Hornsby Shire Council
Attachment to Report No. GM12/08 Page 0
Due to its condensed format this summary, which has been prepared by Ellis-Jones Enterprises Pty Limited, should not be used as a substitute for The Model Code of Conduct for Local Councils in NSW (June 2008), relevantly applicable legislation or professional advice, and does not, and is not intended to, offer professional advice in any form. No warranty or guarantee of any kind is provided by Ellis-Jones Enterprises Pty Limited relating to, and no liability is accepted for, any loss or damage resulting from any person relying on or using the information contained in this summary.
The regulations made under the Local Government Act 1993 (NSW) (the “LG Act”) may prescribe a model code of conduct applicable to councillors, members of staff of councils and delegates of councils.[i] The most recent, and now relevantly applicable, Model Code, entitled The Model Code of Conduct for Local Councils in NSW (the "Model Code" or “Code”), is dated June 2008.[ii]
A council must adopt a code of conduct that incorporates the provisions of the Model Code. The adopted code may include provisions that supplement the Model Code.[iii] However, a council’s adopted code has no effect to the extent that it is inconsistent with the Model Code as in force for the time being.[iv]
Councillors, members of staff and delegates of a council must comply with the applicable provisions of:
(a) the council’s adopted code, except to the extent of any inconsistency with the Model Code as in force for the time being, and
(b) the Model Code as in force for the time being, to the extent that:
(i) the council has not adopted a code of conduct, or
(ii) the adopted code is inconsistent with the Model Code, or
(iii) the Model Code contains provisions or requirements not included in the adopted code.[v]
What now follows is a summary of the Model Code.
PART 1: CONTEXT
This Part of the Model Code establishes the purpose and principles that are used to interpret the standards in the Code, but does not constitute separate enforceable standards of conduct.
The Code is made in 3 Parts: Context, Standards of Conduct, and Procedures.
• Part 1: Context
This Part establishes the purpose and principles that are used to interpret the standards in the Code, but does not constitute separate enforceable standards of conduct.
• Part 2: Standards of Conduct
This Part sets out the conduct obligations required of council officials. These are the enforceable standards of conduct.
• Part 3: Procedures
This part contains the complaint handling procedures, complaint assessment criteria and the operating guidelines for the conduct review committee/reviewer. This Part should be used to guide the management of complaints about breaches of the Code.
Some of the more important definitions for the purposes of the Model Code are the following:
act of disorder see the definition in clause 256 of the Local Government (General) Regulation 2005
conflict of interests a conflict of interests exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your
council official includes councillors, members of staff of council, administrators appointed under section 256 of the Act, members of council committees, conduct reviewers and delegates of council
misbehaviour see the definition in section 440F of the Act
NOTE. The term “you” used in the Model Code refers to council officials.
3 PURPOSE OF THE CODE
The Model Code:
· sets a mandatory minimum standard for conduct by all Council officials including councillors and council staff
· has been developed to assist council officials to:
· understand the standards of conduct that are expected of them
· enable them to fulfil their statutory duty to act honestly and exercise a reasonable degree of care and diligence[vi]
· act in a way that enhances public confidence in the integrity of local government.
4 KEY PRINCIPLES
The Model Code is based on the following key principles:[vii]
NOTE. A person acts "honestly" if the person acts in good faith with no ulterior or improper motive. Acting in good faith means exercising a power strictly for the purpose for which the power was given. Although one must act in good faith in order to act honestly, bad faith is not necessarily the same thing as dishonesty. Bad faith implies improper purpose and can occur even in the absence of dishonesty.
A breach of the obligation to act honestly involves:
· a consciousness (i.e. awareness / knowledge) that what is being done is not in the interests of council, or the community or both, and
· deliberate conduct in disregard of that knowledge.
5 GUIDE TO ETHICAL DECISION MAKING
General decision making
The “five points”
1. Is the decision or conduct lawful?
2. Is the decision or conduct consistent with council’s policy and with council’s objectives and the code of conduct?
3. What will the outcome be for the employee or councillor, work colleagues, the council, persons with whom you are associated and any other parties?
