‘The role of local government is absolutely fundamental. Federal and state governments are obviously important, but most of the decisions that affect the day to day lives of Australians are made at the local level.’ Professor Brian Burdekin AO.

One never knows who is living around the corner in our electorate. 

 So it was a pleasure to spend time with Professor Brian Burdekin AO, Australia’s first Federal Human Rights Commissioner and author of the 1989 report on youth homelessness that so shocked the nation, and an enduring champion for the vulnerable worldwide.

As a lawyer he also knows a thing or two about how local government should operate. 

So he was pretty shocked when it came to dealings with MidCoast Council. 

Letter Unanswered

However, in recently objecting to a DA in Tuncurry which was clearly in breach of relevant standards, Professor Burdekin has learned what most of us in the electorate have known, experienced or suspected for a long time. MidCoast Council could do much, much better, folks.

Professor Burdekin wrote to Mayor West in September last year pointing out the community’s lack of confidence and the necessity for council to make sure it protects the public interest. 

‘I’ve worked at the Federal level, I’ve advised a former PM, a Deputy PM and the Attorney General. I’ve been a Federal Commissioner, and what I told the Mayor is that integrity and accountability are important – and that starts at the local level. If we don’t get this at the local level then we’re not going to get it anywhere! I received absolutely no reply from the Mayor. I’ve worked for 50 years in various areas related to local government. I know the council has nearly 900 staff and replies from the mayor aren’t usually written by himself; but if the mayor doesn’t consider that letter important enough to at least  have someone prepare a reply to me that he can sign, then I’m afraid I am extremely concerned. 

Not only do I see this as critical, more importantly, the then Attorney General of Australia thought it was so important, that in 1988 he proposed a national referendum to provide more recognition and power for local government to tackle issues – including those related to transparency and integrity. I agreed completely with the Federal Attorney General; I was his chief of staff.  The role of local government is critical in protecting  the wider public interest – so local government has to be transparent and must be held accountable.’ 

Importance of the Media

Professor Burdekin points out that Freedom of Information and freedom of the press are essential at every level. The most important recent corruption investigations in Australia have resulted from media investigations.  The Banking Royal Commission came out of media reports; as did the Royal Commission on sexual abuse of children in institutions; as did the current investigation into abuse and neglect of older Australians in Aged Care. These only came about after the media had repeatedly exposed what was going on. There are many other examples – including powerful councils that have been sacked in this state after investigative journalists exposed corruption and maladministration. 

He explained, ‘In democracies, the Executive Government – that is the Prime Minister and Ministers – are supposed to be accountable to the Parliament and ultimately to the courts. But what we have repeatedly  found is that those ‘checks and balances’ (i.e. the legislature and the judiciary) are not enough to guarantee honesty and integrity. …why? Because in our democracy the government, by definition, controls the majority of votes in the parliament. I sat behind our political leaders in parliament for 8 years in Canberra, and I can tell you that if the government wants to shut down a debate because it’s embarrassing,  or because of corruption or maladministration, they can always do that because it is the government and they have the majority in the parliament.  So the fourth estate (the media) is an absolutely essential part of the democratic system – because while the judiciary is there – and our courts are extremely important –  judges can ultimately only deal with cases that are brought to them. Courts are entirely reactive. They cannot launch investigations, which is why all the most important exposures of maladministration and corruption in this country recently have been based initially on reports by the media.  

We must understand that without the media you can’t assume that a democracy will work effectively. It won’t. You can’t completely trust any Federal or State government or council. And one of the critical ‘checks and balances’ is the print and electronic media.’ In that context, I understand certain people associated with our council have moved to inhibit the free distribution of this paper. In my considered view such actions are not only grossly improper, they are an outrageous breach of one of our most important human rights’. 

