June 30 is the deadline for NSW councils’ Fit for the Future applications and there are further signs that a Game of Thrones-type bloodbath is on the cards as councils jockey over boundaries and accuse one other of land grabs.
Parramatta City Council wants to absorb Holroyd, half of Ryde, large chunks of Auburn and parts of the Hills and Hornsby Councils to double its size and create an empire to rival that of the City of Sydney. Randwick and Waverley councillors are engaged in an internecine war over amalgamation and Hills Shire Mayor Andrew Jeffries is on a mission to annex parts of Hornsby, Hawkesbury and Parramatta.
Meanwhile, most other councils appear to be resisting mergers, instead opting to stand alone, and the Save Our Councils Coalition and Facebook pages dedicated to fighting the mergers continue apace.
In the confusion, Government News asks: what would NSW Premier Mike Baird actually need to do – both legally and practically – to push unwilling councils and residents together, should it come to that?
Government News understands that Mr Baird would not necessarily need to change legislation to push ahead with any mergers; but it would still be a lengthy process and involve a full public inquiry.
We asked Professor Graham Sansom*, who chaired the Independent Local Government Review Panel’s initial October 2013 report on council reorganisation, whether forced mergers could be blocked by the Upper House, which is what some NSW councillors and residents believe would occur.
“No, under the current Act the Minister can ultimately do what he likes, although he has to go through a fairly complex process to get there.”
A spokesperson for the Local Government Association of NSW (LGNSW) echoed this view: “Our reading of the Local Government Act is that no legislation is required to force a council merger and therefore they cannot be blocked by the Upper House”.
Government News understands that the process would go something like this (using the Local Government Act 1993):
• The Independent Pricing and Regulatory Tribunal (IPART) reveals its recommendations in mid-October and submits its report to NSW Local Government Minister Paul Toole.
• Mr Toole examines IPART’s recommendations and decides whether to forge ahead with any recommended mergers – either voluntary or forced – by designing each merger proposal, including redefining council boundaries and providing justifications for the move.
Proposals can also be made by affected councils or by a minimum number of enrolled electors for each area involved: 250 enrolled electors or 10 per cent of them, whichever is greater.
Either way, the minister would need to reconvene the four-member Boundaries Commission, which is currently in abeyance. Then he would have two options:
1. Refer all merger proposals to the Boundaries Commission. The Commission must then hold a public inquiry considering factors including: the financial advantages of merging, community views, the impact of change, local representation, service provision and the impact on council staff and employment.
The Commission reports to Mr Toole and the minister decides whether to accept or reject this advice. The next step is that the Governor of NSW, David Hurley, acting on the advice of the minister, proclaims any amalgamations that will occur.
2. On making or receiving a proposal, Mr Toole must refer it for examination to the Chief Executive of the Office of Local Government, Marcia Doheny, or possibly to the Secretary of the NSW Department of Planning Carolyn McNally – (the Local Government Act refers to the ‘Director-General’ so this is unclear).
The ‘Director-General’ must then seek electors’ views through public meetings, public submissions, postal surveys, opinion polls or formal polls over a period of least 40 days before preparing a report and submitting this to the Boundaries Commission for review and comment.
The Commission reviews the report and provides comment to Mr Toole, who can accept or reject the recommendations. The Governor, acting on the Minister’s advice, proclaims amalgamations.
Local Government NSW President Keith Rhoades said he would prefer the minister take the first option.
“If we had to preference those two options here, we would go for option one to have full public consultation through the Boundaries Commission, for an open public inquiry. Communities must be involved,” said Mr Rhoades.
“They [communities] have been engaged by local councils but not by the government.” He said the process could take “up to 18 months”.
Mr Rhoades feared that the government could argue public consultation had already been done through IPART and the Independent Local Government Report (ILGRP).
However, Professor Sansom said the Director-General would still have to do all the things the Boundaries Commission would, i.e. hold a full public inquiry.
“I can’t see how either the ILGRP review or the current IPART investigations would meet the legal requirements for consideration of amalgamation proposals. Neither amounts to a formal inquiry and neither covers all the issues listed in the Act,” he said.
“So unless the government can get the Act changed (i.e. get amendments through the Legislative Council), then there’s still a complex process to complete before any amalgamations could take place – voluntary or ‘forced’.
“That’s why the ILGRP recommended getting the policy framework right first, reforming the Boundaries Commission and amending the Act, and then ‘hastening slowly’ by looking at merger options in groups over a few years. Recent experience in Perth showed that once you embark on the formal legal processes things can easily go off the rails.”
In February, WA Premier Colin Barnett had to put Perth council mergers on hold indefinitely after ratepayers and the WA Local Government Association comprehensively rejected his plans to reduce the number of metropolitan councils from 30 to 16. Meanwhile, some councils said they would seek compensation for the failed process, which they claimed cost them millions.
Mr Baird must be wondering if NSW is going to go the same way.
(Professor Sansom is no relation to the author.)
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