Thursday, October 26, 2017

Glenorchy: What Happens If Most Of A Council Quits While It's Suspended?

Welcome to Glenorchy City Council.  You can be checked out any time they like, but you can never leave.

That was the vibe following recent developments in an already strange and long-running Tasmanian local government dispute, one that is daily creating newer and more exotic flavours of political-law popcorn for electoral ambulance-chasers like me.  My sympathies are with the poor ratepayers of Glenorchy, who are becoming literally poorer ratepayers as they are required to support this niche entertainment as it drags on into season after season.

To begin partway through about book six of Glenorchy Game of Thrones, the GCC has long been wracked with factional strife and hackery (which has often crossed state party lines in odd ways) despite having, at times, some very well regarded Mayors.  The 2014 election saw a team headed by then one-term alderman Kristie Johnston run on an agenda to "clean up Glenorchy and clean out the council".  They were endorsed by Denison federal independent MP Andrew Wilkie - not normally one to put his name to anybody else's bid - who denounced the existing Councillors in no uncertain terms.

Johnston thrashed incumbent Mayor and long-term alderman Stuart Slade with 58.3% to Slade's 22.7% in one of the state's most sensational mayoral wins on record.  Former federal MP Harry Quick was elected Deputy on Johnston's ticket, and two incumbent Councillors were shown the door with miserable primary vote shares.  However, Daenerys and her dragons had no sooner claimed the Iron Throne than her problems began.  Johnston's team had been a small one, and not all of them had won seats, so Johnston arrived as Mayor without the numbers.  This is a common problem with directly elected mayors, the common problem with indirectly elected ones being murky backroom Rats In The Ranks shenanigans, as on display this week in WA.  A similar situation to Glenorchy was also seen on the now-dismissed Huon Valley Council, though their Mayor was much more narrowly (and quite surprisingly) elected, and had nothing resembling the scale of Johnston's mandate.

Johnston's term has therefore been dominated by conflict between supporters and opponents of her reform attempts, and also by conflict between the Mayor and General Manager (a standard feature when the Mayor doesn't have the numbers).  It didn't help her that despite running with Johnston at the 2014 election, Quick has from the start been far from a consistent supporter of her on Council voting, and has fallen out with his endorser Wilkie during the term. I know nothing of the causal issues there.

Councillors all vote independently to some degree, as on Hobart Council, and a lot of motions are unanimous.  Yet a quick browse of the Minutes at various times through the Council's term shows that Glenorchy Council's defining voting pattern on divided votes is a 7-3 lineup with Mayor Johnston, her ticketmate Jan Dunsby and longer-term alderman (and former state Liberal candidate) Matt Stevenson frequently together on the losing side of votes.  Accustomed to the pattern on Hobart Council, where lone dissents by mayors are rarer than a frugal Christmas decoration, I was amazed to even see lone dissents by the Mayor on motions to accept the minutes of the previous meeting!  When that happens, whoever's fault it is, a Council is well beyond mayoral control.

A Board of Inquiry process was started in October 2015 and the Council was suspended for six months in February this year, then again in August.  Various legal actions have been undertaken by some Councillors through this process, which have often had the effect (deliberately according to their critics) of delaying the process. Finally last week the Government had had a gutful and Local Government Minister Peter Gutwein announced that legislation would be introduced to sack the Council and hold an early election in January 2018.  The voters having also had a gutful, this announcement was for the most part gushingly received.

Glenorchy Council was due for an election alongside the other Councils in October 2018.  The legislation, which has yet to pass through parliament, would mean that the city would not have that election at the ordinary time, giving the new Councillors a term of nearly five years.

Once the government waved a fresh election around some Huon Valley residents wanted one too, since their council has been sacked for over a year now.  Was Huon Valley not considered important enough, or (as many watchers enquired from the grassy knoll) was this really all about discouraging Johnston from running in the state election where she would be a threat to the Liberals' must-win second seat in Denison?  It took some time for Minister Gutwein to give a possibly coherent  explanation of the difference between the two, but he pointed to the Huon post-Board of Inquiry process still running its course.  Huon has not seen the kinds of protracted legal fighting as Glenorchy, so while its council has also been booted it seems that that is being tidied up less problematically.  (Huon residents may be able to comment on whether this is a legitimate defence.)

There are two specialist issues I would like to mention with the proposed Glenorchy election: firstly, timing.  Under the expected schedule, I understand ballots will start being mailed out on January 2nd, with the close of voting on January 16th.  In the Tasmanian postal voting process (do not accept cheap national imitations) votes are mailed to households at random times over the first four or so days of voting.  This means voters would be getting voting papers in the first week of January, when many houses might be vacant, increasing the risks of ballot theft and non-delivery.  The staggered delivery schedule counteracts this to a degree, compared with the way the Marriage Law Postal Survey has batch-delivered to particular areas.  Many other voters will be away and may have difficulty voting.  Why early January and not even, say, two weeks later hasn't been made clear.

Secondly, informal voting.  Councils in Tasmania experienced massive informal voting rates in 2014 as a result of pointlessly strict formality rules.  If a voter on the councillor ballot omits or repeats any number between 1 and the number of vacancies (in this case 10), their vote is informal.  Glenorchy had one of the more modest increases in the state (up from 3.6% to 4.6% - ten Councils saw their rate more than double) but it's still too high.  Although a Legislative Council enquiry recommended that the government investigate savings provisions, I have seen no further progress on the issue.

Mass Resignation

Shortly after Minister Gutwein announced the whole council was being given the boot (LegCo willing) came a startling development.  All the aldermen except for Johnston, Dunsby and Stevenson tried to resign in advance of the expected dismissal of Council.   Stuart Slade,  Steve King, Jenny Branch-Allen, Christine Lucas, David Pearce and Haydyn Nielsen issued a joint statement (which I haven't seen), while Quick was not involved in the statement but attempted to quit separately.

