30 September 2019: Edition 3
From the Independent Assessor
I am acutely aware of the need for fair local government elections with March 2020, just five months away.
In the lead up to the elections, integrity agencies often see an increase in complaints that are lacking in substance, are politicised, or are made for ulterior purposes.
The OIA has given careful consideration to how, as a complaint agency, we can best support local government elections where candidates and sitting councillors are judged by their communities on their merits. This edition of Insight focuses on the lead up to the 2020 elections.
What you can expect from the OIA in dealing with complaints in the lead up to the 2020 elections
The Councillor Code of Conduct and campaigning
The OIA has started to see an increase in the number of councillors lodging complaints about other councillors. Further detail is highlighted in our Case Study.
Behavioural standards 2 and 3 in the Code of Conduct for Councillors in Queensland require that councillors, at a minimum, show respect for other councillors, and members of the public, respect other views and opinions and avoid making unnecessary or irrelevant comments in order to undermine other councillors, or their positions.
The OIA consistently takes a strong position on the requirement that councillors be respectful in their dealings with members of the public. It is recognised however that - particularly in the lead up to the elections - the Code of Conduct should not be misused to stifle robust discussion and debate between councillors, and with candidates. Such debate is necessary to further the community’s understanding of local issues and where councillors and candidates stand on these issues.
The line in the sand however, is where a councillor makes comments that are unnecessarily personal and offensive or publicly makes comments which are misleading or untrue about another councillor or candidate.
Depending on the context of any misleading or dishonest statements, this may result in a complaint being categorised as either inappropriate conduct or as misconduct.
Timely assessment of complaints in the lead up to the election
Currently, 82% of all OIA complaints are assessed within 21 working days. In the lead up to the election frivolous or vexatious complaints or those that result in no further action will continue to be identified and dealt with expeditiously during the assessment phase.
Acting on indicators that complaints are not made in good faith
The OIA encourages complainants and subject councillors to maintain confidentiality about complaints being undertaken by the OIA until such time as the OIA has had the opportunity to assess and, if necessary, investigate the matter.
In particular, what we seek to avoid is complainants deliberately publishing serious and unsubstantiated or false allegations in the lead up to the election; for the purpose of unfairly influencing the electorate. The OIA will be alert to indicators that a complainant may not be acting in good faith.
The indicators include:
- the publication of complaints made to the OIA in the lead up to the election,
- a pattern of apparently sitting on older complaints and making them public near the election,
- the making of complaints that are frivolous in nature,
- arranging for complaints to be made by connected third parties.
Depending on the context and circumstances, this conduct may result in the OIA raising an investigation into whether the person has committed the offence of making an improper complaint.
The OIA can dismiss a complaint on the basis that it is not made in good faith, but it may also prosecute people who make frivolous or other improper complaints. We recognise that while the OIA has a responsibility to enforce the legislative standards for councillor conduct, we also have a responsibility to address unacceptable complainant conduct.
People who can be charged include members of the public, electoral candidates or prospective candidates.
On the assent of the Local Government Electoral (Implementing Stage 2 of Belcarra) and Other Legislation Amendment Bill 2019 this offence will also apply to local government officials including councillors and council Chief Executive Officers.
Complainants who are genuinely unsure of whether their complaint has substance have nothing to fear if they keep their complaint confidential and allow the disciplinary process to take its course.
Read more on what you need to know about vexatious, frivolous and complaints made not in good faith, later in this edition of Insight.
The OIA cannot guarantee that the complaints process will not be misused in the lead up to the election, but we will certainly be taking all reasonable measures to ensure that this is not the case.
OIA Annual Report 2018–19
Read the first OIA Annual Report 2018–19 (PDF, 2.9MB) to learn more about our challenges and opportunities.
Brisbane City Council complaints
Brisbane City councillor conduct complaints will come into the OIA’s jurisdiction on the 30 March 2020, after the council elections. Until then, complaints should continue to be made to the BCC.
Source of complaints
The majority of complaints continue to be from members of the public. The seriousness of complaint issues remained steady this quarter with 19% assessed as possible corrupt conduct and referred to the Crime and Corruption Commission.
