As observers of local politics are aware of, there is a controversy with regards to the new Council Code of Conduct (CCC) that the majority at Kangaroo Island Council has defined.
The councillors in the opposition refuse to sign it, for a number of reasons; whatever their reasons, considering the Local Government Act (LGA) and other higher provisions, their position is perfectly valid, legally and politically: they do not want to sign something they disagree with, and that should be it.
Nevertheless, the majority in Council wants to force the two remaining members of the opposition to sign the CCC.
This would all be another tempest in the local teacup, were it not for two comments made by the SA Ombudsman, Richard Bingham, in his SA-Ombudsman_Report_012-10_KIC_Confidentiality_informal-gatherings of 4 Oct. 2012
Item # 46:
“I consider that the code of conduct applied to Crs Chirgwin, Liu and Walkom even though they did not sign it.”
And in his final, additional comments:
“1. That Crs Liu and Walkom should sign the council’s Code of Conduct (…)”
The LGA is a complex, cumbersome and fuzzy piece of legislation… I have gone through it again and have tried to understand how the Ombudsman’s positions could be legal ones rather than just political ones: well, his first position effectively seems valid, but it still seems to me that there is no way a councillor could have his hand forced into signing a CCC.
Not being a lawyer though, I will not share in detail my own conclusions, which by necessity would be immaterial. But I can nevertheless make a general comment.
This controversy, of forcing councillors to sign a CCC they disagree with, occurs Statewise: see for example, in appendix, the controversy with regards to Ceduna Council.
The official position of proponents of forcing councillors to sign a CCC is that a council must have the tools for punishing a misbehaving councillor.
At first hand, this would seem reasonable for those with no experience of political processes, but this is missing the forest for the tree.
If a councillor seriously misbehaves (for example is corrupt), he’s legally and politically liable, CCC or not. The Code of Conduct is basically a gentlemen’s agreement for other, non essential disputes that the majority considers as misbehaving, but that would not be considered as such in a court of justice.
In a functioning, harmonious Council, where mutual love and respect reign, with sweet music and a lot of shoulder pats, a CCC would be a nice, feel-good document — with no real impact whatsoever. But when the CCC is meant to be used by the majority to oppress the minority and suppress dissent, that’s altogether a different question…
It must be noted that if resistant councillors finally signed the CCC out of fatigue, it would, for all practical means, not have much practical impact: repeat, a CCC is just a feel-good document. But it would have an important symbolic impact (and in politics symbolism is a large part of the game): the dissidents would have been forced publicly to say “uncle”, they would feel psychologically weakened like any bullied person is, and that’s sweet music for those with the upper hand in the game.
Dr Gabriel Bittar, Kangaroo Island
Appendix
Information Sheet 1
The West Coast Sentinel Thursday, March 29, 2012 carried [Ceduna, SA] Mayor Suter’s message 
to the wider community.
What’s missing from the Mayor’s Message is the skulduggery in the Ceduna Councils, Elected Member Code of Conduct and its companion policy of complaint handling.
The Elected Members Code of Conduct attempts to remove the rights of individual councillors to question the actions of council and of other elected members. It is a document which attempts to cajole councillors by signing up to a policy which then subjugates them to Councils will. For those who have signed up to this Policy the community must question their ability to independently represent the people who elected them to public office. For those who see through the ruse, the Mayors Message is an attempt to bully them into signing up to this disgraceful policy.
The public role of Councillors places many requirement of accepted behaviour; but this policy is an attempt to add unacceptable additional requirements. The policy attempts to have the individual sign up to a false unity where none may exist. And if such differences do emerge then it may reflect adversely on a Council – that’s democracy. The code of conduct attempts to remove that privilege. This Mayor’s Message is clearly another attempt to bully and harass (Policy 1.47 Elected Member Code of Conduct- 3.3 Relationships refers) those councillors who would otherwise challenge the direction of this council.
