Your ref: A755704
5 October 2021 Committee Secretary State Development and Regional Industries Committee Parliament House George Street Brisbane QLD 4000
Via email: SDRIC@parliament.qld.gov.au
Dear Committee Secretary
Re: The functions and performance of the Independent Assessor
The Office of the Independent Assessor (OIA) welcomes the opportunity to make this submission
to the State Development and Regional Industries Committee (the Committee) on the functions
of the Independent Assessor (IA) and performance for the 2020-21 financial year.
Background
The OIA was established on 3 December 2018 as recommended by the Solomon Review 1 which
advocated for a centralised system for the assessment of councillor conduct complaints and the
consistent application of standards state-wide.
During consultation the review panel received near unanimous support for the initial assessment
of complaints to be removed from council chief executive officers (CEO). This change addressed
the difficult position that CEOs were seen to occupy when assessing a complaint against a
councillor, who was also effectively one of their employers. It was also considered to be a function
that would be more objectively and independently performed by a centralised complaints body.
The review also recommended that this body investigate conduct complaints and be given
adequate investigative powers to perform this task.
Since the OIA’s establishment the costs of assessing complaints and investigating misconduct
have shifted from individual councils to the OIA.
Oversight
Prior to the 2020 state general election, the OIA reported to the Minister for Local Government,
Racing and Multicultural Affairs and was overseen by the Economics and Governance
Committee.
As a result of machinery-of-government changes following the election, the OIA began reporting
to the Deputy Premier and Minster for State Development, Infrastructure, Local Government and
1 https://www.dlgrma.qld.gov.au/__data/assets/pdf_file/0025/44809/councillor-complaints-review-report.pdf
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Planning, the Honourable Dr Stephen Miles, from 12 November 2020. Oversight of the OIA
transferred to the State Development and Regional Industries Committee.
OIA functions
The Independent Assessor’s (IA) functions/roles are set out in sections 150CU, 150AN, 150AY,
150AZ of the Local Government Act 2009 (the LG Act).
The OIA:
1. receives and assesses complaints about inappropriate conduct, misconduct, and corrupt
conduct by a councillor
2. refers inappropriate conduct to local government to investigate and resolve if, after a
natural justice process, the complaint raises a reasonable satisfaction of inappropriate
conduct
3. refers corrupt conduct to the Crime and Corruption Commission (CCC), unless it falls into
a category of corrupt conduct which may be dealt with by the OIA, pursuant to an
agreement with the CCC2 and subject to the CCC’s oversight
4. where appropriate, investigates allegations of misconduct or corrupt conduct. Corrupt
conduct matters may be referred to the OIA by the CCC for investigation, or if received by
the OIA may be investigated pursuant to the agreement with the CCC, referred to above
5. refers misconduct to the Councillor Conduct Tribunal (CCT) to be dealt with on a
disciplinary basis and bears the onus of proof before the CCT
6. where councillors exercise their right of review of a CCT decision, the OIA also appears
as a respondent before the Queensland Civil and Administrative Tribunal (QCAT)
7. prosecutes breaches of conduct provisions in the LG Act in the Magistrates Court
according to the criminal standard of proof.
In 2020-21, the OIA also engaged in training and prevention activities that sought to educate and
inform councillors and to prevent misconduct and inappropriate conduct. These activities, as
detailed on pages 12-14, were conducted in accordance with a written directive issued in
November 2018 by the Minister for Local Government, Racing and Multicultural Affairs. It required
the IA to “provide advice, training and information to councillors, local government employees,
local governments and other persons about alleged suspected inappropriate conduct, misconduct
and corrupt conduct. This would allow the OIA to provide advice to councillors on matters relevant
to the direction including:
• Recurring or high-risk areas of councillor conduct
• Strategies to manage more complex conduct issues
• Guiding principles on in what circumstances the OIA will prosecute categories of councillor
misconduct”.
2 Agreement is made pursuant to section 40 of the Crime and Corruption Act 2001
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Councillor conduct complaints framework review
In the first quarter of 2021, the Department of State Development, Infrastructure, Local
Government and Planning (DSDILGP) undertook an analysis of the councillor conduct complaints
framework as established in 2018.
The OIA was advised that this analysis found the framework is fundamentally sound and is
achieving the Government’s intent of an independent system for managing councillor conduct
complaints.
