Liverpool City Council

Production of Documents: Order

The Hon. CHRIS RATH ( 17:55 :21 ): I move:

That, under standing order 52, there be laid upon the table of the House within 21 days of the date of passing of this resolution the following documents in the possession, custody or control of the Minister for Local Government or the Department of Planning, Housing and Infrastructure (including the Office of Local Government) relating to Liverpool City Council:

(a)all correspondence, sent within the Office of Local Government between 27 March 2023 and 7 May 2024, relating to Liverpool City Council;

(b)all documents relating to the public inquiry into Liverpool City Council;

(c)all documents relating to the section 430 investigation, or the interim report of the section 430 investigation, into Liverpool City Council;

(d)all documents relating to Holding Redlich being appointed as counsel assisting the Commissioner for the Public Inquiry into Liverpool City Council;

(e)all documents relating to Liverpool City Council sent from:

(i)the Minister for Local Government;

(ii)the Office of Local Government; and

(iii)Ross Glover.

(f)any legal or other advice regarding the scope or validity of this order of the House created as a result of this order of the House.

This request for documents is as reasonable as they come. Members of this place seek to understand the decision‑making involved in the exercise of the numerous powers under the Local Government Act 1993. The context also presents a crucial opportunity to scrutinise the integrity of the Office of Local Government. In three questions, the motion seeks to answer the following: First, was due process followed in the later reversed decision of the Minister to suspend Liverpool City Council? Second, is the rightly independent Office of Local Government potentially subject to partisan political influence or pressure from the Labor Government? And third, were there any probity issues in the appointment by the Office of Local Government of the Labor-aligned law firm Holding Redlich to act as solicitors assisting the public inquiry—recalling that it was described by The Australian Financial Review as "the biggest law firm political donor", contributing hundreds of thousands of dollars to the Labor Party?

The motion will allow the Legislative Council to examine the process behind the unprecedented decision to apply both a section 430 investigation and a section 438U public inquiry into Liverpool City Council concurrently. In April 2024 the Minister for Local Government announced a section 430 investigation into Liverpool City Council, and an interim report was published on 18 July 2024. That report was used by the Minister to attempt to suspend Liverpool City Council, including taking away the right of voters in Liverpool to have a say over the future of their local government area. On that basis alone, the motion should be supported. Any instance where democracy and enfranchisement are taken from the people by the Executive should always be subject to a healthy level of scrutiny. However, the matter is much murkier.

In the council's legal case appealing against the Minister's suspension, Judge Robson found that the Office of Local Government's deputy secretary "failed to observe the requirements of procedural fairness". During the proceedings it was discovered that the deputy secretary, Brett Whitworth, apparently changed his mind on his recommendation to suspend Liverpool City Council. I understand that between 11.27 a.m. and 5.17 p.m. on 10 July, Mr Whitworth had an apparent change of heart from recommending that the council is not suspended to recommending that it is suspended. Was the Minister involved in that change of heart? Perhaps the deputy secretary received advice from another public servant. Rather than speculating, the approach of this House is to let the truth set the Government free. Sunlight is the best disinfectant, after all.

The Office of Local Government also seemingly expunged the published interim report from its website. That report contained damaging allegations against staff and elected officials at Liverpool City Council. Members should know that, critically, those allegations were published before the accused were made aware that the claims even existed and before they had a chance to respond. To back up the interim report bungle, the Minister announced a public inquiry into Liverpool City Council under section 438U. However, the section 430 investigation had not yet been completed. That is an atypical process. To my knowledge, there is not another example where this kind of concurrent investigation-inquiry has occurred. Is the Minister perhaps worried about the credibility of the original investigation? My concern is that the public inquiry might be being used to retrospectively justify the investigation in the first instance and cover over its numerous flaws. If true, which this Standing Order 52 motion hopes to get to the bottom of, such an approach would be a terrible distortion of due process and an extreme overreach of Executive power.

This is not a motion interested in the political colour or loyalties of any of the councillors or staff involved. It is simply a request for transparency and an opportunity for reasonable scrutiny of this Government making a controversial decision through several atypical processes. I quote the then Leader of the Opposition, Chris Minns, in 2022:

From hard experience, Labor has learned that the pursuit of integrity is not a burden we absolve ourselves of, but an unwavering commitment to always be probing ourselves, and others, to ensure there is integrity in public life in NSW.

Members ought to take it from Chris Minns. I urge members to support the probing of these Government decisions in order to maintain the pursuit of integrity in public life in New South Wales. I commend the motion to the House.

