‘Unconstitutional’: NSW government votes against identical developer ban

The NSW Government has voted against a proposal identical to one submitted in 2017 from labour, calling it ‘unconstitutional’.

LIberal MP Scott Farlow has said, ‘there is a significant risk that a ban such as that proposed in this bill would be declared invalid due to inconsistency with the implied freedom of political communication’. Picture: AAP

The NSW Government voted against an identical version of its own proposal to ban property developers from joining local councils, calling it undemocratic and potentially unconstitutional when it was put forward by Labor three years ago.

The Australian reported on Wednesday that NSW Special Minister of State Don Harwin was examining adjustments to the Electoral Act to prevent developers, real estate agents and their associates from seeking local government preselection.

But it has since emerged that Mr Harwin was one of numerous Liberal and Nationals MPs — including Education Minister Sarah Mitchell and Mental Health Minister Bronwyn Taylor — who voted against an identical bill proposed by Labor in March 2017.

The government criticised that bill in parliament for its “obvious loopholes” and said the proposed ban wouldn’t work because it didn’t extend to employees of property developers, who could sit on councils as proxies. Other problems were also identified; the government also noted that the ban would be undemocratic and potentially unconstitutional.

“There is a significant risk that a ban such as that proposed in this bill would be declared invalid due to inconsistency with the implied freedom of political communication under the Commonwealth Constitution,” said Scott Farlow, a Liberal MP who spoke on the government’s behalf.

“Such a ban would be particularly difficult to justify where there are more proportionate measures available to address the risks associated with property developers or real estate agents holding elected office in local councils.”

But for reasons which haven’t been made clear, the government has changed its ideological position and is now attempting to enact the same policy.

NSW local government elections are due to be held on September 12, with preselection contests earmarked to commence in a matter of weeks, meaning the matter has to be resolved as a matter of priority.

Labor’s Greg Warren, shadow minister for local government, said Mr Harwin and Premier Gladys Berejiklian needed to explain their change of heart. Mr Harwin declined to comment and the premier did not respond.

“Labor partnered with the local government sector and we even tried to work with the Liberals and Nationals to get it done, but in 2017 Ms Berejiklian directed her Liberal and National mates to vote against these draft laws,” said Mr Warren.

“Don Harwin himself, the person apparently leading the charge now, sat in parliament and voted against these rules with the rest of the Liberals and Nationals.”

Environment Minister Matt Kean, who did not vote on the bill, told The Australian this week that he was strongly in favour of Mr Harwin’s proposed ban, citing it as an integrity measure for all political parties.

“Putting a developer on council is like putting Dracula in charge of the blood bank,” he said, referring to the perceived conflicts of interest they face on matters of planning approvals and rezoning measures.

The move to adjust the legislation arose out of a disagreement within the Liberal Party over how to handle the thorny topic of developers. The party’s moderate and hard-right factions came together in support of the proposal but were blocked by their colleagues in the centre-right factions.

To override this opposition, moderate MPs are seeking to have the law changed for all political parties.