The analysis contained some recommendations which included ceasing the ministerial directive
that expanded the OIA’s training and prevention functions. It is believed this measure will allow
the OIA to maintain a strong focus on its core business and reduce workload pressures on OIA
staff.
Going forward the OIA’s training and capacity-building function will be as stated in section
150CU(b) of the LG Act, which requires the OIA to provide advice, training, and information about
dealing with alleged or suspected conduct breaches. Other training and prevention activities will
be conducted by DSILGP.
Other recommendations from the analysis included:
• Further investigation by DSDILGP into resourcing support for the OIA and CCT
• A memorandum of understanding between DSDILGP, the OIA and the CCT to clearly define
respective roles and how the entities interact
• The establishment of a tripartite forum between the three entities that meets regularly to
discuss and clarify issues and provides coordinated action on local governance.
• DSDILGP to explore a review of the LG Act with a particular focus on provisions relating to
conflicts of interest, inappropriate conduct, misconduct, legal representation, and the right of
appeal (QCAT)
• Consideration of minor legislative amendments to streamline delivery of the framework
including ability to withdraw applications
The OIA’s performance 2020-21
Staffing
The OIA had an establishment full-time equivalent staff (FTE) of 10 permanent staff members
amid estimates it would deal with approximately 160 complaints a year, based on historical data.
However, the OIA’s workload has been significantly higher than expected with 2,928 complaints
lodged between the OIA’s inception on 3 December 2018 and 30 June 2021.
Due to these numbers, and the inclusion of all 77 Queensland councils within the OIA’s
jurisdiction, the OIA staff gradually increased between January 2019 and January 2021.
In the 2020-2021 year, the OIA conducted its operations with 11 FTE staff, seven temporary FTE,
and one FTE provided by DSDILGP.
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Complaints received
In the 2020—21 financial year, the OIA received 1,074 complaints containing 1,164 allegations in
relation to 62 local governments. This represented a 4 per cent increase on the number of
complaints received in the preceding year.
The higher number of complaints was not unexpected as 2020—21 was the first full financial year
in which all 77 Queensland councils came within the councillor conduct framework. However, the
size of the increase indicates that complaint numbers have started to stabilise.
The following graphs depicts the number of complaints lodged with the OIA and the Department
of Local Government, Racing and Multicultural Affairs, which received complaints prior to the
OIA’s inception.
The high number of complaints lodged with the OIA is likely due to an increased confidence
amongst complainants to report concerns to a body that is independent of councils, previous
under-reporting, and an ongoing focus on integrity in local government in Queensland.
Complaint sources
In 2020-21, the local government sector lodged 53 per cent of complaints.3 This result was
impacted by a high number of complaints from one council in relation to a single issue. It also
reflected councillors’ statutory legal obligation to notify the OIA should they become aware of
information indicating another councillor may have engaged in misconduct or inappropriate
conduct. A failure to report these concerns may constitute misconduct.
3 These notifications include information from, or complaints initiated by local government officials as well as complaints received by local government from other sources, such as members of public, and referred to the OIA.
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Encouragingly the reporting by the local government sector included an increased number of self-
referrals with 30 councillors reporting themselves to the OIA, up from 11 in 2019-20 and five in
2018-19.
In 2020-21, 37 per cent of complaints were directly lodged by members of the public, 4 per cent
were referred by the CCC, 6 per cent came from other sources (i.e. other government
departments).
Complaint assessments
The OIA assesses all complaints to determine whether they raise a reasonable suspicion of
inappropriate conduct, misconduct, or corrupt conduct.
In 2020—21, the OIA assessed 89 per cent of complaints within 21 working days of lodgement.
Some complaints involved multiple allegations:
• 54 per cent of allegations related to suspected misconduct
• 27 per cent related to suspected inappropriate conduct
• 12 per cent related to suspected corrupt conduct
• 7 per cent related to other matters
The most common categories of complaints were breaches of trust (33%), breaches of the Code
of Conduct for Councillors in Queensland (24%) and conflicts of interest (16%).
Complaints by council or region
The following graphs show the number of complaints received by quarter.
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Annexure A lists the councils in each region.
