Queensland Government

31 March 2020: Edition 5

From the Independent Assessor
Kathleen Florian

My congratulations to the 578 mayors and councillors who have taken office after successfully contesting the March elections. I am certain the start of this term will bring some unprecedented challenges as the COVID-19 pandemic grips the world, causing unforeseen difficulties for the communities that councillors have been elected to serve and the councillors themselves. It is also prompting some changes to the OIA’s procedures which I’ll outline below.

A three-month amnesty for all first time councillors 29 April 2020 – 29 July 2020

Most notably, the OIA is providing a three-month amnesty to all first-time councillors and mayors in relation to allegations of inappropriate conduct and misconduct, except where the matter is serious. This temporary measure is in recognition of the ever-changing impacts of COVID-19 and the steep learning curve faced by new councillors.

The amnesty will run from 5 May–5 August 2020. It is important that complaints relating to first-time councillors and mayors are still lodged with the OIA during this period so we can assess the matter as normal. For lower-level complaints, no further investigative action will be taken but we will contact the subject councillors to provide feedback on their legal obligations and the standards required of them. Serious complaints will continue to be investigated and addressed as usual. It is hoped this initiative will serve as a learning tool for individuals while helping us to understand and to target any induction gaps.

Since the March polls, the Office of the Independent Assessor’s (OIA) jurisdiction has expanded to include Brisbane City Council, which means we now deal with all 77 local governments in Queensland. We have also seen the return of councils at Logan and Ipswich where the local governments had been dismissed. There has been a change in the state’s west as well where Cloncurry gained a councillor as a result of the Change Commission’s review last year.

Given the many new faces in local government and the recent additions to the OIA's jurisdiction, I thought it was timely to reiterate our role and functions. The OIA was created as part of the Belcarra reforms to help strengthen trust in local government. The OIA assesses and, if appropriate, investigates complaints about councillor conduct. Lower-level complaints may be referred back to local government for investigation. The OIA can also initiate complaints when things come to our attention, often as a result of other complaints received. In cases where we suspect corrupt conduct the matter will be referred to the Crime and Corruption Commission (CCC).

All complaints are carefully assessed and a councillor may receive a letter merely advising that the OIA received a complaint against them which has since been dismissed. If a matter warrants an investigation, based on the information available to the OIA at that time , the subject councillor will be advised and will have an opportunity to respond to the allegations in detail before it is decided whether the matter should proceed to the Councillor Conduct Tribunal (CCT) or be prosecuted in the Magistrates Court as a criminal offence. Currently some investigations may take longer than usual to resolve due to the pandemic, but we continue to strive for timely resolutions. The OIA is also extending the time given to councillors and council CEOs to respond to requests for information. The revised deadlines have been provided in an email to all councils.

Preventing conduct offences is another of the OIA’s key functions and we proactively seek to inform councillors about their obligations in a number of ways including the host of resources on our website. In the past I have travelled to councils across the state to deliver information sessions and I’ll continue to engage in these valuable interactive meetings albeit via video link given the current restrictions on gatherings and travel.

The OIA team is currently working from home and can be contacted via phone or email as our normal operations continue. We will also provide updates via our website and on Twitter should there be any additional changes during this time.

Kathleen Florian

Contact: This email address is being protected from spambots. You need JavaScript enabled to view it.
Phone: 1300 620 722

OIA complaint management at a glance

Figures are as at 31 March 2020. NB: 131 investigations relate to one councillor in south-east Queensland.

Complaints: data & trends

Since the OIA was established in December 2018, the majority of complaints have been lodged by members of the public.

The Crime and Corruption Commission (CCC) and the local government sector itself have also consistently been in the top three sources of complaints, although their order has varied. Local government has been in second place since June 2019 which points to a positive focus on integrity and a heightened awareness by councillors of their legal obligation to report suspected misconduct or inappropriate conduct by fellow councillors.

The OIA has now received councillor conduct complaints relating to 61 of the 76 Queensland councils under our jurisdiction for the entire quarter . That is one more council than in the previous three months.

