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Investigation into the conduct of councillors of the former Canterbury City Council and others (Operation Dasha)

Investigation report · Independent Commission Against Corruption (NSW ICAC) · New South Wales · Published

Findings
4
Recommendations
23
Published responses
11
Report length
212 pages

Findings 4

Allegations are not findings. A commission's finding or opinion of corrupt conduct or misconduct is not a finding that a person is guilty of a criminal offence, and the commissions say so in their reports.

  1. serious corrupt conduct

    Finding

    The Commission found that Mr Hawatt engaged in serious corrupt conduct by:

    Report, page 9, Summary of investigation and outcomes

  2. serious corrupt conduct

    Finding

    The Commission found that Mr Azzi engaged in serious corrupt conduct by: • on 16 November 2014, allowing Mr Stavis to photograph Mr Hawatt’s copy of the “suggested interview questions” for the position of director of city planning, thereby improperly advantaging Mr Stavis in his application for that position (chapter 2) • between about 24 December 2014 and 18 February 2015, misusing his position as a councillor of the Council to pressure improperly Mr Montague to appoint Mr Stavis as director of city planning (chapter 2) • failing to disclose his relationship with Mr Maroun, and proceeding to exercise his official functions as a councillor of the Council to vote in favour of the development application with respect to Mr Maroun’s property at 538-546 Canterbury Road, Campsie, for six storeys on 4 December 2014, the planning proposal on 14 May 2015, and the s 96 and development applications on 10 March 2016 (chapter 8) • in or around November 2015, misusing his position as a councillor of the Council by threatening Mr Stavis that he would be out of a job if he did not “fix” a deferred commencement condition requiring a three-metre setback from the rear boundary recommended in respect of development applications for 212-218 Canterbury Road, 220-222 Canterbury Road and 4 Close Street, Canterbury (chapter 9) • on 3 December 2015, failing to disclose his relationship with Marwan Chanine, and proceeding to exercise his official functions as a councillor of the Council to vote on the development applications with respect to the properties at 212-218 Canterbury Road, 220-222 Canterbury Road and 4 Close Street, Canterbury, being properties in which he knew Marwan Chanine had an interest (chapter 9).

    Report, page 10, Summary of investigation and outcomes

  3. serious corrupt conduct

    Finding

    The Commission found that Mr Montague engaged in serious corrupt conduct by: • on or about 8 December 2014, appointing Mr Stavis as director of city planning believing that he was not the most meritorious candidate for that position because he improperly allowed himself to be influenced by pressure from Mr Hawatt and Mr Azzi to make the appointment (chapter 2).

    Report, page 10, Summary of investigation and outcomes

  4. serious corrupt conduct

    Finding

    The Commission found that Mr Stavis engaged in serious corrupt conduct by:

    Report, page 10, Summary of investigation and outcomes

Recommendations 23

  1. Recommendation 1

    That the NSW Department of Planning, Industry and Environment (DPIE) amends the Guidelines for the Appointment and Oversight of General Managers to recommend that the performance agreements of general managers include performance indicators related to ethical culture. Specific measures that could be promoted include the conduct and measurement of outcomes from staff surveys and the promotion of whistleblowing procedures.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  2. Recommendation 2

    That the DPIE conducts a review into the “no reason” termination provision in the Standard Contract, which should canvass options such as requiring a two-thirds majority vote of a council, an absolute majority vote or the availability of mediation.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  3. Recommendation 3

    That the City of Canterbury Bankstown Council ensures that it has a recruitment policy that applies to the appointment of senior staff, which is consistent with the relevant provisions of the Local Government Act 1993 (“the LGA”).

    Report, page 11

  4. Recommendation 4

    That the DPIE clarifies what constitutes “consultation” with council by the general manager for the purpose of appointment and dismissal of senior staff as required by section 337 of the LGA. The clarification should: detail acceptable consultation processes and procedures in the absence of compelling reasons to the contrary, recommend restricting or, preferably, prohibiting councillor-dominated interview panels.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  5. Recommendation 5

    That the DPIE introduces guidelines under section 23A of the LGA concerning the appointment of senior staff. The guidelines should address the following: that a senior human resources manager, or external recruitment consultant, be involved in recruitment processes, and have a role in verifying that council processes and procedures were followed in the appointment of senior staff the inclusion of subject matter experts on interview panels for the appointment of senior staff, especially for high-risk positions that require specialised technical knowledge the provision of independent assurance through the involvement of internal audit in conducting periodic reviews into senior staff recruitment processes the appropriate avenues for reporting concerns about process or complaints about suspected corrupt conduct.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  6. Recommendation 6

    That the DPIE amends the Model Code of Meeting Practice for Local Councils in NSW to require that council business and briefing papers include a reminder to councillors of their oath or affirmation, and their conflict of interest disclosure obligations.

    Report, page 12

  7. Recommendation 7

    That the NSW Government amends the Lobbying of Government Officials Act 2011 to ensure all provisions apply to local government.

