is, to charitably assume that this is not about control and that people who are selected to perform a function on the board will do so with the independence that is actually required of them. It is not an option. It is not any different from the role of members of this place.

When members come in here and swear the oath at the beginning of the Parliament, members are not swearing an oath to their parties. Those who feel that is the case should perhaps go and reflect once again on what the oath is. Indeed, part of the oath seeks us to do things in the best interests of the people of Western Australia.

The people on the advisory board, irrespective of how they might have been appointed or who chose them to do that, have an obligation at every level, whether it is an ethical or a legal obligation—they have an obligation to fulfil that role with proper care and attention. They have a duty. It is a little like company directors, if you like, or people on the boards of not-for-profit organisations. They have to take self-interest out of it and they are there in that capacity at that moment in time. That is sometimes difficult for people to do, because we all come to the table with our varying experiences, and it is not that we can forget who we were before we walked in the door. Just as it is the role of members in this place to scrutinise legislation and to say things—to borrow a phrase from Hon Phil Edman’s speech the other night—as they are, and to speak the truth, it is exactly the same for members on the advisory board. They will be required, whether they were appointed by the minister or selected from a list, to fulfil their duties with due independence, complete integrity and a high level of competence. That is what is expected of them.

Hon Darren West: What if there were a change of government and a different minister; would you still have the same level of faith?

Hon NICK GOIRAN: Yes, I would, because, as I said, it is not necessarily about the person choosing the people on the panel; it is about the people who are chosen. I charitably assume that each of those individuals has a level of personal integrity and understands their role. That may not be the case. They may do exactly as Hon Ken Travers has suggested and—let me get on the record—that would be unsatisfactory. That would, in my view, be a breach of their role. I do have a slightly different view than other honourable members on this matter.

Hon Ken Travers: Do you agree that it is an improper purpose to try to abolish a council by extending the boundaries?

Hon NICK GOIRAN: I would not want to make an absolute statement on that, Hon Ken Travers, because there may be circumstances in which that is appropriate. Perhaps an off-the-cuff example might be a scenario like the Town of East Fremantle, a very small town next to the City of Fremantle. Maybe in those circumstances the complete abolition of the Town of East Fremantle to be subsumed into the City of Fremantle is appropriate. I do not want to rule out that possibility and say that it can never be done in any situation. What I do know, Hon Ken Travers, is that it is entirely inappropriate for the City of South Perth. I would say the same if it were the reverse. If the City of South Perth’s boundary were to take over the whole of the Town of Victoria Park, the same principle applies.

Hon Ken Travers: I do not think that was ever intended or, with the way the act is written, that they envisaged the abolition of the two and the creation of a new one.

Hon Nick Goiran: Members should put themselves in the shoes of the councillors of the Town of Victoria Park and the City of South Perth who have had it preached to them for years now that thou shalt amalgamate and to start talking, and they go and do that and put in exactly that proposal only to be told, “Guess what? We are going to take away Burswood from you.” I understand their utter exasperation at their situation.

I conclude by indicating that I am left in the most unenviable position of being expected to support a bill in circumstances in which the case for some of its provisions has not been made. I look forward to hearing the reply to the second reading debate.