Complaints: South-east Queensland

The graph below shows the number of complaints received about the conduct of councillors in south-east Queensland from 3 December 2018 – 31 March 2020

NB: The complaint statistics for Noosa City Council are affected by the receipt of 131 complaints regarding one councillor and a single issue. All Logan and Ipswich matters relate to the pre-2020 councils. No complaints are shown for Brisbane City Council which was outside the OIA’s jurisdiction until 30 March 2020.

Complaints: regional Queensland

The graph below highlights complaints received about the conduct of regional councillors from 3 December 2018 – 31 March 2020

Complaints during the 2020 local government elections

(22 February– 28 March)

The recent focus on integrity in local government in Queensland extended to the March elections. In the lead-up to the polls the OIA joined forced with fellow integrity agencies, the Crime and Corruption Commission, the Electoral Commission and the Queensland Integrity Commission to ensure the elections were conducted honestly, transparently and fairly #fairforall.

At a joint media conference we warned against lodging vexatious complaints, the inappropriate release of information about ongoing investigations and the misuse of complaints bodies to score political points, whereby complaints are lodged to harm opponents. This messaging was reinforced with an email, signed by all four agencies, that went to councillors and candidates across Queensland.

Throughout the election period the OIA urged all parties to maintain confidentiality regarding unresolved issues. A letter was sent to every current complainant in an ongoing OIA investigation or disciplinary matter urging them to keep matters confidential until due process had been followed. The Independent Assessor also publicly condemned the release of information about ongoing matters.

Similarly, letters were sent to all relevant parties where patterns of escalating and/or tit-for-tat complaint behaviours were identified, warning of the potential penalties for vexatious or improper complaints.

When dealing with media enquiries the OIA sought to balance the right to report on matters of public interest with the need for confidentiality. In most cases the OIA neither confirmed nor denied any complaints or investigations, in keeping with the principles of natural justice and procedural fairness. In one instance it became necessary for the OIA to comment on unresolved matters in relation to one former councillor who was seeking re-election as this candidate’s public comments, on an issue which was uniquely within the knowledge of the OIA, could reasonably be seen to have distorted or misrepresented the facts to voters.

These elections were also monitored by the Independent Council Election Observer (ICEO), a fact-checking unit established to call out false and misleading information that fell outside the remit of legislative bodies including the OIA and the CCC. The ICEO was established by the Local Government Association of Queensland (LGAQ) and was headed by retired judge John Robertson.

In order to report on the councillor conduct complaints experience during the elections, the OIA captured data from the date the notices of elections were published through to election day. Of the 100 complaints lodged during this period, 61 came from members of the public, 28 of which were made by candidates or their spouses while 10 were anonymous. The OIA received just four councillor-on-councillor complaints with the balance coming from other departments and agencies, including the CCC, while one matter was self-referred by a councillor.

No complaints were dealt with as vexatious although one warning was issued during the election period. The OIA also issued a number of warnings about potentially vexatious matters earlier in February where a pattern of irregular complaint activity was identified.

After undergoing an assessment process, 56% of complaints were dismissed or it was determined that no further action (NFA) would be taken. One matter was immediately allocated to the OIA legal team for consideration of disciplinary action, while 18 were progressed to the investigation stage. One matter was referred to the CCC. 

Subsequent to the elections, a further 14 matters were dismissed. It was determined that it was not in the public interest to pursue what were lower-level complaints as the subject councillors were not re-elected or did not seek re-election, and further action represented an unjustifiable use of resources. The OIA continues to deal with serious complaints where the subject councillor is no longer in office.


Investigations and disciplinary matters

Since its inception in 2018 the OIA has commenced 647 investigations, with 40% of complaints progressing to this stage.  37% of investigated matters were subsequently dismissed or it was determined that no further action (NFA) would be taken.  As at 31 March 2020, there were 240 active investigations. A further, 21 were parked pending the outcome of criminal charges and 37 were on hold pending available resources. Ongoing delays in completing investigations are due to the high volume of matters before the OIA.

Investigations have been conducted for 46 of the 76 councils that were within the OIA’s jurisdiction for the entire quarter.

Investigations and disciplinary matters: South-east Queensland

The following graph illustrates the number of investigations into the conduct of south-east Queensland councillors as at 31 March 2020. At the conclusion of a full investigation the Independent Assessor (IA) will either dismiss / take no further action (NFA) in relation to the matter OR commence a statutory natural justice process prior to a possible referral to the Councillor Conduct Tribunal (CCT).