Assessment outcomes
Corrupt conduct In 2020—21, the OIA referred 34 matters involving suspected corrupt conduct matters to the CCC. Twelve of the 34 matters were received by the OIA in the preceding year. A further 29 suspected corrupt conduct complaint files were reported to the CCC as part of an arrangement between the OIA and the CCC, pursuant to section 40 of the Crime and Corruption Act 2001 (CC Act). This arrangement improves efficiencies for both agencies by allowing the OIA to immediately commence investigating agreed categories of corrupt conduct without first referring the matter to the CCC. The CCC has oversight of these matters and can resume responsibility for a case at its discretion. As a result of amendments to the LG Act which commenced on 12 October 2020, the number of matters that reach the threshold of corrupt conduct has reduced. Misconduct Complaints that raise a reasonable suspicion of misconduct are investigated by the OIA. In some
more complex matters further investigation may be required to determine whether this threshold
is met.
Thirty-seven per cent of all complaints assessed in 2020—21 became an OIA misconduct
investigation. These are detailed on pages 7-8.
Inappropriate conduct The OIA does not have the power to investigate suspected inappropriate conduct unless it is tied to alleged misconduct. Instead, these complaints must be referred to the relevant local government to investigate and resolve.
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In 2020—21, the OIA received 290 inappropriate conduct complaints which accounted for 27 per cent of complaints. Fifty-four of these matters were referred to 26 local governments. Of the 54 matters, 18 were sustained, six were not sustained, five were resolved by alternate dispute resolution, 25 were ongoing as of 30 June 2021 or the OIA was yet to be advised of an outcome.
As such 53 per cent of inappropriate conduct matters were finalised, representing a significant
improvement on 2019-20 when 15 per cent of matters were finalised by councils. This result
follows the introduction of initiatives by the OIA to assist councils to deal with inappropriate
conduct allegations fairly, effectively, and consistently. These are detailed on pages 12-13.
Dismissal/no further action
A decision to dismiss a complaint or take no further action can be made during the assessment phase or after an investigation. Altogether the OIA dismissed or took no further action on 572 complaints which represented 51 per cent of all matters assessed in 2020—21. A request for an internal review of a decision to dismiss a complaint or take no further action following assessment can be made within two months of the case being closed, consistent with best-practice complaints management. In 2020—21, 11 requests for review were received and 10 reviews were completed. In all cases the original decisions were upheld. Improper complaints
The OIA uses a three-step escalation process to identify, manage and deter vexatious and other
improper complaints. At step one a warning is issued to the complainant, at step two the complaint
is dismissed as vexatious and an offence warning is issued, at step three the OIA commences an
investigation ahead of a possible prosecution where a fine of more than $11,000 may apply.
Statistics show this process is effective in relation to the early identification of potentially improper
complaints and in deterring such behaviour. In 2020-21, 34 complainants were escalated to step
two, while two complainants were escalated to step three.
OIA investigations
In 2020—21, 297 new investigations were commenced, including two investigations raised by the
OIA into potentially vexatious complainants. The OIA finalised 187 investigations4, some of which
started prior to 2020—21. It had 225 active investigations as of 30 June 2021.
Investigations involved 46 of the state’s 77 councils and the top three categories of alleged
misconduct investigated by the OIA were:
1. Breaching the trust placed in a councillor [breach of local government principles/councillor
responsibilities] (145)
2. Failure to declare a conflict of interest (67)
3. Influencing/attempting to influence a decision-maker when a councillor has a conflict of interest
(21)
4 One investigation involved 106 complaints in relation to a single councillor and a single issue.
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In order to address the number of complaints requiring investigation, within resource capacity, the
OIA used a formal case prioritisation model. Matters were prioritised when referred by the Crime
and Corruption Commission (CCC) and where the allegations were particularly serious and/or
impacted on a council’s ability to function. Otherwise, investigations are conducted in date order.
The Solomon Review which recommended the establishment of the OIA, called for the OIA to
have appropriate powers to investigate councillor conduct allegations. Chapter5A, Part 4 of the
LG Act provides the OIA with investigation and enforcement powers.
In 2020—21:
• The OIA exercised powers under section 150CH of the LG Act on 119 occasions. This
provision allows investigators to request information that is reasonably necessary to
investigate a councillor’s conduct or a breach of a conduct provision.