4. Do these outcomes raise a conflict of interest or lead to private gain or loss at public expense?
5. Can the decision or conduct be justified in terms of the public interest and would it withstand public scrutiny?[ix]
Conflict of interests
The “six points”
1. Do you have a personal interest in a matter you are officially involved with?
2. Is it likely you could be influenced by a personal interest in carrying out your public duty?
3. Would a reasonable person believe you could be so influenced?
4. What would be the public perception of whether or not you have a conflict of interests?
5. Do your personal interests conflict with your official role?
6. What steps do you need to take and that a reasonable person would expect you to take to appropriately manage any conflict of interests?[x]
Political donations and conflict of interests
Councillors to take all reasonable steps to identify circumstances where any such contributions could give rise to a “reasonable perception of influence” in relation to their vote or support.[xi]
If uncertain about an action or decision, you may need to seek advice from other people.[xii]
PART 2: STANDARDS OF CONDUCT
This Part of the Model Code sets out the conduct obligations required of council officials. These are the enforceable standards of conduct.
Failure by a councillor to comply with Part 2 of the Model Code – the “standards of conduct” - constitutes “misbehavior” within the meaning of the LG Act.
The LG Act provides for suspension of councillors from civic office for up to 6 months for proven misbehaviour.
Further, failure by a councillor to comply with Part 2 of the Model Code may even constitute a “substantial breach” for the purposes of section 9 of the Independent Commission Against Corruption Act 1988 (NSW) (the “ICAC Act”) (that is, “corrupt conduct” within the meaning of that Act by reason of being a “disciplinary offence”).[xiii]
6 GENERAL CONDUCT OBLIGATIONS
You must act lawfully, properly and ethically, exercising a reasonable degree of care and diligence. You must not abuse your powers. You must not act in a manner that could bring the council or holders of civic office into disrepute. There must be no intimidation, harassment, abuse, discrimination, adverse treatment, etc.[xiv] You must treat others with respect.[xv]
Any councilor found in breach of the Code must comply with any council resolution requiring the taking of action as a result of the breach.[xvi]
Fairness and equity
You must consider issues consistently, promptly and fairly, and deal with matters in accordance with established procedures, in a non-discriminatory manner.[xvii]
You must take all relevant facts, and no irrelevant matters, into consideration having regard to the particular merits of each case.[xviii]
Harassment and discrimination
You must not engage in harassment or discrimination of any kind or in any form, including not limited to harassment and discrimination on the grounds of sex, pregnancy, age, race, responsibilities as a carer, marital status, disability, homosexuality, transgender grounds or if a person has an infectious disease.[xix]
You must ensure that development decisions are properly made and that parties involved are dealt with fairly, avoiding any occasion for suspicion of improper conduct.[xx]
You must ensure that there is no suggestion of willingness to provide improper concessions or preferential treatment.[xxi]
7 CONFLICT OF INTERESTS
A conflict of interests exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your public duty.[xxii]
You must avoid or appropriately manage any conflict of interest, as well as identifying any such conflict and taking the appropriate action to manage the conflict.[xxiii] A conflict of interests must be managed in favour of one’s public duty[xxiv] and upholding the probity of council decision making.[xxv]
Private interests can be pecuniary or non-pecuniary.[xxvi] (NOTE. If an interest is not “pecuniary” that does not necessarily mean that the interest is “non-pecuniary”. There are interests that are neither “pecuniary” nor “non-pecuniary”, e.g. an interest that a councillor has in preserving the heritage of an area.)
What is a pecuniary interest?
A pecuniary interest is an interest that a person (or the person’s spouse or de facto partner or a relative of the person or a partner or employer of the person, or a company or other body of which the person, or a nominee, partner or employer of the person is a member) has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person.[xxvii]
The elements of a pecuniary interest
“OF, BELONGING TO OR HAVING RELATION TO MONEY”
$$$ - FINANCIAL - MONETARY - $$$
EXCLUDES THE KIND OF INTEREST WHICH CANNOT BE SO DESCRIBED
DOES NOT, HOWEVER, EXTEND TO EVERYTHING FOR WHICH MONEY CAN BE OBTAINED
ANYTHING THAT “SOUNDS IN MONEY”.
