The framework provides transparency and gives the local government
sector and the public certainty about department's approach to managing
complaints made against the sector (or individuals within it). The department's
aim is to build good governance by promoting and enforcing compliance
and encouraging all local governments to move beyond minimum compliance
through continuous improvement. The department also aims to ensure that there is
proper accountability of local governments to their communities.
The regulatory framework
Under the
Local Government Act 1995
and associated legislation and regulations, the department is responsible for
the regulation of the local government sector in Western Australia. Its
responsibilities are to:
- Build good governance in the sector and provide effective regulation.
- Strengthen the capacity of the sector to meet community aspirations.
Intent
The intent of the framework is to:
- Demonstrate the department 's commitment to using its powers in a way that is, and is seen to be, firm, fair and consistent.
- Demonstrate the transparency of the compliance process.
The compliance framework is not a legal document; it is provided for the
purposes of information and does not limit the discretion of the department to
take any action it sees fit under the
Local Government Act 1995 and associated legislation.
Principles
The compliance strategy is built on the following principles:
- Transparency - in the approach to compliance including the tactics used.
- Proportionality
- to focus the compliance effort on areas of risk and seek to improve
the overall governance of the local government sector. While the department cannot ignore a complaint about a breach of the law, it can determine
its level of response.
- Informed and unbiased - action taken in
response to a complaint will be informed by the gathering of relevant
information from all appropriate sources to ensure the decision is fully
informed, based on proper judgment and unbiased.
- Natural
justice - to accord the subject/s of the complaint with the opportunity
to respond, although the department will not allow the matter to unnecessarily
extend because of an unreasonable delay on the part of the complainant
or respondent.
Education and support
The department supports
the local government sector to build its capability through the
provision of education, advice and other services. The department is committed to
providing accurate, consistent and timely information to help the
sector understand its obligations, and does this by:
- providing
quality, up-to-date and timely information via phone contact, as well
as information via the the department website and publications
- ensuring
there are systems in place that capture information to provide both
the department and the sector with data about key risk areas and then developing
products and services to assist the sector address those key risks, and
- providing
targeted advice and support through proactive compliance visits that
are aimed at identifying key risk areas and encouraging local
governments to address these in a timely and effective way.
When
requested, the department will endeavour to provide interpretive advice relevant
to the legislation but it is not able to provide legal advice or
opinions nor (in most cases) share with the sector or other stakeholders
legal advice it seeks or receives in respect of the statutory
framework.
Dealing with non-compliance
The department deals with
non-compliance by focusing reactive audits and investigations on those
who have chosen not to comply, or where there is evidence of serious
non-compliance, regardless of the reason for this.
This is done by:
- undertaking
research and gathering intelligence about sector performance leading to
a deeper understanding of the sector's governance performance. This
allows the department to segment the sector according to risk so that its
compliance effort is focused on those most at risk of non-compliance
- using
this information, and other sources (such as formal complaints), the department will investigate allegations or instances of non-compliance and, in the
most serious of cases, undertake authorised inquiries, and
- taking
prosecution action against an individual where a prima facie case
exists and a prosecution is in the public interest. Very serious
systemic (whole of organisation) issues may result in an independent
inquiry being held.
Procedural fairness
Where a formal investigation or authorised inquiry is undertaken, the department will:
- Ensure
it is undertaken as efficiently as possible. The department understands that
being under investigation is difficult for all parties involved, and is
committed to undertaking quality investigations. It is important that
all parties understand that this takes time.
- Seek information
voluntarily, but where this is not provided within a reasonable
timeframe the department will issue a notice directing the production of
information in accordance with the
Local Government Act 1995.
- Ensure
that the processes of natural justice are applied so that individuals
have the right of reply where an allegation has been made or during any
other process applied by the department . The department will also apply reasonable time
limits to the natural justice process to ensure the timely progress of
investigations and inquiries.
Compliance model
The
compliance model assumes that the local government sector will, by and
large, comply or seek to comply with its statutory obligations.
Therefore, it is not appropriate for the department to respond to all compliance
issues in the same way; it will seek to educate and inform where genuine
attempts at compliance are being made. Equally, the department will impose the
full force of the law when there is evidence of a serious non-compliance
or systemic or repetitive breaches.

Compliance approach
The department 's approach to compliance aims to be holistic.

Compliance tactics
The department can use a variety of tactics to obtain information about governance
standards and/or in response to complaints about particular practices.
These are outlined in the following table along with an overview of why
the department might take a particular approach.
