COUNCIL 3 NOVEMBER 2014
ITEM 3.4. BUSINESS VOTING IN THE CITY OF SYDNEY
FILE NO: S051491
MINUTE BY THE LORD MAYOR
To Council:
On 25 September 2014, the City of Sydney (Elections) Amendment Bill became law. This undemocratic Bill, negotiated by Liberal Councillor Edward Mandla and the Shooters and Fishers Party’s Robert Borsak, was put through Parliament without community consultation and based on a false premise - that businesses were being denied the right to vote in City of Sydney elections.
Business owners have always had the right to vote in City of Sydney elections, and I support business owners having this right. I recognise the contribution business, particularly small and medium business, make in our city, providing important services, diversity and employment to our residents, workers and visitors.
I also support the right of business people to decide for themselves whether they wish to enrol and vote, while making the process as easy as possible. The changes to the City of Sydney Act will take that right away. Business owners will be automatically enrolled without their consent.
I believed that changes were needed to make it easier for businesses to enrol. Earlier this year, Council adopted my Mayoral Minute which set out changes that would improve the enrolment process.
Alex Greenwich the Member for Sydney introduced a Bill into Parliament to implement these reforms while ensuring businesses retained the right to make their own decisions about enrolling and voting. Under Alex Greenwich’s Bill, businesses would be able to enrol at any time and their details would be checked and updated before each election. This would have overcome a major criticism of the former system, which was that businesses had a limited time to enrol, and this time coincided with the period leading up to and just after the end of the financial year.
Apart from denying businesses the right to make their own decisions about enrolment and voting, the Shooter’s Bill gives corporations two votes compared to one vote for residents and transfers responsibility for compiling the non-residential electoral roll from the independent NSW Electoral Commission to the City’s Chief Executive Officer.
The Bill was based on a model used in Melbourne City. Yet, just days before the final vote in the NSW Parliament, Victoria’s Local Government Electoral Review Panel released a report which recommended abandoning the key elements of the Melbourne model.
This Panel was chaired by former Federal Liberal MP Petro Georgiou AO. He was assisted by Anne Murphy OAM, a former Mayor and Councillor and President of the Municipal Association of Victoria, who was appointed by the Kennett Government as Commissioner of the councils it sacked during the 1990s. The other Panel member was Sally Davis, a former conservative independent Councillor.
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The Georgiou review’s recommendations included:
• corporations should have one vote – not two; • the Victorian Electoral Commission should be responsible for preparing the City of Melbourne roll, not the City’s general manager; and • automatic enrolment of business voters should cease.
Petro Georgiou, in discussing his review, said “A corporation is a legal individual and it should be treated as an individual and that means one vote."
The review states that:
“Just as individuals are given only one vote in each municipality, corporations would have the ability to nominate one representative in a municipality to exercise their entitlement. This would apply to the City of Melbourne, where currently companies are able to appoint two voting representatives, despite the vote being derived from one legal entity.” and
“The Victorian Electoral Commission (VEC) has made representations to the Minister for Local Government to consider a statutory role for the VEC as the default provider of Victorian local government election services. Queensland, South Australia and Tasmania have already assigned this role to their electoral commissions for local government and state elections.
The strongest argument in support of the VEC being assigned the statutory provider function is the support to the integrity of the system served by appointing a single, independent, impartial and expert provider.”
The amendments to the City of Sydney Act take our City in the opposite direction.
The most reprehensible change allocating two votes to corporations was undertaken despite very strong opposition from the community and business sector. Business groups and businesses had not sought two votes. Some business spokespeople have expressed concern about the unnecessary division this move has created between the business community and residents.
Respected independent election analyst Antony Green, in a blog on 5 September 2014, said:
“The two votes idea is completely at odds with Australia history, and with democracy as understood in most western democracies.”
There are even members of the Liberal Party who do not support this change. On a Background Briefing broadcast on Radio National on 6 October 2014, former Liberal MLC Patricia Forsythe, the executive director of the Sydney Business Chamber, said:
“We had always argued for a vote. Two votes was not our position. It's probably still not our position. We couldn't get a handle on why. To that extent, we were critical of what the government has done.”
The interview continued:
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COUNCIL 3 NOVEMBER 2014
“Ann Arnold (interviewer): I understand you're a former Liberal, a former MLC, and some of your Liberal contemporaries are uncomfortable with the idea, they feel that it is actually undemocratic. Do you share that view?
“Patricia Forsythe: I do.”
The Background Briefing program revealed Liberal Councillor Edward Mandla was extensively involved in developing the Bill. It revealed that Councillor Mandla saw two votes for business as a “compromise”, and believed there were arguments for businesses getting five or 10 votes.
The full program and a transcript is available at http://www.abc.net.au/radionational/programs/backgroundbriefing/2014-10-05/5779864
The Bill, as first introduced into Parliament, contained a major flaw - it disenfranchised thousands of small businesses who were already entitled to enrol and vote.
Had this flaw not been pointed out by Councillor Angela Vithoulkas and Alex Greenwich MP, these champions of business - Councillorr Mandla and Robert Borsak - would have wiped out most of the business vote at future City of Sydney elections!
While this error was eventually corrected, the voting process for business in the City could have been much improved had the Bill’s proponents consulted businesses and the community.
The Bill has been roundly criticised. The Local Government NSW Board, who represent all 152 councils in NSW, unanimously condemned the changes.