A REFERENCE TO WHAT WOULD BE SEEN TO
BE THE CORRECT STATE OF
· WHO IS CAPABLE OF REASONING
· WHO HAS KNOWLEDGE OF ALL RELEVANT OBJECTIVE FACTS PERTAINING TO THE MATTER ...BUT NOT “INSIDE KNOWLEDGE” OF YOUR STATE OF MIND.
The ordinary meaning of the word “likelihood” is “probability”
AN OBJECTIVE TEST.
“Expectation” imports the notion of waiting for or looking for something to happen (Oxford English Dictionary).
The Australian Concise Oxford Dictionary (2nd edn, 1992) adds the secondary meaning of something expected or hoped for.
NOTE. According to the NSW Local Government Pecuniary Interest and Disciplinary Tribunal
• The notion of “probability” is not a necessary element of the meaning of the word “expectation”
• the word “expectation” refers to a situation where the prospects of financial gain or loss fall short of being a probability but consist of a “reasonable chance or possibility”.
One’s motives in dealing with the matter are entirely IRRELEVANT. The question is whether the pecuniary interest
· can reasonably be said to exist, and
· can reasonably be regarded as likely to influence any decision one might make in relation to the matter,
not whether or how it had an effect on one’s vote.
MEASURABLE OR QUANTIFIABLE
SUFFICIENTLY LARGE TO BE DISCERNIBLE
THE AMOUNT OF THE GAIN OR LOSS (ACTUAL OR POTENTIAL OR OTHERWISE) DOES NOT MATTER … PROVIDED THE AMOUNT INVOLVED IS NOT TRIFLING.
FINANCIAL GAIN OR LOSS
WOULD THE MATTER, IF DEALT WITH IN A PARTICULAR WAY BY COUNCIL, RESULT IN THE PAYMENT OF MONEY TO YOU OR TO ANOTHER PERSON WITH WHOM YOU ARE ASSOCIATED OR WOULD GIVE RISE TO AN EXPECTATION (SO LONG AS IT IS NOT TOO REMOTE) OF THE PAYMENT OR RECEIPT, OR GAIN OR SAVING OR LOSS, OF MONEY BY OR TO YOU OR THAT OTHER PERSON?
“ACTUAL”, “POTENTIAL”, “CONTINGENT” OR “PROSPECTIVE” FINANCIAL CONSEQUENCES.
REFERS TO LEGAL CAUSATION ... NOT GEOGRAPHICAL LOCATION OR DISTANCE.
SO NEGLIGIBLE THAT IT IS UNLIKELY TO INFLUENCE ANY DECISION YOU MIGHT MAKE IN RELATION TO THE MATTER.
Pecuniary interests are regulated by Pt 2 of Ch 14 of the LG Act. The LG Act requires, among other things, that:
a) councillors and designated persons lodge an initial and an annual written disclosure of interests that could potentially be in conflict with their public or professional duties
b) councillors and members of council committees disclose an interest and the nature of that interest at a meeting, leave the meeting and be out of sight of the meeting and not participate in discussions or voting on the matter
c) designated persons immediately declare, in writing, any pecuniary interest.[xxviii]
What is a non-pecuniary conflict of interests?