The Hon. TARA MORIARTY (Minister for Agriculture, Minister for Regional New South Wales, and Minister for Western New South Wales) ( 18:00 :29 ): In the Government's view, this call for papers should not be supported, particularly in its current form, as it has the serious possibility of compromising a lawfully constituted inquiry that is being conducted at arm's length from the Government. Releasing documents at this time will unduly expose the public interest disclosures of people with legitimate questions about their employer, and we cannot exclude the possibility that the individuals who made the complaints will have their identities revealed. I move:

That the question be amended by:

(1)Omitting "21 days of the date of passing of this resolution" and inserting instead "56 days of the date of the final report into the Liverpool City Council Public Inquiry".

(2)In paragraph (a) omitting all words after "all correspondence, sent" and inserting instead "by the Office of Local Government between 1 November 2022 and 7 May 2024 to Liverpool City Council in relation to requests for information under section 430 or 734A of the Local Government Act".

(3)In paragraph (b) omitting all words after "all documents" and inserting instead "relating to the establishment of the Public Inquiry into Liverpool City Council, including the appointment of the Commissioner".

(4)In paragraph (c) inserting "provided by the Office of Local Government to the Public Inquiry" after "all documents".

(5)In paragraph (d) omitting "Holding Redlich being appointed as counsel" and inserting instead "the appointment of the external instructing solicitors and counsel".

(6)Omitting paragraph (e).

(7)Inserting at the end:

(2)That:

(a)this order of the House does not require the production of documents relating to witness testimony, including supporting documents, public interest disclosures, interview transcripts or investigation notes; and

(b)documents returned to this order of the House be redacted of names and other identifying information of whistleblowers, including job titles.

While the Government does not support this call for papers for the reasons I have outlined, I move this amendment to propose a bare minimum of protection of the independent process of the inquiry and witnesses who have come forward.

The Hon. MARK LATHAM ( 18:03 :00 ): I urge the Chamber to support the Standing Order 52 call for papers moved by the Hon. Chris Rath because it is consistent with the will of the people. It was a major local government controversy involving one of our former Presidents in this place, appointed as the general manager, up against the mayor. Allegations were made, yet when the people voted last year the result that Mayor Ned Mannoun achieved was phenomenal. It was from outer space! He won every single booth in Green Valley. I am showing my age, but I remember standing on the Ashcroft public booth when Labor would get an 80 per cent primary vote.

The Ferguson machine, very effective at getting the numbers inside the Labor Party but hopeless campaigning among the people, has got it down to 30 per cent. It has dropped one in two voters in the space of a generation and a half. Mannoun is doing something out there. From time to time you see Teflon-coated politicians. I suppose Neville Wran, once in this place, is an example, while Bob Carr to some extent was another. But this Mannoun character out there is doing something that the people support down the line. It is phenomenal.

The allegation made in this Chamber by the Hon. Chris Rath is that between the times of 11.27 a.m. and 5.17 p.m. on 10 July—the times are so precise it is like a crime thriller—Mr Whitworth, the head of the Office of Local Government, had an apparent change of heart from recommending that the council not be suspended to recommending that it be suspended. What happened there? I do not think it matters too much. There is an inquiry underway.

The Legislative Council, with the ability to call for papers under its transparency and accountability powers, should be able to scrutinise those things. Documents can be privileged, as is often the case, to protect the integrity of the inquiry. But given the will of the people of Liverpool to support Mayor Mannoun in the face of the allegations made against him by the union and the former general manager, as well as the media and the controversy, something has gone on out there that requires this House to inspect the papers and make its own judgement consistent with the greatest power of all in a democracy: the will of the people.

Dr AMANDA COHN ( 18:05 :24 ): I indicate that The Greens will be supporting the motion and also supporting several paragraphs of the amendment moved by the Government. The allegations made by the Opposition in terms of Executive overreach into local government are very serious. The Greens take them seriously, particularly given the important role of this House in terms of transparency, accountability and oversight, which we all agree on. We have a responsibility to take those concerns seriously and look into them.

It is also my view that some of the concerns the Government has raised in terms of potentially compromising the integrity of the public inquiry yet to take place are valid and serious, as are the concerns around the protection of whistleblowers, particularly people who have made public interest disclosures. To that end, a number of paragraphs of the Government amendment are commendable and worth supporting. While I generally do not love to get involved in what seems like quite a partisan dispute about a local government area, obviously, in the context of a call for papers, we need to be engaged in that process.

The Hon. BOB NANVA ( 18:06 :54 ): I oppose the call for papers moved by the Hon. Chris Rath and support the Government amendment to redefine its scope. The proposed order is inappropriate, as it seeks to compel the production of documents that are being prepared to support a public inquiry under the Local Government Act 1993. The public inquiry into Liverpool City Council follows investigations and legal action around well-founded concerns about the staffing, governance and functioning of the council. Seeking those documents may prejudice the functioning of that inquiry.