Investigating Corruption

In reference to our Council, and concerns that overtures to ICAC have gone nowhere, Professor Burdekin responded, 

‘I wouldn’t agree that ICAC is impotent, but it needs more resources. Some think ICAC has too much power, some think not enough. Ultimately the most important thing must be protecting the public interest. Therefore, people who hold positions of power whether at the federal, state or local government level, must be prepared to have their actions scrutinised. That is why in every State, we now have Anti-Corruption commissions or similar mechanisms. They are sometimes overwhelmed but  I would encourage all your readers to become more active if they believe council’s decisions are being made unfairly or not  in the public interest. They can speak to their Federal or State MP – don’t email – go and speak to them in their office. I’m always surprised how many people have never done this.  Or they can call 4428 4100. This is a service where any member of the public can ask a question relating to Council’s Code of Conduct. Every council has to have adopted a Code of Conduct and Procedures and if any of your readers think council has breached that code, they should call that number as there is an office specifically set up to answer questions from the public.’ (Our Council’s Code of Conduct and Procedures were adopted on 22 May this year.)

“Key to Good Governance”

These days we have fewer and fewer broadsheet, traditional newspapers with investigative reporters on staff. It has therefore become more and more important that we have a vigorous, active, inquisitive civil society. 

Professor Burdekin continued, ‘We need people to get off their backsides and get involved. Incidentally, I note that our Prime Minister refers disparagingly to groups in our society like Get Up. Well I’m a member of Get Up because some of the things that really trouble me in our society, including maladministration and corruption in some of our most powerful institutions, are being investigated by Get Up. Why is it that neither one of our major national political parties will agree to the establishment of a powerful, adequately resourced National Anti Corruption Commission? That question needs to be asked by every citizen to every member of Federal parliament – and it needs to be asked again, and again and again,’ he insists.

Threat to our Democracy

As the former Federal Commissioner responsible for protecting human rights, Professor Burdekin adds that privacy is important to individuals – but it is also critical to respect the legitimate rights of media organisations and journalists if they are to operate effectively and protect the public interest.

‘The media must not be harassed or intimidated by government or law enforcement. If the Federal or State police step out of line and pursue journalists who are responsibly and professionally investigating allegations of corruption or serious maladministration, then that is a fundamental threat to our democracy. 

‘Every Australian has to understand that freedom of the media is not something we can take for granted. Most Australians might not know that our right to freedom of expression is not specifically protected in our Constitution – which unfortunately says very little about human rights. That freedom is something we must vigorously assert – and reassert – as recent events graphically illustrate’. 

Bill of Rights

Professor Burdekin has argued for many years, as have many eminent lawyers, that we need a Bill of Rights.

‘We need something incorporated in our Constitution – or at the very least in Federal legislation – that clearly  sets out that we have certain rights. In many countries these internationally recognised human rights are incorporated in the Constitution – but in Australia we are the only country out of 53 countries in the English-speaking common law world that does not have a Bill of Rights either enshrined in our Constitution or at least embodied in Federal legislation’, he explained. ‘Three times the House of Representatives has adopted legislation incorporating a Bill of Rights in Federal law – but  three times that legislation has been knocked back by the Senate. So we cannot assume that governments will always respect our rights to freedom of expression and freedom of the media – even though these rights are fundamental to good governance, transparency – and our right to have information from pubic servants and those we elect.’

While being across international and Federal matters, Professor Burdekin, keeps tabs on local government issues.

‘In different states of Australia we have different criteria stipulating the relationship between the General Manager (GM) and the Mayor. Who is, in fact, the CEO. We elect the councillors, so they are accountable to us. Ultimately the GM must be accountable to the Council otherwise the whole notion of accountability falls down. In some cases the issue of who investigates whom is not clear if there is maladministration or corruption in council. Every council GM and all council employees are, after all, public servants. Being a public servant is a privileged position in the community which brings with it a commensurate obligation of acting responsibly and honestly. One of our biggest problems in local government is a lack of clear accountability. If public servants in privileged positions can simply resign, or be given a package on condition of signing a ‘Non Disclosure’ contract, before going to work for wealthy developers, that can obviously operate against the wider public interest – including the increasingly important imperative to protect our fragile environment. 

