Local Government Elections 16th October 2021

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LAW REFORM

  • Compulsory LG elections reduce risk of interest groups controlling outcomes
  • Lack of compulsory LG elections in WA contributes to maladministration, electoral misconduct and corruption risks including the LG electoral manipulation: see “Democracy and Its Crisis” by A.C. Grayling
  • Compulsory LG elections voting in Victoria, NSW, Queensland, Northern Territory (no LG in ACT)

Please email LG Minister Carey to request compulsory voting in WA LG elections and a LG Inspectorate to enforce the LG Act Minister.Carey@dpc.wa.gov.au

For LG election information see https://www.elections.wa.gov.au/elections/local (new window)

28 July 2021 is a big day

  • This is the LAST DAY a Council can decide by absolute majority that the CEO is not to be the Returning Officer for the upcoming LG Elections.
  • A Returning Officer is the principal LG electoral office and conducts LG elections.
    Council can with the permission of the Electoral Commissioner choose ANOTHER person or the Electoral Commissioner to run the upcoming LG election but this must be before 28 July 2021
  • City of Perth report including large chapter about electoral manipulation and LG governance processes not up to resolving, is essential reading for prudent EMs.
  • City of Perth Report: Volume 2, part 2.2.1, pages 58-100 view here

Current EMs and Other LG Candidates Conduct

Behaviour Provisions (cl. s 8,9,10) (contravention dealt with by Council or delegate):
All Candidates:

  • can only publish factually correct material
  • cannot bully, harass, abuse or threaten, use offensive or derogatory language when referring to another person
  • disparage character of EMs, candidates or LG officers Conduct Rules (rules 17,18, 20) (minor breach dealt with by Standards Panel)
  • EM Candidates:
    ◦ cannot use office to secure advantage for themselves or any person or disadvantage to any other person, cause detriment to LG or other person
    ◦ directly or indirectly, use LG resources (LG property or services) for an electoral purpose (persuading voters to vote) unless authorised by the LG or CEO
  • All Candidates:
    ◦ cannot direct, influence, abuse, threaten LG employee

Resources, Local Government means
 any property, equipment, or material of any kind, and the financial, physical or human resources of or under the LG control,  including resources acquired through contract including by lease and/or the personal services of an employee during his or her hours of work.

TAKE HOME MESSAGES
Elected Members should probably not be using Council supplied phones or computers for election purposes, such as creating, uploading, distributing electioneering information , unless authorised by Council.

CANDIDATES who are/are not EMs but are elected are caught by the behaviour provisions and conduct rules.
Relevant rules are here Local Government (Model Code of Conduct) Regulations 2021 (WA)

Candidate Electoral offences include bribery, undue influence, printing or publishing electoral material that does not have required authorisation, makes misleading, false or defamatory statements, canvass near a polling place, interferes with or takes custody of ballot paper, interferes with electors: LG Act s.4.85 -s.4.98.

Caretaker Policies

Prudent Councils will review their existing or adopt a Caretaker Policy ahead of upcoming LG elections.
Some caretaker policies apply only from around 35 days before a LG general election, but this is only one OCM cycle and is only around 6 days before election packages are posted (after which absent or early vote can be submitted).
Prudent LGs will apply caretaker principle to LGs to minimise any bias impacts on or from upcoming election; and apply a caretaker period to outgoing CEOs to avoid appointments and dismissals of employees, and other decisions that might adversely affect an incoming CEO.

Definition:
LG CARETAKER PERIOD means enters a period in which a LG refrains from commencing or implementing major decisions, but normal administrative work continues.

Governance – Required Registers

ELECTORAL ROLL (residents roll, & non-resident owners and occupiers roll): CEO must keep and give public access at LG offices but right to a copy is limited to request being made in manner and form approved by CEO, and CEO satisfied information will not be used for commercial purposes.

ELECTORAL GIFTS: CEO must keep register for donor names and candidate recipients (from 5 September) and publish on LG website and make access available at LG offices

POSTAL VOTERS: CEO or RO is required to record in register names of persons who applied for postal votes in LG election that is not a postal election.
QLD CCC, as part of Operation Belcarra, identified serious corruption risks related to LG election campaigns and funding see
https://www.ccc.qld.gov.au/public-hearings/operation-belcarra-reforming-local-government-queensland
“Manipulation of the electoral process strikes at the heart of the democratic system of local government representation … the City’s processes were not up to the task set and failed to adequately identify and deal with issues of electoral manipulation” City of Perth 2020 Inquiry report findings: City of Perth report synopsis page 19

Council Responsibilities

  1. Victorian LG (compulsory) 2020 elections’ highest number of complaints related to contribution, authorisation or distribution of election material. Other complaints related to allegations of bribery, intimidation or improper influence, misuse of the voters’ roll, interference with postal ballots.
    https://www.governmentnews.com.au/complaints-about-victorian-local-govt-elections-soar/
  2. Some CEOs, officers, and EMS may have a conflict of interest in LG Election outcomes, especially against Councils and minority EMs who are asking unwelcome governance questions. CEOs and officers have significant powers to influence LG election outcomes.
  3. A prudent Council might:
    • require reporting to Council about voting rolls, especially any striking off/refusal to register voters before rolls close on 27 August 2021
    • not have their CEO as returning officer
    • resolve their preference not to have LG officers as electoral officers
    • will review its signage local laws as it applies to election material and resolve how any discretion is to be exercised under that law is to be exercised by CEO and officers, amend the delegation register as necessary, require the CEO to give comprehensive local notice ( as defined) about election signage so there are no nasty surprises for the uninformed, even going so far as to waive any election signage application fees or charges, require officers to fast track any electoral signage applications
    • resolve that ballot papers can only be sent to directly to electors address as shown on state or federal voting register
    • require an independent audit of electoral roll if any concerns about roll
    • require all election related complaints to be brought to notice of Council

Rules Notice, Registers, Voting, Offences

Local Government Act 1995 (WA) Part 4, s.4.1 – s.4.99
Electoral Act 1907 (WA)
https://www.legislation.wa.gov.au/legislation/statutes.nsf/actsif.html
Local Government (Elections) Regulations 1997 (WA)
Local Government (Model Code of Conduct) Regulations 2021 (WA)
Local Government (Administration) Regulations 1996 (WA)
https://www.legislation.wa.gov.au/legislation/statutes.nsf/subsif.html
If downloading legislation, download WORD version, so you can search, cut and paste relevant sections
See WAEC website for explanations, synopsis https://www.elections.wa.gov.au/elections/local

 

 

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