Non-pecuniary interests are private or personal interests that do not amount to a pecuniary interest as defined in the LG Act, eg interests arising out of family, or personal relationships, or involvement in sporting, social or other cultural groups and associations, and may include an interest of a financial nature.[xxix] The political views of a councillor do not constitute a private interest.[xxx]
Managing non-pecuniary conflict of interests
A non-pecuniary conflict of interests may be significant or less than significant, and needs to be managed accordingly.[xxxiii]
As a general rule, a non-pecuniary conflict of interests will be significant where a matter does not raise a pecuniary interest but it involves:
a) a relationship between a council official and another person that is particularly close, for example, parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the person or of the person’s spouse, current or former spouse or partner, de facto or other person living in the same household
b) other relationships that are particularly close, such as friendships and business relationships, closeness being defined by the nature of the friendship or business relationship, the frequency of contact and the duration of the friendship or relationship
c) an affiliation between the council official and an organisation, sporting body, club, corporation or association that is particularly strong.[xxxiv]
A councilor must manage a significant non-pecuniary conflict of interests in one of two ways:
a) remove the source of the conflict, by relinquishing or divesting the interest that creates the conflict, or reallocating the conflicting duties to another council official
b) have no involvement in the matter, by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in s.451(2) of the LG Act apply.[xxxv]
In the case of a non-pecuniary conflict of interests that is adjudged to be less than significant and does not require further action, you must still provide an explanation of why you consider that the conflict does not require further action in the circumstances.[xxxvi]
In the case of a member of staff of council, the decision on which option should be taken to manage a non-pecuniary conflict of interests must be made in consultation with your manager.[xxxvii]
Political donations exceeding $1,000
Matters before council involving political or campaign donors may give rise to a non-pecuniary conflict of interests.[xxxviii]
Councillors should take all reasonable steps to ascertain the source of any political contributions that directly benefit their election campaigns.[xxxix]
Where a councillor or the councillor’s “official agent” has received “political contributions” or “political donations”, as the case may be, within the meaning of the Election Funding Act 1981 exceeding $1,000 which directly benefit their campaign:
a) from a political or campaign donor or related entity in the previous four years; and
b) where the political or campaign donor or related entity has a matter before council,
then the councillor must declare a non-pecuniary conflict of interests, disclose the nature of the interest, and manage the conflict of interests in accordance with cl. 7.17(b).[xl]
Political contributions below $1,000, or political contributions to a registered political party or group by which a councillor is endorsed, may still give rise to a non-pecuniary conflict of interests. Councillors should determine whether or not such conflicts are significant and take the appropriate action to manage them.[xli]
Other business or employment
A member of staff of council considering outside employment or contract work that relates to the business of the council or that might conflict with your council duties must:
· notify and seek the approval of the general manager in writing[xlii]
· ensure that any outside employment or business engaged in will not conflict with one’s official duties, involve using confidential information or council resources obtained through one’s work with the council, require one to work while on council duty, or discredit or disadvantage the council.[xliii]
Personal dealings with council
When dealing with council in a personal capacity (eg, as a ratepayer, recipient of a council service or applicant for a consent granted by council), you must not expect or request preferential treatment in relation to any matter in which you have a private interest because of your position, and must avoid any action that could lead members of the public to believe that you are seeking preferential treatment.[xliv]
8 PERSONAL BENEFIT
Gifts and benefits
You must not seek or accept a bribe or other improper inducement, seek gifts or benefits of any kind, accept any gift or benefit that may create a sense of obligation on your part or may be perceived to be intended or likely to influence you in carrying out your public duty, accept any gift or benefit of more than token value, or accept an offer of money, regardless of the amount.[xlv]
A gift or benefit of more than token value that cannot reasonably be refused or returned must be disclosed promptly to your supervisor, the Mayor or the GM.[xlvi]
Improper and undue influence
You must not use your position to influence other council officials in the performance of their public or professional duties to obtain a private benefit for yourself or for somebody else,[xlvii] nor take advantage (or seek to take advantage) of your status or position with or of functions you perform for council in order to obtain a private benefit for yourself or for any other person or body.[xlviii]
9 RELATIONSHIP BETWEEN COUNCIL OFFICIALS
Obligations of councillors and administrators
The governing body (comprising the councilors) has the responsibility of directing and controlling the affairs of the council in accordance with the Act and is responsible for policy determinations, eg, those relating to industrial relations policy.[xlix]