Advice, education and support
Media monitoring (eg local newspapers) | This allows us to keep a ‘finger on the pulse’ and quickly identify any emerging issues. | Low |
Monitoring Minutes of council Meetings | This
allows us to ‘remotely’ monitor Council performance around the conduct
of meetings and identify any potential concerns ideally before they
becomeissues. | Low |
Using Departmental Data | The
Department maintains a database of information drawn from the sector
and uses this to identify emerging issues and trends, the extent to
which compliance has/has not been an issue in the past etc. | Low |
Attending council Meetings | This
is one tool that allows us to assess the conduct of a meeting and
determine whether there are any concerns around process/approach etc.
While we may notify the Council in advance of our attendance we may also
attend unannounced – the latter approach means our attendance does not
affect the conduct of the meeting but also allows us to observe
proceedings in their more natural setting. | Low |
Targeted and proactive compliance
Compliance checklists | We
will issue checklist style requests for information from the sector
when we are seeking information relating to a specific compliance
element. | Minor |
Proactive compliance | We
will undertake proactive compliance audits (for example Better Practice Reviews
and Probity Audits) to gather information about compliance at a specific
level (for example focused on a particular organisation or a specific issue). | Minor |
Letters and phone calls | We will issue requests for information either formally (for example via letter) or informally (For example via phone or email). | Minor |
Discussions with council auditor | In
some instances (For example where there is a concern/issue around financial
compliance) we may elect to discuss our concerns with the Council
Auditor to establish whether there is a need to investigate further. | Minor |
Complaint investigations
Issuing a Directions for information notice | We
will formally issue a Directions for Information letter in more serious
circumstances or where information has not been provided voluntarily or
in response to other less formal requests. | High Risk |
Investigation | We
may investigate a complaint by seeking information from the
complainant, person/s of interest, witnesses etc and then forming a
conclusion, based on all the evidence provided. | High Risk |
Complaint investigations
Authorised Inquiry | The
CEO of the Department may authorise an Inquiry into the operations/
affairs of a local government organisation. This action is not taken
lightly but in response to indications of systemic compliance/governance
issues. Departmental staff and/or other suitably qualified people will
usually be authorised to conduct such an inquiry and to exercise powers
and responsibilities provided under Part 8 of the Local Government Act
1995 | Serious |
Responding to compliance matters
The department 's response will vary depending on the risk level and possible consequences. The response approach is generally as follows:
Advice: complaint unfounded | Where
there has been a complaint lodged but investigation shows there has
been no breach the department will notify the council accordingly. |
Formal or informal feedback | In
cases where the department has, for instance, formed a view about local
government/council operations (for example via announced or unannounced
attendance at council meetings) it will notify the council of the
outcome including, where applicable, providing feedback about the
conduct of the meeting. |
Request for follow up action | If
the issue is perceived by the department to be low-level it may issue a letter
to the relevant council outlining the issue and asking for details of
corrective action that will be taken. |
Meeting procedure training | The department provides training on meeting process understanding and working with
standing orders to help achieve best practice. This could include mock
council meetings to demonstrate practical application of meeting
process. |
Peer support program | The department works proactively with the Western Australian Local Government
Association (WALGA) and the Local Government Managers Australia (LGMA
WA) to deliver a peer support program that is aimed at early
intervention where there has been a breakdown in good governance (most
often around a breakdown in relationships). |
Mediation | The department will facilitate mediation sessions to address issues where this is
considered an effective strategy – this occurs mostly around
relationship breakdowns. |
Referral to the Corruption and Crime Commission (ccc) or another State or Federal body | Where
there are serious allegations made the department may exercise its legislative
powers and refer the matter to the CCC or another State or Federal body. The department is also required to notify the CCC in the circumstances where it
suspects misconduct may have occurred. |
Referral to the State Administrative Tribunal | As
a result of an investigation, where there is prima facie evidence of a
serious breach, the department may refer a matter to the State Administrative
Tribunal. This action may be taken as an alternative to criminal
prosecution. |
Suspension | The
Minister for Local Government may suspend a council before or after an
Inquiry if there is a concern about the council being able to perform
its function due to the seriousness or duration of an Inquiry, if the
Minister believes the Inquiry may be prejudiced if the council were to
continue to operate or if there are other factors the Minister considers
relevant. the department can provide advice to the Minister in relation to a
potential suspension but is not able to effect a suspension. |
Prosecution | Prosecution
action can only be taken against individuals (be they council employees
or elected members) and will occur where there is prima facie evidence
of a very serious breach of the
Local Government Act 1995 and prosecution is considered to be in the public interest. |
In
addition to the actions the department is mandated to take (as outlined above),
the Minister for Local Government may establish an independent inquiry
into a local government where there are concerns about high level and/or
systematic governance issues. The department may be asked to provide advice to
the Minister prior to such a decision being made, however the decision
to establish an independent inquiry can only be made by the Minister
(these powers cannot be delegated). Such an inquiry has the powers of a
Royal Commission and operates independently of the department (although
departmental staff may be seconded by the inquiry to assist it to fulfil
its responsibilities).