The graph also records the number of those investigated matters that have progressed to the disciplinary process. They have been either decided by the CCT are currently with the CCT or are undergoing a statutory natural justice process.

NB: While a single issue in Noosa generated 131 complaints the matter is reported as one investigation. All Ipswich and Logan matters relate to the pre-2020 councils. There are no results shown for Brisbane City Council as it was outside the OIA’s jurisdiction until 30 March 2020.

Investigations and disciplinary matters: Regional Queensland

The following graph provides the same data as above in relation to regional Queensland councils. View the list of councils in each region (PDF, 150KB).

Investigations: sources and issues

The graph below illustrates the source of complaints that led to an investigation. It should be noted that local government officials have a statutory duty to report suspected misconduct or inappropriate conduct.


What is the Councillor Conduct Tribunal?

Like the OIA, the Councillor Conduct Tribunal (CCT) is an independent body which was established in 2018 as part of the local government reforms in Queensland. It conducts hearings into councillor misconduct allegations as referred to it by the OIA, makes a determination, and imposes sanctions where necessary.

Matters can be heard on the documents or at a face-to-face hearing in Brisbane however COVID-19 is having an impact on the latter. On March 18 the CCT announced the suspension of all face-to-face publicly held hearings for up to three months, and that hearings via video link would be considered. You can see the full announcement here.

The CCT may also investigate the suspected inappropriate conduct of a councillor and make recommendations about dealing with the conduct, if such a matter is referred to it by a local government.

As at 31 March 2020, the OIA had 52 misconduct allegations before the CCT while a further 35 matters had been heard – 25 of these allegations were substantiated, nine were unsubstantiated and one was withdrawn. Many of the referrals to the CCT centred on conflicts of interest which the OIA has previously identified as the most significant misconduct risk in local government. Several matters related to a breach of trust placed in the councillor, including allegations of racism, bullying, sexual harassment and threats. Some other matters included failures to update registers of interests and the misuse or inappropriate release of information.

In most substantiated cases the subject councillors were ordered to publicly admit they had engaged in misconduct. Some other sanctions included fines of up to $700 while some councillors were ordered to undertake training or counselling.

The CCT considers circumstances like a councillor’s attempt to correct a mistake in a timely manner, previous disciplinary history, self -referral or co-operation with progressing a matter, and whether the conduct is escalating. The CCT has stated its orders are designed to reflect community expectations and to act as a deterrent to further misconduct. It has also noted that mayors “can reasonably be held to a higher standard of conduct”.

Legally, the CCT misconduct findings must be published and they can be found on the Department of Local Government, Racing and Multicultural Affairs website. Once the outcomes are published, the Independent Assessor issues a statement outlining the case to build capacity by developing greater awareness of the conduct standards and how the CCT is applying them. The statements are emailed to OIA subscribers and can be found on our website.

Due to the volume of matters referred, the OIA and the CCT are experiencing delays in resolving matters.


A key focus for the OIA has been progressing appropriate matters to the Councillor Conduct Tribunal

95 matters

67 councillors

159 allegations

either with the OIA legal team, with the CCT or decided by the CCT.


Toolkit

Advice on the use of messaging apps

The OIA has collaborated with Queensland State Archives to produce a new guide on the use of messaging apps. It explains councillors’ legal obligations should they discuss council matters via an app and highlights some of the pitfalls of these platforms.

Check the OIA website for other helpful resources including:

  • Best practice tips (PDF, 170KB) for managing high-risk categories of conflict of interest including electoral donors, legal proceedings and reporting another councillor’s conflict of interest.
  • Comprehensive social media guidelines to help Queensland councillors manage their online presence: Your Social Media and You guide (PDF, 2.3MB) and the Queensland Councillor Social Media Community Guideline (PDF, 277KB).
  • To make a complaint to the OIA. Simply use the online form 

    It is designed to enable complainants to provide sufficient information and supporting material to allow the OIA to undertake a robust and timely assessment, or redirect complainants to the appropriate body if their matter is not within the OIA’s jurisdiction.