Councillor by day, white-collar worker by night.
With all local government election results declared by the Electoral Commission of Queensland, hundreds of councillors and mayors have been sworn into office over the past week, many of them newly elected, pledging to follow the code of conduct.
Amongst these new councillors is former federal LNP and One Nation MP George Christensen, returning to the Mackay Regional Council, where he started his political career in 2004.
Christensen is not the only MP serving in Queensland’s local government bodies, including former Queensland Attorney-General Kerry Shine.
For these MPs, the code of conduct that they are required to abide by, found in the Local Government Act 2009 (Qld), is very similar to the rules for state and Commonwealth MPs.
Or more accurately, very similar in most aspects.
The one big difference is in conflicts of interest.
Obviously, MPs are also bound by conflict of interest rules. In August 2022, several Labor Ministers sold shares that they held in private companies that they had not disposed of before becoming Ministers.
As seen in Common(wealth) Knowledge #11 at the time, the concern here isn’t that they are actually biased, but if there is a ‘reasonable apprehension’ that a decision made by a Minister may be ‘compromised’ because of a conflict of interest.
‘Actual bias’ by a decision-maker is quite difficult to prove. As Lord Justice Moutlon said in Rakusen v Ellis [1912], “I do not say that it is necessary to prove that there will be mischief, because that is a thing you cannot prove.”
Unless and until someone gives the Department of the Attorney-General a time machine, you can’t prove that there was actual bias until that bias already happened, so at that point the justice system is in damage control mode.
The reasonable apprehension of bias is much more common. Any elected decision-maker must not have any actual bias, nor must they be seen to have any potential bias. The public should know that their elected representatives will put public interests over personal financial gains.
All this is to say that those who are intended to act in the public’s best interest must demonstrate that they can and will. In fact, Rakusen involved the actions of a lawyer, who is meant to be, above all, an officer of the court.
However, unlike MPs, many councillors are only part-time, and so have other jobs. MPs are required to give up all other forms of employment if elected; councillors do not, so it must be regulated instead.
Although local governments have less power than the other levels of government, their regulatory powers still have a significant impact on local businesses. And, as seen in Common(wealth) Knowledge #95, Queensland’s local governments have more power than those in other states.
The examples below, which use Toowoomba Regional Council members, are purely hypothetical and nothing should be taken to mean that there is any actual or apprehended bias.
One of the biggest areas of concern is in planning and development, as that’s where a lot of local government powers reside.
Gary Gardner, the Executive Chairman of FKG Group, is one of the two newly elected members of the Toowoomba Regional Council. FKG Group is a construction and property development company.
Among the conflicts of interest that may arise here are in the granting of contracts to build local government roads and ‘special entertainment precincts,’ as found in Section 264 of the LGA (Qld). This can also include refusing contracts to a developer’s competitors.
Section 150EI of the LGA considers the grants of contracts to a company that the councillor works for or with, and thus is a “close associate” of it, to be a ‘prescribed conflict of interest.’ It bars the councillor from debating and voting, though they must be present for the debate and vote.
The second form of conflict, which is adverse to a competitor, would only be considered a ‘declarable conflict of interest’ under Section 150EN, which requires disclosure but does not prevent voting. Even then, while it would be unethical, it falls into a ‘gray area’ of legality.
As FKG Group’s base of operations is in Toowoomba, this could also include zoning and development programs and grants that could help expand the company’s presence in the city.
Trevor Manteufel, the other new councillor, is a real estate agent for RE/MAX Success. If he continued to operate in that role, there would be similar expectations placed on him to disclose any conflicts of interest in relevant council proceedings, and abstain from voting, if need be.
More importantly, the Westgarth family of Westgarth Realty also ran as council candidates. If any of the three Westgarths were elected, chances are that both Manteufel and the Westgarth councillor/s would regularly abstain from any planning and development proceedings, as competing real estate agents.
This is especially true for the Westgarths, because if any of the family members was elected, even if that member then resigned from the company, they would still have a family interest in the company, as a ‘close associate’ under Section 150EJ. This conflict of interest also affects MPs.
Before Kerry Shine got his start in state politics, he ran Shine Lawyers. If he continued to lead, or work at, the company today, he would have to declare a conflict of interest in any decision that could affect the company, either currently or in the foreseeable future, such as in commercial law issues.
However, Shine’s conflict of interest would only be a declarable one, and unlikely at that.
Moving beyond the employment conflict of interest issues, local government members face many other sources of conflicts of interest.
Although on a case-by-case basis, family connections can be relevant. Arguably the most famous couple in Queensland history is Premier Joh Bjelkie-Petersen and his wife, senator Florence Bjelkie-Petersen, although they were in two different levels of government.
In contrast, news reporter-turned-Sunshine Coast mayor Rosanna Natoli will operate alongside her husband Joe Natoli, a councillor. The two are in the same level of government. Again, this is not an accusation, just a hypothetical scenario.
Finally, there are the more common forms of financial conflicts of interest that arise at all levels of government, such as bribery, which led to Operation Sandon in Victoria.
Although nowhere near exhaustive, these examples offer some insight into potential conflicts of interest that may affect local government bodies.