• Fourteen notices were issued under section 150CJ of the LG Act requiring the attendance of
a person at an interview with investigators.
• Twenty-eight confidentiality notices were issued under section 150CK of the LG Act, stating
that the person’s attendance at an interview or the information the person provided is
confidential, as is the notice itself. These are issued when it is reasonably believed to be
necessary to ensure the investigation is carried out confidentially or to prevent the commission
of an offence.
• No search warrants were obtained.
If an investigation does not support an allegation the matter will be dismissed or subject to no
further action (NFA). In 2020-21, 54 matters were subject to no further action following
investigations while 62 matters were dismissed at this stage.5 These are important outcomes as
both the councillor and the complainant are notified of the decision and the reasons.
Disciplinary matters
When an investigation supports a reasonable satisfaction that a councillor has engaged in
misconduct, the matter is referred to the OIA legal team to undertake a natural justice process
ahead of a possible referral to the Councillor Conduct Tribunal (CCT).
At this point the OIA legal team issues a notice, pursuant to section 150AA of the LG Act and
provides the councillor with an opportunity to respond to the allegation/s. Any submission by the
councillor or a legal representative must be considered by the Independent Assessor (IA).
In 2020—21, 67 matters involving 31 current or former councillors and 72 allegations moved from
investigations to the OIA legal team. As of 30 June 2021, 33 matters involving 17 councillors or
former councillors and 49 separate allegations were being prepared for or were undergoing a
natural justice process.
5 One matter included 106 complaints about one councillor and a single issue, which were dealt with in one investigation.
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In 2020—21:
• the IA took no further action on seven matters involving seven councillors and seven
allegations after considering councillors’ submissions
• the IA referred 49 matters involving 21 current or former councillors and 75 allegations to the
CCT
• the CCT decided 16 matters involving 12 councillors, including three matters that had been
referred to the CCT in 2018—19 and 13 matters that had been referred in 2019—20.
Allegations against 10 councillors were sustained, while allegations against two councillors
were not sustained.
• As of 30 June 2021, 71 matters, involving 37 councillors and 105 separate allegations, were
before the CCT.
Given the consistently high volume of councillor conduct complaints, there are some delays in
finalising investigations, referring completed investigations to the CCT, and progressing matters
through the CCT.
QCAT reviews CCT decisions may be reviewed to the Queensland Civil and Administrative Tribunal (QCAT). During 2020—21, six councillors reviewed a CCT decision to QCAT and the IA reviewed one CCT decision. One matter, which was reviewed by a councillor in 2019—20, was before QCAT.
Judicial reviews
In August 2020, the Supreme Court of Queensland conducted a hearing into a judicial review
which was commenced by the IA in May 2020. The review was undertaken to seek clarity on
whether the IA has the power to revoke or rescind a referral to the CCT in circumstances where
public interest considerations in pursuing a matter had changed since the matter was referred. A
ruling was delivered on 16 October 2020 stating that while the OIA did not have the power to
formally revoke or rescind an application to the CCT, it may apply to the CCT to do so.
In October 2020, a former councillor applied to the Supreme Court of Queensland for a dismissal
or permanent stay of CCT proceedings. The proceedings related to an IA referral to the CCT in
October 2019, to decide an allegation of misconduct against the councillor. The CCT issued
directions for this matter in June 2020.
A hearing into the former councillor’s request for a dismissal/permanent stay was set down for
one day in February 2021 but proceeded for an additional two days in May 2021. A decision was
reserved.
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Investigations/disciplinary action per council or region
The following graphs shows by council or by region, as of 30 June 2021:
• the number of active investigations into the conduct of councillors
• the number of matters with the OIA legal team undergoing a natural justice
process
• matters before the Councillor Conduct Tribunal (CCT)
• matters already decided by the CCT
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Annexure A lists the councils in each region.
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Prevention activities
The OIA’s prevention strategies sought to inform councillors of their legal obligations and
encourage compliance while highlighting conduct risks and the standards being applied by the
CCT.
Major projects:
Conflict of Interest ‘App’
Conflicts of interest (COI) pose a major misconduct risk in local government and new COI laws
commenced on 12 October 2020 which significantly altered the previous framework. To help
councillors comply with new legislation the OIA collaborated with the Local Government
Association of Queensland (LGAQ) to develop a Conflict-of-Interest ‘App’.
