Enquiries
The Inspectorate regularly receives enquiries from community members, councils and councillors seeking advice, information or raising issues that fall outside our jurisdiction. We endeavour to help with enquiries where possible. Enquiries that do not fall within our remit are referred to other Victorian Government agencies or bodies representing the local government sector.
In addition to the 203 Investigations completed in 2021–22, we resolved 158 enquiries. A large number of enquiries are complaints about councillor code of conduct matters, which are to be dealt with by individual councils. Other enquiries include planning matters and complaints about council services.
Historical data
In previous annual reports, we have published the number of complaints and investigations we had handled in the financial year. However, historically, we have not had clear or consistent criteria for the way we categorise enquiries, complaints and investigations. Our case management system is outdated and the data it produces is limited. This meant we had to manually calculate the enquiries, complaints and investigations and the criteria we used to calculate them changed over time - making benchmarking them difficult.
As the volume of our work has increased, it has been harder to compile this data manually. We are currently in the process of developing a new system to help us more accurately track our statistical information. Once this new case management system is operational, we will have consistent criteria and more accurate statistics.
Because of these issues, we have not included our historical data in this annual report. Our historic data does not accurately reflect the long-term trend of increasing volumes of complaints, enquiries and investigations.
We also have also decided to no longer report the number of complaints we receive as this is not an accurate reflection of the work we do. Once we receive a complaint, we assess it to see if it warrants further investigation.
Sometimes completing an investigation is straightforward to assess and determine an outcome and may take a short time. On other occasions an investigation can be very complex involving interviewing large numbers of people and reviewing a voluminous amount of evidence and can take many months to complete. The length and complexity of an investigation can impact the number of other investigations and enquiries that can be allocated to an investigator and completed during a twelve-month period.
Investigations
The Inspectorate investigates complaints regarding allegations of breaches of and offences against the Act. Some complaints consist of multiple allegations, for example,
that a councillor has breached the conflict of interest and misuse of position provisions.
Investigations involve our inspectors gathering evidence to determine whether the allegations can be substantiated. This process determines whether the allegations:
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constitute a breach or offence under the Act
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should be referred to another responsible authority; or
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do not breach or amount to an offence under the Act.
Allegations made
* When we start an investigation we may find that the complaint involves multiple allegations which are all part of the single investigation.
There were 203 investigations, consisting of 330 allegations, conducted by the Inspectorate in the 2021–22 financial year. The Inspectorate may launch an own motion investigation into any matter that potentially breaches the Act. This usually happens when we hear about information from interviews, media reports or other intelligence we have gathered. Ten own motion investigations were completed in the 2021–22 financial year.
Of the investigations conducted, 34 per cent raised allegations of conflict of interest, 17 per cent raised allegations of misuse of position, 6 per cent included allegations of disclosure of confidential information, and 2 per cent raised allegations of directing council staff. Forty one percent raised allegations of other matters such as electoral offences, eligibility to be a councillor, and serious misconduct. As mentioned above, we are working on developing a new case management system which will give us more accurate data about our enquiries and investigations.
How investigations were received
Subject matter of investigations
| Invesigation category | Number of allegations* | Percentage |
|---|---|---|
| Misuse of position** | 57 | 17 |
| Directing council staff^ | 6 | 2 |
| Disclosure of confidential information^^ | 20 | 6 |
| Conflict of interest# | 113 | 34 |
| Other | 134 | 41 |
Note:
* This table shows the number of allegations investigated. A single investigation may involve multiple allegations. The 203 investigations conducted during 2021–22 consisted of
330 allegations.
** Section 76D of the Local Government Act 1989 and section 123 of the Local Government Act 2020.
^ Section 76E of the Local Government Act 1989 and section 124 of the Local Government Act 2020.
^^ Section 77 of the Local Government Act 1989 and section 125 of the Local Government Act 2020.
# Sections 77A-80C of the Local Government Act 1989 and sections 126-131 of the Local Government Act 2020.
Own motion investigation after newspaper article
The Inspectorate can start an own motion investigation if we receive information about a possible breach of the Act. We became aware of a possible conflict of interest after reading
n article from a local newspaper and started an own motion investigation into the matter.
The article said that a regional councillor had failed to declare a conflict of interest in a sporting club before moving that the council should apply for funding to upgrade the club. The councillor is a member of the sporting club but did not declare the interest at the council meeting.
The councillor was not a committee member of the club and did not have any voting rights. The councillor claimed an exemption to the conflict of interest provisions.
In June 2022, the investigation found that the councillor had an interest in common with many other town residents and would receive no further benefit than that of the community.
We informed the councillor that while there had been a breach of the Act, there was an exemption and as a result there was no identifiable offence. The councillor was reminded of their obligations under the Act.
Reasonable Assistance Provisions
Under the Act, the Chief Municipal Inspector has powers to require the provision of reasonable assistance (also known as coercive powers). This may require a person to produce documents and evidence or appear for an interview under oath. In 2021–22, the use of the powers were approved on 5 occasions to obtain documents or information from people.
We interviewed 24 individuals in 2021–22 and all the interviews were conducted on a voluntary basis.
