Local Government Legal

Local Government Legal prepares a regular email newsletter with legal updates on relevant court judgements and a summary and analysis of legislative changes.

November 2012 – Amendment to the Local Government “Misbehaviour” provisions

The Local Government Amendment (Conduct) Bill 2012 (“LG Conduct Bill”) proposes to amend the “misbehaviour provisions” of the Local Government Act 1993 (“LG Act”) in relation to the conduct and discipline of councillors.  The proposed amendments are a result of the review of the Model Code of Conduct for councils recently conducted by the Division of Local Government (“DLG”).  The LG Conduct Bill updates the regulatory framework that underpins the proposed new Model Code of Conduct and procedures.

The proposed amendments to the “misbehaviour provisions” are as follows:

Improving the efficiency and effectiveness of investigations by the DLG

  • Disciplinary action will be able to be initiated on a simple referral by a council’s General Manager or on the DLG’s own motion.
  • The DLG will be able to refer any serious matter to the Pecuniary Interest and Disciplinary Tribunal (“PIDT”) regardless of how the disciplinary process was initiated (currently, in cases of serious misconduct, the DLG is not able to refer a matter to the PIDT for the imposition of a stronger penalty if the disciplinary process was commenced at the request of a council (unless the councillor has previously been suspended).
  • The DLG will have greater powers to gather the evidence necessary to investigate.

Strengthening penalties for misconduct

  • The Director General will have additional penalty options to counsel or reprimand a councillor, issue an order directing a councillor to apologise for the misconduct, or to participate in mediation or training, and to suspend a councillor’s right to be paid for up to three months.
  • The current penalty of suspending a councillor for up to one month will be extended to allow the Director General to suspend a councillor from one to three months and to extend the existing power of the tribunal to disqualify a councillor for up to 5 years.
  • The consideration of previous incidents of misconduct in determining a penalty for misconduct will be allowed, enabling the DLG to more effectively manage ongoing disruptive behaviour.
  • The term used in the LG Act will be “misconduct” rather than “misbehaviour” provisions to more accurately reflect the serious nature of the conduct the provisions are intended to address.

Strengthening the implementation of the Code of Conduct by councils

  • Mandatory minimum procedures for the administration of the code will be separately prescribed, accompanied by binding procedural guidance issued by the DLG.
  • The application of the model code and procedures to administrators appointed to councils will be extended.

Ensuring fairness

  • Councils will be allowed to close their meetings to the public to consider Code of Conduct matters, to minimise the disproportionate reputational damage the public reporting of such matters may cause and the consequent exposure of council to legal action.  Where a councillor is found to have breached the code and a penalty is imposed, this will still be recorded in the minutes of the meeting, ensuring public accountability.
  • The same procedural protections and rights of appeal will apply to the new penalties.
  • New procedures by the DLG for the investigation of councillor misconduct will be prepared.

Note:  This information is not to be relied upon as legal advice.

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