This innovative online tool helps councillors to determine whether they have a prescribed or
declarable COI and when and how to make declarations. It also allows them to email an outcome
report to their CEO to assist with the management of issues.
The ‘app’ was launched in October 2020, prior to the commencement of the new laws. It was subsequently updated, making it easier to navigate. The streamlined version was released in June 2021. Conflict of interest guide: duty to report The OIA worked with the Queensland Integrity Commissioner to produce a guide that outlined a
councillor’s legal obligation to report another councillor’s suspected (undeclared) conflict of
interest (COI). This was developed in October 2020 to coincide with the commencement new COI
laws.
Example policy and guidance: councillors’ interactions with property developers:
After significant consultation, the OIA developed an example policy and supporting guidance in
relation to councillors’ interactions with property developers, lobbyists, and other submitters to
council (submitters).
This initiative aimed to give councillors the confidence to engage with developers, when
appropriate, in the interests of their communities, while also highlighting the misconduct risks
associated with these interactions.
The example policy was not mandatory but was developed to assist councils seeking to
implement or update a policy in what can be a complex area to navigate.
Strategies to improve management of inappropriate conduct complaints by local
governments.
Over time the OIA observed challenges being experienced by councils in dealing fairly and
effectively with inappropriate conduct matters, resulting in a lack of consistency across the sector.
In response, the OIA identified a panel of external investigators who could assist councils by
quickly and independently investigating inappropriate conduct allegations. The OIA conducted a
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workshop with the investigators to facilitate a uniform approach and a template investigation
report was agreed.
In September 2020, the OIA provided all council chief executive officers (CEOs) with details of
the investigators. It also supplied a decision-making matrix, developed in collaboration with the
interim Logan City Council, to help councils to determine a suitable sanction when required.
Telephone trial for councillors in Indigenous local governments
To help councillors to overcome difficulties in reliably accessing the internet and/or computers the
OIA launched a ‘telephone trial’ in the 17 Indigenous local government areas in Queensland.
From 1 March 2021, councillors who became the subject of an inappropriate conduct complaint
could choose to respond to an OIA notice/request for information by phone, rather than in writing,
which is the normal course.
The trial was due to end on 1 September 2021 but will continue at least until the end of December
2021.
Unsuitable meeting conduct video
Mayors and other meeting chairs are required to deal with unsuitable meeting conduct by
councillors as it occurs, and a failure to so may constitute misconduct.
The IA worked with the LGAQ and King and Company Solicitors to produce a training video for
‘Mayors and Chairs’, to upskill them in relation to handling unsuitable meeting conduct. It was
made available in August 2020 via the LGAQ website
Amnesty for first-time councillors post-2020 quadrennial local government elections
From 5 May-5 August 2020 the OIA provided an amnesty for first-time councillors who became
the subject of a conduct complaint, except where the matter was serious. Instead of taking further
investigative action, the OIA provided detailed feedback to councillors about their legal obligations
and standards required of them.
This initiative aimed to build the capacity of newly elected councillors and was in recognition of
the steep learning curve in local government coinciding with the challenges associates with the
COVID-19 pandemic.
Training The OIA delivered tailored training to four councils where emerging, repeat, or systemic issues were observed. These sessions predominantly focused on identifying and managing conflicts of interest.
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Events & presentations:
The OIA took part in several stakeholder events including presentations to the Corruption
Prevention Network, an ‘Ethics and Integrity’ webinar conducted by the Institute of Public
Administration Australia, the Queensland Law Society’s Disciplinary Law Conference, the
Queensland Local Government Reform Alliance’s annual conference, and the LGAQ’s
Indigenous Leaders Forum. The OIA also participated in the Local Government Liaison meeting
which is used to discuss prevention strategies and to develop a multi-agency response to topical
issues.
Topics covered at these events included:
• Councillor conduct complaints of relevance to council finance staff
• Conflicts of interests in First Nations councils
• The OIA’s jurisdiction and councillor misconduct
• Corruption risks and ‘blind spots’ in detecting and managing conflicts of interests
• The interrelationship of workplace bullying and corruption Publications
The complaint landscape in Indigenous councils. This report provides a snapshot of the
complaints received by the OIA in relation to councillors in Queensland’s 17 First Nations local
government areas.
