Addressing Complaints and Grievances
In general, councils aim to deal with these matters quickly and to achieve an effective remedy at the first contact. Requests for review, and complaints, have a constructive aspect in that they provide an opportunity for councils to review how services are delivered and to identify areas for improvement.
A key principle underpinning open, responsive and accountable government is access by citizens to a fair grievance handling process. It is important that there is a process for the review of Council decisions and actions, and that people can have confidence that matters raised will be dealt with objectively, fairly, and in a timely manner.
Frequently asked questions about dealing with complaints against Councils:
1. What is the role of the Minister for State/Local Government Relations?
People sometimes ask the Minister for State/Local Government Relations to deal with a complaint they have against a council, to change a decision that a council has made, or in extreme circumstances to remove a council from office. The Minister has no general power to overturn a council’s decisions or remove a council from office. However, under section 272 of the Act, there are some exceptional circumstances under which the Minister can take action including cases where a council has:
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Breached an Act of Parliament;
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Failed to discharge a responsibility; or
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Where there has been an irregularity in the conduct of a council’s affairs.
In these circumstances the Minister can appoint an investigator to examine the matter.
It is only on the basis of an investigator’s report, or a report of the Ombudsman, or the Auditor-General finding serious that the Minister is able to direct a council or recommend dismissal of the council to the Governor.
2. How does the Local Government Act provide for complaints against Councils?
The Local Government Act strengthens the accountability of councils by providing individuals and groups with access to fast, inexpensive and enforceable remedies for unlawful and unfair actions of councils.
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The Act provides for councils to establish procedures for the internal review of council decisions and sets out the framework for the procedures (section 270). Read more about the Council internal review procedure...
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Some provisions in the Act also describe appeal provisions in certain circumstances, such as objections to valuations for rating purposes (section 169).
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Other legislation relevant to councils contains prescribed appeal processes, for example, the Development Act. Read more about Complaint and Review Mechanisms...
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There are also complaint processes and review mechanisms in place for matters relating to competitive neutrality, fraud and corruption, discrimination, and the remedies available through the courts system. Read more about Complaint and Review Mechanisms...
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The Local Government Act provides for the Ombudsman to investigate complaints that a council has unreasonably excluded members of the public from its meetings, or unreasonably prevented access to meeting documents, or to conduct a review of the practices of one or more councils or Council committees in relation to access to meetings and documents (section 94).
3. What if I have a complaint or grievance with a council?
The first thing to do is to contact the council to inform them of your complaint and to discuss the matter. This link will help you to find out how to contact your council, or to identify which Local Government council area you need to contact.
Often complaints can be sorted out very quickly, either by providing information, clarifying what has happened, or finding out the reasons for a council action or decision. It is suggested that you get as much information as you can from the council before taking your complaint elsewhere. You may also want to talk to your local elected council member about your complaint.
If your initial enquiry does not resolve the matter, you can formally ask the council, in writing, for an internal review, under section 270 of the Act.
If you require council documents that are relevant to your complaint, you might find it useful to make a formal request for these documents under the Freedom of Information Act 1991.
4. How do councils’ internal review procedure work?
Section 270 of the Act requires a council to establish procedures for the review of decisions of the councils, employees of the council in question, or anyone else acting on behalf of that council. The procedure must include:
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How an application for review is to be made;
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How a suitable person to conduct the internal review is assigned ( this will not necessarily be someone independent of the Council in question);
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Which kinds of matters must go to Council;
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How notification of outcome and progress of a review will be made; and
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The time frames for notification and completion of the review.
These council procedures must be available for inspection free of charge and for sale for a fee set by councils. They may also be available on the council's website. Visit the Local Government Association website for an alphabetical listing of all councils.
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There is no fee for an application for a review of a council decision.
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Councils can reject an application considered to be frivolous or vexatious, or refuse an application because the applicant does not have a sufficient interest in the matter.
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The review procedures may include the handling of anti-competitive complaints against a council.
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The internal review procedure is not applicable to council decisions that are subject to specific appeal processes through the courts. For example, if you are dissatisfied with a development assessment decision, you would need to lodge an appeal with the Environment Resources and Development Court.
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Generally the internal review will involve a senior officer of council reviewing the decision or complaint and considering the way in which council dealt with it.
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Complainants will be kept informed of the progress of the internal review and the decision after the review is completed.
Note: Commencing a council internal review procedure does not preclude the option of referring the complaint to the State Ombudsman. However, the Ombudsman would prefer that these steps have been taken first, unless there is some urgent reason for by-passing those steps.
Under section 271 of the Act, a council may choose to deal with a dispute by referring the matter to mediation, conciliation or natural evaluation. If both parties agree to this course of action, it might involve the person lodging the complaint sharing the associated costs.
5. What if I have a complaint about a Councillor?
All councils are required to adopt codes of conduct for their elected members. In the first instance, it is suggested that complaints be made in writing to the council in question.
A complaint about an elected member might be regarded as an allegation of a breach of the council's code of conduct. The procedures involved vary, according to the council's code of conduct. The procedures may include assessment of the allegations by someone independent of the council. The council's code of conduct should be available at the council office or on the council's website.
More serious complaints of conflict of interest and fraud and corruption should be made to the Minister for State/Local Government Relations or the Anti Corruption Branch of the SA Police. Read more about Complaint and Review Mechanisms...
6. Can I refer a complaint about my council to the Ombudsman?
The Ombudsman is the first external source of review for people with a complaint or grievance about administrative decisions and matters in Local Government.