Transparency

‘The most important thing in local government is transparency. When I was involved at the highest levels of our national government there was a tendency for public servants to slap labels of “commercial-in-confidence” on material that was not necessarily “commercial-in-confidence” at all but might embarrass the government or government departments if that information became public knowledge. We will always have corruption and maladministration if we don’t have transparency and accountability and we unnecessarily restrict the public’s right to know. 

‘For some time there has been a great deal of disquiet in this community about what is happening in MidCoast Council. I am acutely aware of the challenges confronting Council following the recent amalgamation – which in my view was a very serious mistake. That was why I wrote to the Mayor a year ago. But those of us in the community who wish to work with Council can only do so effectively if we have confidence in the integrity of Council’s operations; their respect for due process; their determination to spend OUR money wisely; and their willingness to act transparently in the wider public interest – including the interests of the most vulnerable members of this very beautiful region who are very often voiceless and powerless in the face of powerful commercial interests’.

From where I am sitting we have a long way to go.

DM

Wouldn’t YOU answer this letter?

Wednesday September 12, 2018. 9.25AM

To: Mayor David West.
MidCoast Council

Dear Councillor West,

First, congratulations on your recent election and my very best wishes in addressing the substantial challenges confronting you and your colleagues.

Second, I share your bitter disappointment at the extraordinary behaviour of Council’s former general manager.  (“North coast Administrator swaps council for job with Chinese property developer”: Lucy Macken, 26/8/18 ;  Sydney morning Herald )

Third, I would like to help you and your Council do something about it. Avoidable conflicts of interest by those privileged to hold “ public service “ positions of trust is an urgent problem—not only at the level of Local Government, but also at State and Federal levels. It has not yet been adequately addressed, at any level, and not only is it costing Australia millions of dollars it has implications for effective exercise of control over our own country, including the protection of our increasingly fragile environment.

I have had the privilege of public service in several capacities (as a lawyer, as a diplomat, and as a Federal Commissioner).

But I learned my most valuable lessons as chief of staff to our former Deputy Prime Minister and Federal Attorney-General, the Hon. Lionel Bowen AC, who started his career in public service as Mayor of Randwick in Sydney, then served in the State Parliament before entering national politics. He invariably emphasised the critical role played by local government in achieving the quality of life that Australians deserve.  Integrity starts locally !

I have also worked in China, in several capacities, over four decades. China is an emerging superpower with many legitimate needs and interests.

But Australians who don’t understand or accept the necessity for drawing a very clear line between their entrusted responsibility as senior “public servants“ and then immediately working for Chinese billionaires buying large tracts of Australian land must not enjoy immunity for any actions that subsequently compromise our resources.

What is obviously needed, at every level of government, are appropriate laws, rules or regulations —as the case may be. And there must be substantial sanctions for breaching those standards.  Public service “codes of conduct“ have, unfortunately, proved inadequate. (At the very least, in accordance with the general principles which should apply to all public servants, your most senior staff member should have informed you about his intended private sector employment before he left. Your reported comments in a respected newspaper indicate that he did not do so – effectively blindsiding you and your colleagues and avoiding any actions you may have been able to take to protect the public interest (—given that his current employer has repeatedly breached laws protecting our land and has also previously recruited several other Council employees responsible for protecting this beautiful coastal region ).

Whatever his previous record of public service may be, these actions, widely reported, have affected public confidence in the Council. I started school in Taree; I later worked closely with one of your predecessors in caring for underprivileged young people in this region ; my family has lived and invested in this area for 6 decades*.You and your councillors will get our full support for whatever measures are necessary to fix this;  and some of us will endeavour to use our contacts with State and Federal authorities to ensure they also take effective action.

With best wishes,

Yours sincerely,

Brian Burdekin

(Prof. Brian Burdekin AO)

Professorial Visiting Fellow, Law School, University of New South Wales.

* My wife and I are currently ratepayers in Tuncurry, Black Head and Red Head

(The Mayor never replied.)