The analysis was undertaken to facilitate a better understanding of some of the unique and
complex issues arising in First Nations communities. It may be used to inform training/capacity-
building measures. The report was published on the OIA website in February 2021.
Insight. The OIA publishes a quarterly report, Insight, which details complaint volumes, trend
analysis, emerging issues and themes, prevention advice and acts to inform broader prevention
priorities and opportunities.
Sector publications. The OIA contributed to local government sector publications by the LGAQ
and Local Government Managers Australia (LGMA). These columns generally focused on
recurring or high-risk areas of councillor conduct and strategies to manage more complex conduct
issues.
Public statements. The Independent Assessor routinely issues public statements in relation to
determinations made by the Councillor Conduct Tribunal (CCT). They explain how the CCT is
applying standards so that councillors can apply this information to their own circumstances.
Website updates: In 2020-21 resources for councillors were made available on the OIA website
as they became available.
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Conclusion
The OIA was established with strong sector support to bring a fair, objective, and consistent
approach to the management of councillor conduct complaints. Having a centralised regulatory
body has eased the financial and other pressures on councils and CEOs however, the current
framework has also delivered a new level of oversight which has required a cultural adjustment
that continues in some areas.
Effectively dealing with disciplinary matters works to strengthen the integrity in local government
and operates as a barrier to escalating conduct. Halting inappropriate conduct can prevent an
escalation to misconduct and halting misconduct can deter corrupt conduct. These are important
outcomes for the sector and Queensland communities and require ongoing focus.
Ongoing oversight also help to ensure that councillors act in the public interest throughout the
four-year term, while the transparent reporting of conduct issues ensures the public is well-
informed when electing community leaders.
Going forward, and with complaint numbers expected to continue to stabilise, the OIA will be directing its energies into improving the timeliness of investigations and referrals to the CCT, where appropriate.
I welcome the opportunity to discuss this submission and the OIA’s performance.
Yours sincerely,
Kathleen Florian
Independent Assessor
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Annexure A: Councils per region
Greater Brisbane / Downs regions
• Goondiwindi Regional
• Toowoomba Regional
• Western Downs Regional
• Southern Downs Regional
• Lockyer Valley Regional
• Somerset Regional
• Scenic Rim Regional
Wide Bay Burnett
• Bundaberg Regional
• Fraser Coast Regional
• Gympie Regional
• North Burnett Regional
• Cherbourg Aboriginal Shire
• South Burnett Regional
Central Queensland
• Rockhampton Regional
• Livingstone Shire
• Gladstone Regional
• Banana Shire
• Central Highlands Regional
• Woorabinda Aboriginal Shire
Far North Queensland
• Cairns Regional
• Cassowary Coast Regional
• Cook Shire
• Douglas Shire
• Mareeba Shire
• Hope Vale Aboriginal Shire
• Lockhart River Aboriginal Shire Council
• Tablelands Regional
• Yarrabah Aboriginal Shire
• Wujal Wujal Aboriginal Shire
North Queensland
• Burdekin Shire
• Charters Towers Regional
• Hinchinbrook Shire
• Palm Island Aboriginal Shire
• Townsville City
Greater Whitsunday
• Isaac Regional
• Mackay Regional
• Whitsunday Regional
Far West
• Barcaldine Regional
• Barcoo Shire
• Blackall-Tambo Regional
• Boulia Shire
• Diamantina Shire
• Longreach Regional
• Winton Shire
South West
• Balonne Shire Council
• Maranoa Regional Council
• Murweh Shire Council
• Paroo Shire Council
• Bulloo Shire Council
• Quilpie Shire Council
North West and Gulf
• Burke Shire
• Carpentaria Shire
• Cloncurry Shire
• Croydon Shire
• Doomadgee Aboriginal Shire
• Etheridge Shire
• Flinders Shire
• McKinlay Shire
• Mornington Shire
• Mount Isa City
• Richmond Shire
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Torres and Western Cape
• Aurukun Shire Council
• Kowanyama Aboriginal Shire Council
• Mapoon Aboriginal Shire Council
• Northern Peninsula Area Regional
Council
• Napranum Aboriginal Shire Council
• Pormpuraaw Aboriginal Shire Council
• Torres Shire Council
• Torres Strait Island Regional Council