Some of these (at least Quick and Pearce) have said they wouldn't stand in the January election anyway, but what the remaining suspended councillors intend is unclear to me.  So is this:

* a protest?
* an attempt to cause chaos and muddy the waters surrounding the dismissal legislation?
* an attempt to rescue their CVs from the stain of having been sacked?
* a sign that the councillors think they're in big trouble over the engagement of a Jeff Kennett related firm?
* a pre-election gesture for public support?
* an attempt to cause a by-election so some of them can run for it and obtain a new mandate?
* a sign they are actually all fed up and want to leave?
* just 4 the lulz?

At this stage I don't know, but will edit in the explanation if I find one.

The mass resignation sparked two issues - firstly, can they resign?  The initial response from the Director of Local Government was that they couldn't, because they were currently suspended and held no position to resign from.  This highlights an apparent conflict between two sections of the Local Government Act.  Section 47 says that "A councillor may resign from office at any time".  Section 215(5) says that the Minister may "suspend all the councillors of the council from office", which is what has happened.  Hence the argument that since they are suspended from office, they're not in office, and you can't transition away from a situation you are not in.  You can't leave a nightclub if the bouncer threw you out and you're lying on the pavement outside it.  You have to get back into the nightclub first, and then you can leave.

For all this idea's merit in the formal philosophy of the law of the excluded middle, it would seem to create a few problems.  It would seem only fair that a person should be able to relinquish not only their current situation as concerns holding office, but also their consent to be returned to office during the rest of their elected term.  The main reason for that is that even continued potential membership of a council might limit some other right a person might not want limited.  It has been claimed (and is enforced on its preselection candidates by the ALP) that being a member of a local Council is a disqualifier for election for federal parliament.  So a federal candidate who is suspended from a council might have very good reason indeed to relinquish their right to be returned to it.

Indeed, if a suspended Councillor has been temporarily removed from the office of Councillor, are they at that time a Councillor at all?  If they are not, that would seem to make them eligible to run in elections for other Councils while suspended, which might in different circumstances allow for double-dipping.  Or, if a suspended Councillor is a Councillor (even if not in office), then they can say that they wish to relinquish the status of Councillor-not-presently-in-office and become not a Councillor at all.

So, with the usual I-am-not-a-lawyer disclaimer (the "ambulance-chaser" metaphor was a loose one) it seems to me that either the law does let suspended Councillors leave the Council, or else the law is a bit of a donkey.  Let's see where this one goes.

Mechanics of replacement

Perhaps if there is a ruling that the Councillors can't resign, and then those attempting to resign try to challenge it in court, the court action will take so long that by the time it is resolved the council will be dismissed anyway.  But failing that, if the resignations are binding, we could have the surreal situation of a process to fill seven vacancies out of ten on a Council which (LegCo willing) is suspended and will soon be dissolved for a new election.  This unprecedented situation could ignite a fevered electoral contest for the right to be the Wayne Dropulich of the Tasmanian local government scene! The stakes have never been smaller! Fight!

There is no method in the Local Government Act for holding a Hare-Clark recount for multiple casual vacancies at the same time.  In theory, one could be created, but it's not what the legislation says.  My reading at this stage is that the solution is a series of seven single recounts.  An order in which the Councillors "resigned" appears to have been provided, so the remaining candidates who were not elected in 2014 can be contacted to see if they wish to contest each vacancy.

I think it would be possible to call for nominations for all vacancies together, thus cutting the advertising costs and cutting the timeframe (eight days are required for candidates to have time to respond to the consent request).  Each vacancy is filled, then on to the next, then on to the next (the votes are all computer-recorded so these recounts could all be done in one day), until a vacancy is reached that has no consenting candidates because they have all been elected to other vacancies.  At this point, a by-election process could be started for the remaining vacancies, but before that got too far down the line Parliament would probably have dismissed the Council and abolished all the vacancies anyway.

Since there were precisely 17 candidates for 10 positions in 2014, holding seven countbacks would mean that any of the failed candidates in 2014 who wished to hold the prestigious non-office of Suspended Glenorchy Councillor until the parliament sacked them from it would then do so.  But probably not everyone would renominate (some of them are reportedly interstate) so it's unlikely all the vacancies would be filled.

If the LegCo for some reason blocks or delays the government's dismissal of the council, then some combination of by-elections and recounts might offer hope of a resolution anyway.  With seven new Councillors the Mayor might get enough supporters to control the Council until the 2018 election.  However with the cost of the by-election and advertising the recounts added to the cost of a 2018 election on the normal schedule, this would be a very expensive way to fix the problem, as well as resulting in the brief return to Council of several candidates who voters rejected at the last election.

What next?  Can things get any stranger or more expensive?  I will update this article with further plot twists.

Update 1 Nov: Possibly as a concession that the councillors can resign, the Government will amend its dismissal legislation to require, including retrospectively, that there be no by-elections or recounts for the resigned positions.  The process of replacement could in theory get under way before the legislation passes but presumably some discretion would exist to avoid such an outcome.

Update 23 Nov: Glenorchy council has been sacked by legislation.  This locks in the (silly) early January election timetable mentioned above.

1 comment:

  1. Comment from Barry Reynolds:

    This business with the GCC is friggin' ridiculous as are most councils. There is this never ending thing about amalgamations but nothing ever happens, and when it's brought up all that is heard is "we're investigating resource sharing with our neighbouring council and there are reports being prepared and blah blah blah". My idea would be to force the amalgamation of all councils into five, based loosely on the state electoral boundaries and a return to the ward system with one councilor elected from each ward the number of which would be determined how? I'm not sure. Anyhoo I'm interested in reading other peoples opinions on this subject.


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