Councillors or administrators must not (a) direct council staff other than by giving appropriate direction to the GM in the performance of council’s functions by way of council or committee resolution, or by the Mayor or administrator exercising their power under s.226 of the LG Act (see s.352 of that Act); (b) in any public or private forum, direct or influence or attempt to direct or influence, any other member of the staff of the council or a delegate of the council in the exercise of the functions of the member or delegate (see Sch 6A to the LG Act); (c) contact a member of the staff of the council on council related business unless in accordance with the policy and procedures governing the interaction of councillors and council staff that have been authorised by the council and the GM; (d) contact or issue instructions to any of council’s contractors or tenderers, including council’s legal advisers, unless by the Mayor or administrator exercising their power under section 226 of the Act. (This does not apply to council’s external auditors who, in the course of their work, may be provided with information by individual councillors.)[l]
Obligations of staff
Members of staff of council must give their attention to the business of council while on duty, ensure that their work is carried out efficiently, economically and effectively, carry out lawful directions given by any person having authority to give such directions, and give effect to the lawful decisions, policies, and procedures of the council, whether or not the staff member agrees with or approves of them.[li]
Obligations during meetings
You must act in accordance with council’s Code of Meeting Practice, if council has adopted one, and the Local Government (General) Regulation 2005 during council and committee meetings.[lii]
You must not engage in any of the following inappropriate interactions:
a) Councillors and administrators approaching staff and staff organisations to discuss individual staff matters and not broader industrial policy issues.
b) Council staff approaching councillors and administrators to discuss individual staff matters and not broader industrial policy issues.
c) Council staff refusing to give information that is available to other councillors to a particular councillor.
d) Councillors and administrators who have lodged a DA with council, discussing the matter with council staff in staff-only areas of the council.
e) Councillors and administrators being overbearing or threatening to council staff.
f) Councillors and administrators making personal attacks on council staff in a public forum.
g) Councillors and administrators directing or pressuring council staff in the performance of their work, or recommendations they should make.
h) Council staff providing ad hoc advice to councillors and administrators without recording or documenting the interaction as they would if the advice was provided to a member of the community.
i) Council staff meeting with developers alone AND outside office hours to discuss DAs or proposals.
j) Councillors attending on-site inspection meetings with lawyers and/or consultants engaged by council associated with current or proposed legal proceedings unless permitted to do so by council’s GM or, in the case of the Mayor or administrator, exercising their power under s.226 of the LG Act.[liii]
10 ACCESS TO INFORMATION AND COUNCIL RESOURCES
Councillor and administrator access to information
The GM must provide councillors and administrators with information sufficient to enable them to carry out their civic office functions.[liv]
Councillors and administrators to properly examine and consider information
Councillors and administrators must properly examine and consider all the information provided to them relating to matters that they are dealing with.[lv]
Refusal of access to documents
Where the GM and public officer determine to refuse access to a document sought by a councillor or administrator they must act reasonably. Reasons must be given if access is refused.[lvi]
Use of certain council information
In your capacity as a council official, you must only access council information needed for council business, and must not use that council information for private purposes.[lvii]
Use and security of confidential information
You must maintain the integrity and security of confidential documents or information in your possession, or for which you are responsible.[lviii] In addition, you must protect confidential information, only release confidential information if you have authority to do so, only use confidential information for the purpose it is intended to be used, not use confidential information gained through your official position for the purpose of securing a private benefit for yourself or for any other person, not use confidential information with the intention to cause harm or detriment to your council or any other person or body, and not disclose any information discussed during a confidential session of a council meeting.[lix]
You must comply with all relevantly applicable laws, etc, relating to the protection and proper use of personal information.[lx]
Use of council resources
You must use council resources ethically, effectively, efficiently and carefully in the course of your official duties, and must not use them for private purposes (except when supplied as part of a contract of employment) unless this use is lawfully authorised and proper payment is made where appropriate.[lxi]
Councillor access to council buildings
Councillors and administrators are entitled to have access to the council chamber, committee room, mayor’s office (subject to availability), councillors’ rooms, and public areas of council’s buildings during normal business hours and for meetings. Councillors and administrators needing access to these facilities at other times must obtain authority from the GM,[lxii] and must not enter staff-only areas of council buildings without the approval of the GM (or delegate) or as provided in the procedures governing the interaction of councillors and council staff.[lxiii]
11 REPORTING BREACHES
Any person, whether or not a council official, may make a complaint alleging a breach of the Code.[lxiv]
If a complaint under the Code is or could be a protected disclosure, you must ensure that in dealing with the complaint, you comply with the confidentiality provisions of the Protected Disclosures Act 1994 (NSW).[lxv]
You should report suspected breaches of the Code by councillors, members of staff of council (excluding the general manager) or delegates to the GM in writing.[lxvi] Where you believe that the GM has breached the Code, you should report the matter to the Mayor in writing.[lxvii]
PART 3: PROCEDURES
This Part of the Model Code contains the complaint handling procedures, complaint assessment criteria and the operating guidelines for the conduct review committee/reviewer, and should be used to guide the management of complaints about breaches of the Code.