Conflict of interest remains the most complained about issue followed by a breach of the Code of Conduct for Councillors (PDF, 150KB).
|Category||30 September 2019||30 June 2019|
|Conflict of interest||293||23%||221||21%|
|Breach of Code of Conduct||224||17%||191||18%|
|Breach of trust||173||13%||153||14%|
|Out of jurisdiction||147||11%||106||10%|
|Dishonest / Impartial||117||9%||96||9%|
|Breach policy / Guidance||99||8%||85||8%|
|Material personal interest||44||3%||41||3%|
|Register of interests||44||3%||37||3%|
|Fail comply Tribunal order||2||2|
|Repeat inappropriate conduct||1||1|
|Fail report conduct||2|
|Unclassified as at report date||9||1%||24||2%|
The OIA received more than 1,030 complaints to 30 September 2019, with 210 in the last quarter.
While our assessment has continued to meet high targets of 82% being assessed within 21 working days, our investigations have increased to 161 with 46 matters either on hold or parked pending resources or action in other jurisdictions.
This high volume of complaints has placed significant pressure on our resources and delays are being experienced in completing investigations and in referring completed misconduct investigations to the Councillor Conduct Tribunal for determination.
Looking ahead, it is expected that councillor complaint numbers may increase again in the lead up to the March 2020 local government elections and as Brisbane City councillors come under the OIA’s jurisdiction.
As previously discussed, the OIA will proactively implement strategies to minimise the politicisation of councillor complaints in the lead up to the council elections. Frivolous or vexatious complaints or those that result in no further action will be identified and dealt with expeditiously.
As the OIA reached its 10th month of operation, a key focus has been on progressing appropriate matters to the Councillor Conduct Tribunal.
either with the legal team, with the CCT or decided by the CCT.
South East Queensland
The graph highlights complaints received against South East Queensland councils in the last quarter as a proportion of the complaints that the OIA has received since 3 December 2018. All matters regarding Ipswich and Logan City Councils relate to former councillors. Brisbane City Council is not currently in the OIA’s jurisdiction.
The OIA has now received councillor conduct complaints in relation to 54 out of 76 Queensland councils. Councillors were the subject of complaints from three more councils this quarter.
Council regions with the greatest increase in complaints this quarter were the Far North, Greater Brisbane/Darling Downs, Wide Bay/Burnett and Torres/Western Cape. View the list of councils in each region (PDF, 150KB).
Where do the complaints come from?
The OIA receives complaints from four main sources; the public, councillors, the CCC and OIA itself can raise a complaint.
Since the establishment of the OIA, councillors have lodged 138 complaints about their fellow councillors involving 20 different councils.
A total of 56 of these complaints were dismissed or marked no further action following assessment of the complaint. The OIA investigated 60 of these councillor initiated complaints. A further 25 complaints were dismissed after they were investigated and 35 of these matters progressed to the legal and CCT process.
The OIA has received 466 complaints from members of the public. A total of 308 of these were dismissed or marked no further action following assessment. The OIA went on to investigate 158 of these complaints, with a further 36 also dismissed or declared NFA after investigation and 122 matters are either ongoing or are progressing through the CCT process.
One person raised 52 complaints about one council, and 23 of these complaints resulted in OIA investigations.
The CCC will often assess complaints and refer corrupt conduct or misconduct matters to the OIA for investigation. It has referred 178 matters to the OIA.
The OIA has raised 42 own motion investigations arising out of information received, with 24 of these turning into investigations.
Vexatious, frivolous, not in good faith.
What you need to know
The OIA has a 3-step escalation process to deal with complainants and complaints that are frivolous, vexatious and other improper complaints. It is recognised that there may be occasions where complainant behaviour is so serious that the OIA’s response will move directly to Step 3.
This escalating process has assisted in managing all but one repeat complainant.
Clearly the OIA will not consider a complaint to be vexatious or otherwise improper if it has substance.
The most effective strategy for managing motivated complainants is to focus, not on the complainants, but the councillor’s own conduct to ensure they are compliant with the conduct provisions of the Act.
Step 1 – OIA dismisses a borderline improper complaint
Step 2 - OIA dismisses as vexatious and warns
Step 3 – OIA may commence an investigation into the complaint
Resources for councillors
There are new discussions in our web Resources for councillors that may be useful in guiding councillors’ understanding of the standards being applied by the Councillor Conduct Tribunal and other courts. The new material includes:
- Can comments made on a councillor’s private social media account be inappropriate conduct or misconduct? (PDF, 178KB). CCT decision, 16 August 2019
- Meaning of Breach of Trust in Section 176(b)(ii) (PDF, 167KB). CCT decision, 14 August 2019
- Perceived conflict of interest arising out of a relationship with a consultant on a development application” (PDF, 101KB). CCT decision, 14 August 2019