The Policy 1.47 and its companion in deception, Policy 1.48 Council Member Conduct Complaint Handling Policy, are attempts to circumvent the Act and Regulations and a deliberate attack on the democratic processes of local government. The trickery in the policy is in signing up to a complaints referral process outside of the individuals rights. It attempts to extinguish those rights by silencing a Councillor in a process claiming confidentiality. It sets the scene for a Council to conduct a kangaroo court without redress to individual rights. It is an attempt to silence the dissenting voice of any Councillor.
Maybe that is why the unidentified two Councillors (in the Mayor’s Message), Cr Codrington and Cr Ross would not sign up to the pretence of a code of conduct designed to control and contain Councillors. This message from the Mayor (inappropriately presented as a Mayor’s Message in the West Coast Sentinel) appears to be an attempt to intimidate those councillors who would not sign the Councils code of conduct for elected members.
If this policy is sanctioned by the Local Government Association (LGA) as Mayor Suter’s message suggests then it must be questioned who the LGA is really representing. Does the LGA support this particular version? Councillors need to be extremely cautious of this process. There is a conflicting interest and no independence to this LGA sanctioned process. The LGA represents its member organisations – Councils are members, not Councillors.
For Community information – copy and distribute.
Is it on public record as to what section of the CCC do the councillors disagree with? If so will they reveal what their objections are?
Although I am no longer in office it seems reasonable that I should respond, particularly in light of my involvement in the question at hand.
When I was sworn in as a councillor I, along with the others, pledged to undertake to discharge my duties conscientiously and to the best of my abilities. The role was comprehensively delineated in the Local Government Act.
My primary concern was to faithfully represent ratepayers in monitoring both how their hard earned rates were spent, and regulatory requirements. I was immediately under fire, and it was urged that a more effective code be prepared to deal with me.
Instead of being straightforward, the concocted Code of Conduct was convoluted and nebulous, and incorporated requirements outside of those of the Local Government Act. The normal procedure of providing definitions had not been followed leaving the document open to wide interpretation.
I was particularly concerned that it paid excessive attention to enhancing the “image” of Council, as I had been elected to represent ratepayers not to garnish the corporation. When acting as a council representative on subsidiaries or other organisations, the Code’s requirement that councillors should act in the best interest of those subsidiaries or other organisations seems contrary to the duty to represent the best interest of ratepayers. In dealing with “breaches”, the Code had departed from the Act by imposing “Procedures” of an interrogative and secret inquisitional nature. This is a serious departure from our right to natural justice which of course should be open, independent and unbiased.
Further I had observed that the Mayor and those who had previously signed the code did not themselves keep it. I did not have the option of signing a document that was offensive, or which I had no intention to honour. Crs Liu and Walkom had also raised serious issues which had not been addressed. Thus, I could not in good conscience sign it.
I would encourage Graeme to peruse my reply to KIpolis #559 entitled: “Who failed ? — emails exchanged between Cr Chirgwin and LGA’s Ms Stevens, Nov-Dec. 2011”, posted on 2012/03/28, in which I pointed out that we (Crs Chirgwin, Walkom & myself) did not refuse the signing of the Code, except deferring the endorsement of this policy until all concerns were addressed.
The main issue which concerned us was that this current policy has not been adopted through proper due processes and consideration of Council. This revised policy should be firstly commented on by Council and approved for public consultation; then amended as appropriate for formal adoption.
Other concerns were the absence of procedural fairness relating to natural justice and right of appeal provision in the document. To date our concerns have not been responded to by the Council.
Cr Liu is correct in my opinion: there are a number of minor errors in the current code which unfortunately council adopted without due process.
Secondly it is pointless signing such a ducument as once it is adopted it is an obligation on all councillors anyway – errors included.
A third point is that discussing this with other councillors who did sign it, I am amazed that there is in total a majority who do not agree with such a convoluted, catch all type document. Whilst council does need to have a code of conduct it could be simple and internally administered – there is no need to have the LGA format that promotes their own business arm, the Local Government Governance Panel at this council’s cost.