12 COMPLAINT HANDLING PROCEDURES & SANCTIONS
Complaints about the conduct of councillors, members of staff of council, members of council committees and delegates of council should be addressed in writing to the GM.[lxviii] Complaints about the conduct of the GM should be addressed in writing to the Mayor.[lxix]
Complaint handling procedures – staff, delegate and council committee member conduct (excluding the general manager)
The GM deals with and determines complaints alleging breach of the Code regarding members of staff of council, delegates of council and/or members of council committees (other than councillors).[lxx]
Sanctions for staff depend on the severity, scale and importance of the breach and must be determined in accordance with any relevant industrial instruments or contracts.[lxxi]
Sanctions for delegates and/or members of council committees depend on the severity, scale and importance of the breach and may include censure, requiring the person to apologise to any person adversely affected by the breach, counseling, prosecution for any breach of the law, removing or restricting the person’s delegation, removing the person from membership of the relevant council committee, and revising any of council’s policies, procedures and/or the Code.[lxxii]
Complaint handling procedures – councillor conduct
The GM assesses complaints alleging breaches of the Code by councillors in accordance with the assessment criteria provided at Section 13 of the Code in order to determine whether to refer the matter to the conduct review committee/reviewer.[lxxiii]
Complaint handling procedures – general manager conduct
The Mayor assesses complaints alleging breaches of the Code by the GM in accordance with the assessment criteria provided at Section 13 of the Code in order to determine whether to refer the matter to the conduct review committee/reviewer.[lxxiv]
Conduct review committee/reviewer
Council must resolve to appoint persons independent of council to comprise the members of a conduct review committee and/or to act as sole conduct reviewers.[lxxv] The members of the conduct review committee and/or the persons acting as sole conduct reviewers should be appropriately qualified persons of high standing in the community.[lxxvi]
The conduct review committee, members of such committee and sole conduct reviewers may act in that role for more than one council.[lxxvii]
The conduct review committee/reviewer will operate in accordance with the operating guidelines at Section 14 of the Code,[lxxviii] and will report its findings and any recommendations to council only when it has completed its deliberations.[lxxix]
Where the council finds that a councillor or general manager has breached the code, it may decide by resolution to censure the councillor for misbehaviour in accordance with s.440G of the LG Act, require the councillor or general manager to apologise to any person adversely affected by the breach, counsel the councillor or general manager, make public findings of inappropriate conduct, or prosecute for any breach of law.[lxxx]
Under s.440G of the LG Act a council may by resolution at a meeting formally censure a councillor for misbehaviour.[lxxxi]
The 2 grounds for suspension action, which can only take place after proper censure and prior expulsion from meetings,[lxxxii] are as follows;
· where the councillor’s behaviour has been disruptive over a period, involving more than 1 incident of misbehaviour during that period, and the pattern of behaviour during that period is of such a sufficiently serious nature as to warrant the councillor’s suspension,[lxxxiii] or
· where the councillor’s behaviour has involved 1 incident of misbehavior that is of such a sufficiently serious nature as to warrant the councillor’s suspension.[lxxxiv]
Under s.440H of the LG Act, the process for the suspension of a councillor from civic office can be initiated by a request made by council to the Director General of the Department of Local Government.[lxxxv]
Reporting on complaints
The general manager must report annually to council on code of conduct complaints. This report should include, as a minimum, a summary of the number of complaints received, the nature of the issues raised by complainants, and outcomes of complaints.[lxxxvi]
13 COMPLAINT ASSESSMENT CRITERIA
In section 13, the Model Code prescribes a set of criteria that must be taken into account in determining how to deal with a complaint.