A more pessimistic view would be that the Opposition is seeking to stymie the effective functioning of the inquiry, because the order also seeks documents that relate to open investigations and inquiries being undertaken by the Office of Local Government. The tabling of documents, even if captured by privilege, has the potential to prejudice actions underway or actions that are being contemplated. There are good public policy reasons why investigation documents should not be produced. Those documents overlap with the documents that the Office of Local Government has already provided to the public inquiry and may prejudice the work of the inquiry by revealing information outside of the formal inquiry process.

Finally, the resources that are required to respond to this order are significant, particularly given the sensitive nature of the documents and the volume of documents, even if the scope of subparagraphs (a) and (e) is limited. The advice of the Office of Local Government is that its investigations team and legal team alone would be taken offline completely for at least one month to review those documents, which also slows down the Liverpool public inquiry. It would also prejudice other investigations and interventions that have been called for by the Opposition in this House—for example, the consideration of the behaviour of councillors in Snowy Monaro. I do not support the order for papers, and I am disappointed that there are some who are wilfully looking to prejudice an ongoing inquiry. I am concerned that the Opposition is looking to protect a mayor who has, potentially, fought against accountability from the start. I urge this House to consider the implications of such an order.

The Hon. PETER PRIMROSE ( 18:09 :23 ): In my contribution to debate on the motion, I refer to the history associated with this matter. Quite clearly, anyone who has followed the matter would be aware of the cloud that hung over Liverpool City Council well before the previous State election when Labor came to government. The first complaint about Liverpool was received by the former Minister for Local Government and the Office of Local Government [OLG] in December 2022. The Office of Local Government took action to ask for more information through preliminary inquiries to council in March 2023, while the former Government was still in office. While the initial concerns were around the non-merit-based appointment of staff on a political basis, OLG investigations uncovered far deeper concerns.

Amongst the documents provided by OLG to the public inquiry are complaints, public interest disclosures, interview transcripts and investigation notes. These relate to many differing types of allegations, including bullying and sexual harassment; interference by elected officials in development assessment processes; breaches of the Work Health and Safety Act 2011; wasting of public money; destruction of records; sexual discrimination; bypassing of procurement processes; and pressure to determine development applications, resulting in refusal of developmental applications that may otherwise have been approved. I think members would agree that those are serious allegations that deserve proper scrutiny through an arms-length investigation.

Despite the mayor welcoming the public inquiry, Liverpool council initiated legal proceedings in the Land and Environment Court against the Minister and the department, which were unsuccessful. The ability and reasoning for the Minister to initiate the public inquiry was upheld by Robson. The public inquiry has been initiated. Commissioner Ross Glover was appointed at the recommendation of the Office of Local Government, having been appointed to conduct a previous inquiry under the former Government into Wingecarribee. Independent instructing solicitors and counsels assisting have all been appointed by either the department or the commissioner, independent of Executive government.

This call for papers risks making accusations, provided under conditions of secrecy, available to political allies of the person accused of wrongdoing. The Government is firmly against allowing that possibility. One would have to question the motives of the Opposition for bringing this motion forward when a statutory process is underway. The Government's amendment, as moved by the Minister, goes some way to protecting the process and those who have bravely come forward. Should the House determine that the motion proceed, I strongly commend the amendment to the House.

The Hon. CHRIS RATH ( 18:12 :34 ): By leave: I move:

That paragraph (1) of the amendment of the Hon. Tara Moriarty be amended by omitting "56 days" and inserting instead "1 day".

The amendment seeks to change "56 days" to "1 day". It is absurd to suggest that, after the investigation has been completed and the final report handed down, the people of Liverpool would then need to wait a further 56 days for the documents.

Dr AMANDA COHN ( 18:13 :53 ): I indicate that The Greens will support the amendment of the Hon. Chris Rath to the Government amendment for the reasons outlined by the member. Given the argument is to defer the provision of these documents in order to not prejudice the inquiry, once the inquiry is completed, it is reasonable that those documents be available immediately, and the department has a significant amount of time, starting now, to prepare them.

The Hon. TARA MORIARTY (Minister for Agriculture, Minister for Regional New South Wales, and Minister for Western New South Wales) ( 18:14 :15 ): The Government does not oppose the amendment of the Hon. Chris Rath to the Government amendment.

The Hon. CHRIS RATH ( 18:14 :24 ): In reply: With a bit of a kumbaya, if we come to an agreement, we may not even need to go to a division on this particular motion. This is how the sausage is made, for those thousands of people tuning in and watching the upper House just before a dinner break on a Wednesday. I thank members who contributed to debate. If the Government is worried about personal or sensitive information contained in the documents, by all means, redact that information and place the documents in the privileged box for only members of this House to view. It can always be up to the arbiter as a matter for dispute of privilege. It is not a fair and reasonable excuse to say, "Because the documents include sensitive information, we will therefore oppose or water down the Standing Order 52." That is why the privileged position exists and why the documents can be made confidential for members of this House only. Apart from that, I think we have reached a middle ground or a compromise. I commend the motion to the House.