    Report, page 12

  8. Recommendation 8

    That the DPIE, following a reasonable period of consultation, issues guidelines under section 23A of the LGA to introduce measures to enhance transparency around the lobbying of councillors. The guidelines should require that: councils provide meeting facilities to councillors (where practical) so that they may meet in a formal setting with parties who have an interest in a development matter councils make available a member of council staff to be present at such a meeting and to prepare an official file note of that meeting to be kept on the council’s files (any additional notes made by the member of council staff and/or the councillor should also be kept as part of the council’s records) all councillors be invited when a council conducts formal onsite meetings for controversial re-zonings and developments council officers disclose in writing to the general manager any attempts by councillors to influence them over the contents or recommendations contained in any report to council and/or relating to planning and development in the local government area.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  9. Recommendation 9

    That, where there has been corrupt conduct as defined in the Independent Commission Against Corruption Act 1988 , the NSW Government reviews the State Records Act 1998 in relation to the appropriateness of: offence provisions, including where there has been a wilful failure to keep records required by the State Records Act 1998 time limitation for the commencement of a prosecution for an offence penalties for offences.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  10. Recommendation 10

    That the DPIE reviews the concept of “assumed concurrence”, including the avenues that exist for clause 4.6 in each council’s local environmental plan (LEP), to be used as a de facto plan-making device when concurrence is assumed.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  11. Recommendation 11

    That the DPIE identifies the circumstances and establishes criteria to determine when the secretary’s assumed concurrence will be granted and when it will be withdrawn from councils, which takes into account: the potential for clause 4.6 to be used as a de facto plan-making device that the risk of the improper use of clause 4.6 extends to all local government areas in NSW.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  12. Recommendation 12

    That the DPIE prepares and, following a period of public consultation, makes public new guidelines on varying development standards for councils that consider the criteria for assessing variations to development standards that are applicable to clause 4.6.

    Report, page 12

  13. Recommendation 13

    That the DPIE establishes a clear process to ensure that guidelines for councils on varying development standards are subject to regular review and can accommodate advice or changes arising from decisions of the NSW courts.

    Report, page 12

  14. Recommendation 14

    That the DPIE prepares and publicises guidelines that establish a framework for conducting risk-based audits on the use of clause 4.6 by consent authorities. These guidelines should include: the scope and frequency of audits conducted to monitor the use of clause 4.6, including the circumstances for conducting any special audits a requirement that the matters to be examined in an audit reinforce the objectives of conducting the audit an outline of the audit methodology clear instructions for the staff undertaking the audit a requirement to publish ongoing records of the audits and their results, observations and recommendations the necessary skills required by staff conducting the audits.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  15. Recommendation 15

    That the DPIE provides advice to councils regarding the inclusion of clause 4.6 in the cycle of audits conducted by the audit and risk committees of councils.

    Report, page 13

  16. Recommendation 16

    That the DPIE: considers the circumstances in which the application of both maximum height of building development standards and maximum floor space ratio (FSR) development standards should be mandatory in LEPs establishes clear, robust and objective criteria to determine when it is impractical to pair maximum height of building development standards with maximum FSR development standards in LEPs.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  17. Recommendation 17

    That the DPIE: applies a risk-based assessment that considers corruption risks prior to the drafting of Gateway Determinations authorising councils to make LEPs takes measures to verify that councils have complied with Gateway Determination conditions establishes a program of regular risk-based auditing of council processes relating to the making of LEP amendments to help provide assurance over systems and to establish whether gateway conditions were met (the outcome of audits should inform future Gateway Determinations authorising councils to make LEPs).

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  18. Recommendation 18

    That the method for calculating fees associated with local development applications be reviewed by the DPIE with the aim that estimated cost of works is no longer relied on. Instead fees should be: determined by criteria that are clear, robust and objective capable of easy verification by consent authorities.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  19. Recommendation 19

    That the DPIE considers a clear, robust and verifiable alternative to capital investment value as a jurisdictional threshold for planning panels.

    Report, page 13

  20. Recommendation 20

    That the DPIE strengthens guidance for councils and planning panels to help ensure development applications are not split by development proponents into multiple applications to avoid referrals to planning panels.

    Report, page 13

  21. Recommendation 21

    That the City of Canterbury Bankstown Council develops standardised provisions for consultancy services agreements and a statement of business ethics for suppliers. The agreements and statement of business ethics should advise consultants about: how to make disclosures under the Public Interest Disclosures Act 1994 the City of Canterbury Bankstown Council’s ethical obligations their ethical responsibilities the jurisdiction of the ICAC Act.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  22. Recommendation 22

    That the DPIE issues a practice note, or other similar guidance, on the topic of local councils obtaining specialist advice about planning matters, including obtaining urban design studies. The practice note should address: what constitutes proper interactions between councils and consultants engaged to provide advice when specialist advice, independent of a development proponent, should be requested and relied on.

    Canterbury City Council - allegations concerning former councillors and other public officials (Operation Dasha), Recommendations for corruption prevention

  23. Recommendation 23

    That the City of Canterbury Bankstown Council ensures that its development assessment procedures assess and verify compliance with design requirements for residential apartment developments, including provisions relating to design verification statements.

    Report, page 14

Published responses 11

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