LOCAL GOVERNMENT REFORM SECTION 62/2

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An attempt has been made to have a submission considered in the current Local Government Review Process. Clearly the government's imperative is to divine what it is that the constituency finds repugnant and then market some placatory band-aids, repairs, modifications, adjustments, whatever to the status quo – job done one assumes. 

Well in a 21st C context the Tasmanian Local Govt Act 1993 past its use-by-date let’s say in 2001 and it was barely relevant in 1993

As a ‘researcher’, a cultural geographer, a cultural producer, and a citizen of Launceston I have been interrogating ‘placedness’, PLACEmaking, PLACEscaping and PLACEmarking and for well over a decade.  Launceston Town Hall – a place where PLACEmaking and CULTURALlandscaping goes on – turns out to be an informative SOCIALlaboratory – a petri dish of a kind if you like. 

Fundamentally, local governance is in the business PLACEmaking and CULTURALlandscaping albeit that it is poorly understood and quite often inexplicably denied. 

In a 21st C context local governance 'reform' aught not be ’the status quo with tweaks’. Importantly such an approach aught not be offered up as solution for a governance model that is so, so, broken and totally inadequate ina 21st C context. 

The biggest challenge in leadership is with ‘the team’, the constituency, to achieve at a higher level. The leadership responsibility is to take the constituency to that next level. Overcoming fear of inadequacy and never doubting what needs to be done, no matter how audacious, is in the end is where it is all at.

Therefore, despite all the messaging, subliminal and overt, perhaps a nano second of the review processors time to look at the audacious possabities the 21st C has to offer – tor the full text for my updated submission click here.

Subsequent to the above a further sumbission has been made to amplify a point and to address an issue, the case for which I needs to be made more strongly. Over many years of research – action research – it has been observed that a provision in the Local Government Act 1993 has arguably been misused … namely SECTION 62 /2 ... see graphic below

In Launceston at least ‘General Managers’ over time, appear to have misused this provision, and increasingly so, to the detriment of ‘good governance’ as it is described and set out in the Government’s Guidelines. 

There is no doubt that within the Act there is a need for a  provision such as SECTION 62 /2 and especially so in the context of an emergency – extreme flood events, fire events, extreme weather events, pandemics, civil disobedience. It is concerning that the Act is silent in regard to the provision’s context. 

Therefore, arguably the Act leaves it wide open to be used to empower a General Manager well beyond the Act’s otherwise apparent intentions. Clearly this was and is an unintended consequence.

In a worst-case scenario,SECTION 62 /2 enables a General Manager to ‘empire build’ not to mention allowing them the opportunity to inappropriately ‘bland down and blend’ the functions of governance and management. Moreover, as a matter of convenience, usurp the governance powers of elected representatives governance function. 

Tasmania's Director of Local Govt is aware of instances where the application of SECTION 62/2 has been used and arguably in ways that run counter to civil law outside the context of ‘public administration’ and local governance,  Broadly speaking the only advice provided relative to the Act is that it is what it is and that aggrieved people can always resolve their issues ‘at law’, through the Ombudsman, via the Integrity Commission or possibly via a Code of Conduct action. 

All that is so, and as the Director is quite aware, in the case of Local Govt the cost of legal redress is carried by ratepayers NOT the perpetrators of whatever it was that initiated any litigation. Thus, there is no disincentive behave as the Act seems to assume that reasonable people will. All this is, I submit, is unrealistic and grossly unfair! Moreover, the insidiousness of this paradigm can infect almost every aspect of Local Govt compounding the negativity – and exponentially. 

 A WAY FORWARD: While there is a good argument to retain such a provision as SECTION 62/2 there is an equally good argument that its excesses in use need to be curtailed. IF it is to be retained the provision needs to be better articulated in the context of: 

• It being there for use in the case of emergencies – extreme flood events, fire events, extreme weather events, pandemics, civil disobedience – with Ministerial endorsement; and/or 

• Enabling a General Manager, with Ministerial endorsement, to meet the administrative needs of an unforeseen situation in a municipality. 

Moreover, SECTION 65 of the Act is arguably tainted by SECTION 62/2 in the Act in so much as it can, and arguably has, provided a General Manager with authority to deem that she/he, or a person appointed by them, has the all ‘professional expertise’ called for in the provisions of SECTION 65. In fact, this might not be the case and has been often enough to be concerning. 

Unless a General Manager’s professional resume is made public knowledge as is mostly the case in ’academe’, there is no expedient way for either elected representatives or constituents to verify, or test, the expertise they are called upon to rely upon and give credence to. Moreover, given all the responsibilities attached to, and the salary levels attached to the position, any inhibition to make public a General Manager's resume would appear to be withoutfoundation.

Therefore, the Act should not be silent in regard to this matter. 

This is so given the consequence that neither the elected representatives, nor their constituency, are in a realistic position to challenge what they believe to be inappropriate advice albeit that they might well do so on their own cognisance. This in the end is time consuming and in many ways counterproductive. 

 Most concerning is that altogether these provisions –SECTIONS 62/2 & 65– of Tasmania’s Local Government Act can be used to functionally blur the distinctions between ‘governance’ – the determination of policy and strategic positioning – and ‘management’ – the implementation of policies and strategies. While all this might be regarded as a given, there is both the room for and the need for the Act to articulate this underlying reality of local governance in its fundamental role as a placemaking, placemarking and cultural landscaping entity in its ‘governance role’. 

In that the circumstances put forward  here is non-trivial albeit that all too often it all goes unacknowledged and very often it is not well understood by elected representatives.

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