Anyone directly affected and/or aggrieved by a Council decision may refer the matter to the Ombudsman. However, the Ombudsman will normally prefer that complaints have been raised direct with the council and/or an application for an internal review made, prior to initiating an investigation of the matter.
It is the State Ombudsman’s role to investigate the legality and reasonableness of an administrative action of State Government agencies and councils. In general the Ombudsman will make preliminary inquiries with a Council that is subject to a complaint or grievance, seeking comments on the complaint, before deciding whether to conduct a full investigation.
The Ombudsman also has specific jurisdiction (under section 94 of the Local Government Act) to examine whether a Council has acted unreasonably in excluding the public from Council meetings or in ordering that documents be kept confidential.
Case studies of the types of matters the Ombudsman investigates are published in the annual report available on the Ombudsman’s website. This website also provides for on-line lodgement of complaints.
7. What other complaint and review mechanisms are there?
Development approvals or enforcement
The Ministers responsible for the Development Act and the Local Government Act do not have power to overturn a council decision, or to order a council to change its decision where those decisions are within those Acts.
For information on development assessment go to the State Government's Planning website.
The public has limited rights to comment on development applications made by others or to appeal against development approvals or conditions for category 3 applications. If appeals are possible, then they are made to the Environment Resources and Development Court.
Applications might be made to the Supreme Court for judicial review if it is believed the Council wrongly classified the development application.
Competitive neutrality
A Competitive Neutrality Complaints Secretariat (the Secretariat) has been established under the Government Business Enterprises (Competition) Act 1996 and is located in the Department of the Premier and Cabinet.
It receives complaints about the application of competitive neutrality policy to significant government business activities run by either State or Local Government.
The Secretariat will refer the complaint to the relevant council for initial investigation, report and possible resolution. The Clause 7 Statement on the Application of Competition Principles to Local Government under the Competition Principles Intergovernmental Agreement advises councils to establish their own formal mechanism to handle complaints.
If the complaint cannot be satisfactorily resolved between the council and the complainant, consideration will be given to assigning the complaint to the Competition Commissioner.
On referral of a complaint, the Commissioner will conduct an investigation and report on whether the complaint has been substantiated and the reasons for the decision. The Commission will assess the complaint using the competitive neutrality policy in place at the time the investigation is referred
If the principles have been infringed, the Commissioner may recommend the implementation of policies and practices to avoid further infringement. A summary of the decision will be prepared and be publicly available on the Department of the Premier and Cabinet website. The summary will not contain confidential information.
The Department of Premier and Cabinet will include in its annual reports information on allegations received by the Commissioner of non-compliance with the policy and the outcome of the investigations into those complaints.
Fraud or Corruption
Complaints from the public alleging fraud or corruption by elected members or staff of a council will generally be referred straight to the Anti Corruption Branch (ACB) of the SA Police, and must be referred to the ACB as soon as possible if made under the Whistleblowers Protection Act 1993.
The Anti Corruption Branch can be contacted on 8207 2200 or Box 1539 GPO Adelaide. Issues can be discussed by telephone in the first instance to check out whether the concerns amount to possible fraud or corruption.
Discrimination
Both the State and Federal Equal Opportunity laws apply to councils in South Australia, including the following Acts:
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Equal Opportunity Act 1984 (SA)
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Sex Discrimination Act 1984 (Cwth)
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Racial Discrimination Act 1975 (Cwth)
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Disability Discrimination Act 1993 (Cwth)
In particular, the above Acts make discrimination unlawful in the provision of goods and services (as well as other areas) on the grounds of gender, marital status, pregnancy, race, sexuality, age, and physical, mental or intellectual impairment. Sexual harassment in the areas covered by the Acts is also unlawful.
Both direct and indirect discrimination is unlawful. Direct discrimination is when a person is treated less favourably in comparison to another in the same or similar circumstances or on the basis of a stereotyped opinion. Indirect discrimination happens when there is a requirement that appears fair but has an unfavourable effect on one group compared to another, and the requirement is not reasonable in the circumstances.
The equal opportunity laws also recognise that some groups in our society have experienced disadvantage in the past, and provide for special measures to be taken to address that disadvantage. Therefore, these laws permit the provision of targeted programs and services to particular groups, such as people with a disability, or for elderly people.
Enquiries and complaints about discrimination and the equal opportunity laws that apply to councils should be directed to the Equal Opportunity Commission on:
Telephone 8207 1977 or freecall 180 1888 163.
E-mail: EqualOpportunityCommission@agd.sa.gov.au and
Website: www.eoc.sa.gov.au
The Courts System
Before considering review and appeal processes through the court system, it is advisable to seek professional legal advice. A court case can involve considerable legal costs, and in some instances, it can involve payment by the litigant of the defending council’s legal costs if the case is lost.
Initial enquiries about legal advice can be directed to the Legal Services Commission, telephone 1300 366 424, or via their website
Freedom of Information
Councils, committees, subsidiaries and development assessment panels are covered by the Freedom of Information Act 1991 (FOI). There are also rights provided to access many council documents, listed in Schedule 5 of the Local Government 1999.
Councils will usually provide many documents on request. The Freedom of Information Act provides an enforceable right to access existing council documents, subject to many exemptions. A council has 30 days to deal with an application, or the application is deemed to be refused. The Freedom of Information ACT also provides for review by the State Ombudsman if a council refuses access to a document. You have 30 days to lodge an application for review with the Ombudsman and this can be done online on the Ombudsman's website.