Keith Rhoades, the President of Local Government NSW, said an Upper House MP had told him that the Bill was the worst written Bill they’d ever seen introduced into Parliament.
“From Tenterfield to Temora, from Broken Hill to Bondi, right across this state, I have never seen councils so united against a Bill that’s been introduced into the Parliament that they oppose,” Councillor Rhoades said.
“I’m proud to say that it was a unanimous decision by the Local Government NSW Board to absolutely oppose every single piece of the Shooters Bill.”
Implementation Challenges
The City now faces a formidable administrative challenge to ensure that the changes to the City of Sydney Act are implemented in an ordered and logistically sound manner, while ensuring there is minimum disruption for local businesses.
It is equally important to ensure that the enrolment system is transparent, corruption resistant, tamper-proof and remains impervious to political influence and interference.
Unfortunately, the Bill contains a significant challenge to ensuring transparency.
It requires the Chief Executive Officer to establish and maintain a non-residential roll electoral information register, which is to be used to prepare the electoral roll. This register must not be available for public inspection.
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This means occupiers and owners of rateable land included on the register cannot check whether the information recorded about them is up to date and accurate. Moreover, members of the public cannot check whether bogus businesses have been included on the roll, or whether legitimate businesses have been left off.
Without these checks, a future council could take advantage of this secrecy to rort the roll.
While some may suggest this is far-fetched, the recent ICAC hearings have revealed the extent to which political parties will go to further their political ambitions. It is therefore essential that the City take every step possible step to ensure that future roll rorting does not occur.
Obtaining expert probity advice should be a first step in designing and implementing the non-residential enrolment system. This should include advice on steps that will help ensure that, as far as possible, the preparation of the roll occurs at arms-length of council, to ensure its integrity and independence and the potential for roll rorting is removed.
While the changes anticipate several steps in the preparation of the non-residential roll, how these relate to each other will require further examination and clarification. The Chief Executive Officer may need to seek advice on these matters in order to develop a flow chart and timeline to guide the implementation process.
Government amendments to the Bill enable the City to engage other persons or bodies to assist in the preparation of the roll. The Chief Executive Officer will need to consider whether the City should exercise this option. Under the Amendments, the Chief Executive Officer will retain final responsibility for the roll if this option is exercised.
The most significant practical challenge will be identifying every occupier within the City of Sydney who is now required to be enrolled by the City of Sydney Act.
There are significant variations in estimates of the number of potential voters. The Liberal Party and the Shooters have claimed that there are 80,000-plus eligible business voters; however, the City’s most recent Floor Space and Employment Survey, undertaken in 2012, found that there were 21,644 business establishments employing workers.
These include business establishments where the occupiers may already be enrolled as residents, business establishments where the occupiers may not be eligible to vote, and multiple business establishments which have single owners, such as bank branches.
And contrary to the suggestion made by Councillor Mandla at a recent Council meeting, the task of identifying occupiers cannot be completed simply by using the Yellow Pages.
The Yellow Pages, at best, lists businesses possibly operating within the City of Sydney, usually by their trading name. Essential information, such as who owns and operates these businesses, is rarely provided. In many cases, businesses may be owned by corporations with names bearing no relation to the businesses’ trading names. Often, the only contact information listed is a mobile, 1300 or 1800 number. Not surprisingly, the Yellow Pages also include businesses that no longer operate and information that is not accurate and up to date.
Importantly, the Yellow Pages is totally dependent on the businesses themselves providing accurate and up to date information. To give one example, Councillor Mandla’s own business, Mandlason Search, is not listed in the Yellow Pages online.
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The City will need to develop a strategy for how to approach individual businesses to obtain the information necessary to prepare the roll.
The Bill gives the City of Sydney coercive powers, including fines of up to $2,200, to obtain this information.
The City of Melbourne does not have similar powers and I would hope that, in developing an implementation program, the City of Sydney does not rely on these powers and regards them as a last resort only to be used when all other means have been exhausted.
An effective implementation program will need to be sensitive to the way businesses operate. This includes ensuring businesses have ample notification of the information required from them and time to gather that information. Priority should be given to ensuring appointments to obtain information from businesses are scheduled at their convenience and not during their busy periods.
An education campaign which informs businesses about the need to collect information from them may need to be part of the implementation program.
The City will also need to establish a non-residential roll electoral information register as a comprehensive database capable of recording the information collected from businesses and integrating this information with information obtained from the NSW Electoral Commission and the Australian Securities and Investment Commission. It is also essential that this database is able to be inspected by authorised probity officers to ensure its integrity and that it is rort-free.
I am therefore requesting the Chief Executive Officer obtains probity advice and develops an implementation program in accordance with the principles set out in this minute to ensure the City of Sydney complies with the amended City of Sydney Act and to keep Council informed on the development of this program.
RECOMMENDATION
It is resolved that Council:
(A) condemn the NSW Liberal National Party Government and their partners - the Shooters and Fishers Party and the Christian Democrats - for enacting anti- democratic legislation giving businesses two votes;
(B) note that the “two votes for business” Bill was strongly opposed by the community and did not have the support of key business leaders or some members of the Liberal Party; and
(C) request the Chief Executive Officer obtain probity advice and develop an implementation program in accordance with the principles set out in this Minute to ensure the City of Sydney complies with the amended City of Sydney Act and keeps Council informed on the development of this program.
COUNCILLOR CLOVER MOORE Lord Mayor
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