Official warnings
Warnings are issued for matters where a breach of the Act is substantiated but an alternative to a prosecution is considered to better serve the public interest.
Warnings are used as an educational tool in making recipients aware of their obligations under the Act and of the consequences for further transgressions.
During 2021–22, we issued 132 official warnings. A total of 108 warnings were for failures to submit an election campaign donation return, 20 were issued to real estate agents who inappropriately voted on behalf of persons for whom they manage properties, two were in relation to failures to declare a conflict of interest, and two were for personal interests returns failings.
Campaign donation return warnings
In March 2022, the Inspectorate officially warned 108 candidates after they failed to submit a campaign donation return after contesting the 2020 council elections.
A campaign donation return is a record of any gifts, donations or in-kind support worth $500 or more received by election candidates for use in their campaigns. Candidates must submit a return to the chief executive officer of the council where they are standing for election within 40 days after election day.
Candidates must also submit a return even if they do not receive any donations or support. A summary of these declarations must then be published on the council’s website.
The Inspectorate investigation found that, of a total of 2,192 candidates running during the council elections, 144 failed to submit a campaign donation return within the required 40 days. However, 34 candidates subsequently submitted a late return.
The remaining 108 candidates who failed to comply were issued with an official warning.
Real estate agents’ post-election warning
The Inspectorate issued 20 real estate agents with an official warning in February 2022 after the alleged improper submission of ballot papers during the 2020 Melbourne City Council election.
It followed our investigation which looked at 216 ballot papers completed by representatives from 21 real estate agencies. Real estate agencies are authorised to manage properties for their owners; however, property owners cannot authorise agents to vote for them under Victorian electoral laws.
A total of 20 agents from 18 agencies admitted completing ballot papers on behalf of landlords whose properties they manage.
The agencies reported that the property owners generally lived overseas, usually permanently and had limited English. Some owners had authorised their agent verbally or in writing to vote on their behalf.
We could not determine who completed the ballot papers sent to two agencies and a further real estate agent could not be located.
While a prima facie breach of the electoral provisions of the Act was substantiated for 20 individuals, we opted not to pursue prosecution but issued formal warnings.
The ballot papers were detected by the Victorian Electoral Commission (VEC) and excluded from the ballot count, meaning they did not affect the outcome of the election in which more than 91,000 votes were cast.
Recommendations
We provide recommendations following our investigations and governance reviews. The recommendations aim to improve compliance with the local government act and improve governance and transparency. Sometimes our recommendations are for the peak bodies for councils (the Municipal Association of Victoria, Local Governance Association of Victoria and Local Government Professionals) or Local Government Victoria, the team within the Department of Jobs, Precincts and Regions which supports Victorian councils.
The majority of our recommendations are for councils. During 2021–22, we issued 34 recommendations to councils. Of these, 20 were accepted and implemented, a further six were implemented after the end of the financial year and a further eight remain under consideration. Our recommendations may involve a decision of council or actions like additional training or policy development, which take time for a council to implement.
Governance examinations
We conduct governance examinations of Victorian local councils to measure compliance with the Act, identify process deficiencies and to make recommendations for future improvements.
Our governance program aims to give councils tools to improve compliance, transparency and develop better practice processes.
We typically conduct two types of governance examinations:
- we examine an individual council across a range of council practices
- we examine a particular topic or theme across all councils or a selected group of councils.
We will identify a council to visit or a topic or theme during investigations, feedback from the sector or information form the community.
Movement restrictions limited our ability to visit individual councils and so we focused on theme-based projects during 2021–22. We concluded a major investigation into personal interest declarations during 2021–22 and started another project to examine documents needed under the new Act.
Report on councillors’ personal interests declarations
In October 2021, we published a report into a major review of the declaration of personal interests of 650 councillors from 78 councils.
In the report, Personal interests returns: Encouraging disclosure and increasing transparency, we detailed how 332 councillors (51 per cent) did not complete their returns strictly in compliance with the Local Government Act 1989.
During our review of 4,600 returns, we found five per cent of councillors failed to disclose a land interest in all their returns and 13 per cent failed to disclose a land interest in one or more returns. We also conducted a more in-depth review of the returns from 147 councillors and found even higher levels of non-compliance.
We also tested compliance with the requirement under the Local Government Act 2020 for councils to publish a summary of interests returns. This revealed vastly different approaches on how the information was gathered and presented on websites.
We made 10 recommendations to improve compliance. Some of our recommendations were to improve guidance and education in relation to personal interests returns. We also recommended changes to oversight and legislative change to allow us to replace some prosecutions with infringements.
The review resulted in one prosecution, which was completed in the 2022-23 financial year.
Major review of council policies
In February 2022, we started a wide-ranging governance review of selected council policies which were required under the Local Government Act 2020.
It was the first time we reviewed policy documents which the new Act required councils to create or amend.
We requested a range of policies and governance documents from all 79 councils.
The main aim of the review is to test the level of strict compliance to the timely adoption of required policies by councils.
The review, which saw our governance team checking hundreds of policies, is expected to conclude in late 2022 when we will provide feedback to the local government sector.
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