A corporate governance expert says the case of the George Town Council’s removal of councillor Richard Nicholls from his seat rests on the legal definition of being an owner or occupier of land.
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University of Tasmania lecturer Tom Baxter said clarity around the terms owner and occupier in Tasmania’s Local Government Act would help determine which side was correct in the dispute.
Mr Nicholls was removed from his seat on the George Town Council in May after he was struck from the General Manager’s Roll.
Because Mr Nicholls is not an Australian citizen he was unable to be enrolled on the House of Assembly Roll, however the law requires councillors to be enrolled on at least one of the two rolls to serve.
Dr Baxter said if Mr Nicholls was correct in his belief that he was an owner or occupier of a block of land near Hillwood listed under his wife’s name then he would have been eligible to remain on the General Manager’s Roll, and subsequently retain his seat on the council after moving to Launceston.
“It sounds like both parties tried to do the right thing by seeking (legal) advice,” he said.
“If he is ineligible, then council decisions before the general manager removed him from the roll remain valid.”
Dr Baxter said the right to enrol in a municipality other than where a person’s primary residence was located was government by Tasmania’s Local Government Act.
“That Act is currently under review. So if people feel the Act is unfair (not just the application of it here), they could write to the review,” he said. “For example, perhaps councillors deserve more warning and time to obtain advice (a form of procedural fairness) before removal from the roll.
“However, landowners’ rights to be on multiple council rolls, with multiple votes, could privilege them, or be abused. So there are democratic and governance reasons why extra council voting rights for property owners (which includes corporations) should be tightly confined.”
According to the Act, a person is entitled to be enrolled on the General Manager’s Roll if they are an owner or occupier of land in the electoral area, as long as they are over the age of 18, not serving a term of imprisonment, and not subject to an assessment or treatment order under the Mental Health Act or Guardianship and Administration Act.
Mr Nicholls and his wife have an agreement that names him as an occupier of the land at Hillwood. They intend to build on the land, and moved to Launceston earlier this year to renovate a property they own in order to sell it.
