Katherine Edwards Colin Biggers & Paisley Lawyers Good Governance in Practice I Fraud prevention, conduct and performance Performance Improvement Orders Katherine Edwards Colin Biggers & Paisley Lawyers

Statistics Why were Performance Improvement Orders (PIO) introduced? What are PIOs? What is the process for issuing a PIO? Criteria for issuing a PIO Examples of PIOs – issued and current Case study – Balranald Shire Council Take home messages

Statistics 1,107 Average complaints per year Data from the Office of Local Government website

Statistics Complaints received between July 2016 & June 2017 spread over 120 councils Graph from the Office of Local Government website

Why were Performance Improvement Orders introduced? Hansard Second Reading Speech (Mr. Donald Page, 26 February 2012) "…an early intervention framework to drive improvement." "…used where the council is failing to properly apply administrative or procedural frameworks or to comply with legislative requirements, where there is a significant adverse impact and where softer options, such as writing a letter requesting compliance, have failed." "…encourage councils to drive their own improvement." "procedural fairness." "…greater public accountability for poor performance."

What are Performance Improvement Orders? Section 438A Local Government Act 1993 (NSW) "The Minister may issue an order in respect of a council if the Minister reasonably considers that action must be taken to improve the performance of the council." Reasons to be provided. State actions required by the council, by individual councillors, or both. Section 438I Local Government Act 1993 (NSW) Suspension order.

What is the process for issuing a Performance Improvement Order? PIO not issued PIO issued in varied form PIO issued and published on the Department's and council's websites Notice of intention to issue an order is given* Council has 7 days (minimum) to make submissions in respect of the proposed PIO Minister is to have regard to submissions (if any)

Criteria for issuing Performance Improvement Orders Clause 413D of the Local Government (General) Regulation 2005 (NSW): the council has failed to comply with its legislative responsibilities, standards or guidelines; there are significant risks facing the council that are not being addressed; previous intervention attempts have failed; council business is being disrupted and the council failing to exercise its functions; there is a pattern of poor or inappropriate behaviour, either by one or more councillors or members of staff of the council, that has not been rectified; any other matter that, in the opinion of the Minister, is relevant to the issuing of the order.

Examples of Performance Improvement Orders issued First issued Strathfield Council - 24 July 2014 Current North Sydney Council - 9 March 2017 Blue Mountains City Council - 22 January 2018 Case study Balranald Shire Council - 24 April 2017

Case study: Balranald Shire Council Notice of intention to issue a Performance Improvement Order

Case study: Balranald Shire Council Performance Improvement Order

Case study: Balranald Shire Council Actions required

Case study: Balranald Shire Council Council's position

Take home messages Council's are responsible for driving their own improvement. The Minister has the discretion to issue Performance Improvement Orders to drive a councils improvement where required. Opportunity to improve. The Minister may also suspend a council or order a public enquiry if the council fails to improve its performance.

Katherine Edwards Solicitor Katherine.Edwards@cbp.com.au (02) 8281 4610