Posted on November 30, 2011 by
The end of the Councillor as MP?
The Division of Local Government in the Department of Premier and Cabinet has called for submissions in response to its Discussion Paper ‘Dual Roles: Councillors as Members of Parliament in NSW’, which it released on the 28th November 2011.
The paper seeks submissions to answer a single question: ‘Should mayors and councillors who are also Members of Parliament be eligible to stand for local government elections?’
The Independent Member for Lake Macquarie Greg Piper, himself a serving Mayor, has attacked the legislation as a back door method to remove Clover Moore, Lord Mayor of Sydney since 2004, and Member for the State electorate of Bligh since 1988. Ms Moore is an independent member of Parliament.
‘They haven’t been able to defeat Clover Moore electorally so they’re trying to defeat her legislatively’. Mr Piper is quoted as saying in the Sydney Morning Herald on 28th November.
The spokesman for Minister Don Page stated that ‘The Minister has stated that, as an MP for 22 years, he does not feel that a person can perform both roles and give both equal time and effort’.
There are currently 29 councillors serving in the New South Wales Parliament, 11 of whom are mayors, an impressive total considering there are 93 members in the Legislative Assembly, and 42 in the Legislative Council. The discussion paper poses the question as to whether the dual roles create a conflict between the duties of the local member verses the duties of the councillor. It also repeats the Minister’s concern that one person cannot give both positions the attention they deserve.
Counter to that is the consideration that ultimately both positions are democratically elected. If voters perceived an inability in an individual to be both councillor and Member, the voters themselves decide this every four years. To legislate away the ability to serve both constituencies is arguably an attempt to limit the rights of the voters. Presumably the 29 serving councillors who were elected last March are evidence that the electorate is happy with their performance.
Arguably, being both a councillor and a State MP simultaneously has been mutually exclusive all along, on the basis that a Member of Parliament cannot hold an ‘office of profit under the Crown’ (section 13B Constitution Act 1902 New South Wales). The Discussion Paper raises this very issue, but notes that the current Legislative Council Practice (Lynn Lovelock and John Evans New South Wales Legislative Council Practice, Federation Press, 2008 at page 150) states specifically that the office of a councillor is not an office of profit.
It appears that the question has never been tested in Court. The closest judicial statement is an obiter comment made by Meahger JA in Sydney City Council v Reid (1993) 34 NSWLR 506 at 561 where His Honour stated:
The aldermen of a council are elected by popular suffrage, not appointed by the Crown. They neither ask for, nor, in general, receive, any assistance from the Crown in the discharge of their daily tasks. The extent to which the Crown can interfere with their activities is slight, and the extent to which it does is minimal. In what sense, then can it be said that an employee is “in the service of the Crown”?
While some may see an attempt to attack individual MPs and councillors, the proposition that an MP should not serve as a councillor is hardly new or unique. The practice is currently prohibited in Victoria, Queensland, Western Australia, and South Australia, while a bill to this effect is already before the Tasmanian Parliament.
The Discussion Paper seems to favour prohibiting councillors from being members of Parliament. In the event that such legislation were passed by the current government, the Discussion Paper indicates that the legislation could follow the Victorian Local Government Act by allowing sitting members who are councillors to remain for their current term, and not stand again at the 2012 scheduled elections, thus avoiding by-elections.
So if you have a strong view either way, you have until 31 January 2012 to make your submission to the Division of Local Government. You can obtain a copy of the discussion paper with details on how to make a submission here.