The complaint assessment criteria are to be used by the GM, the Mayor and the conduct review committee/sole conduct reviewer.[lxxxvii]
If a matter is referred to the conduct review committee/reviewer, then the conduct review committee/reviewer should use the same complaint assessment criteria for its initial assessment of the complaint and determination of the course to follow in dealing with the complaint.[lxxxviii]
14 CONDUCT REVIEW COMMITTEE/REVIEWER OPERATING GUIDELINES
Jurisdiction of the conduct review committee/reviewer
The complaint handling function of the conduct review committee/reviewer is limited to consideration of, making enquiries into and reporting on complaints made under cl.11.1, about councillors and/or the GM.[lxxxix]
Role of the general manager and Mayor
The GM, or in the case of complaints about the GM, the Mayor, will provide procedural advice when requested, ensure adequate resources are provided, including providing secretariat support, and so forth.[xc]
The GM or Mayor may only attend conduct review committee meetings when invited and then in an advisory capacity only. Adequate resources must be provided to ensure that the committee/conduct reviewer can operate effectively.
Composition of the conduct review committee
The council must appoint 3 or more persons to act in the role as members of the conduct review committee.[xci]
Quorum of the conduct review committee
A quorum for a meeting of the conduct review committee is the majority of the members of the conduct review committee.[xcii]
Voting of the conduct review committee
Each member of the conduct review committee has one vote. In the event of an equality of votes, the chairperson has a casting vote.[xciii]
Procedures of the conduct review committee/reviewer
The conduct review committee/reviewer will conduct business in the absence of the public, and shall determine the procedures governing the conduct of its meetings provided such procedures are consistent with these operating guidelines.[xciv]
In conducting enquiries, the conduct review committee/reviewer or the person engaged to do so should follow the rules of procedural fairness (also known as the “rules of natural justice”).[xcv]
There are 3 such rules: the hearing rule, the bias rule, and the probative evidence rule.
The hearing rule requires that a person be properly and fairly heard before any right, interest or legitimate expectation of some benefit enjoyed by or otherwise available to the person is affected.
The bias rule is designed to ensure that there be no reasonable apprehension of bias (partiality) on the part of those involved in the decision making process.
The probative evidence rule requires that an administrative decision be based upon logically probative material, that is, facts relevant to the issues to be decided.
Clause 14.7 sets out what must be done in order to satisfy those rules. More may be required on the facts of a particular case.
Natural Justice ... in simple terms
Complaint handling procedures
In addition to complying with these operating guidelines, the conduct review committee/reviewer will ensure it deals with all complaints in accordance with the provisions of Section 12 of the Code.[xcvi]
Findings and recommendations of the conduct review committee/reviewer
Where the conduct review committee/sole conduct reviewer makes enquiries or causes enquiries to be made into a matter, then it must report its findings in writing to the council on completion of these deliberations. The report should be a summary of the enquiries undertaken while providing sufficient information for the council to make a determination as to whether the councillor or the general manager has breached the code of conduct.
Where the conduct review committee/reviewer determines, in its view that the conduct referred to it comprises a breach of the Code it may, in its report to the council, make recommendations, that the council take any of the following actions: censure the councillor for misbehavior, require the councillor or GM to apologise to any person adversely affected by the breach, counsel the councillor or GM, make public findings of inappropriate conduct, prosecute for any breach of the law, or revise any of council’s policies, procedures and/or the Code.[xcvii]
Before making any such recommendations, the conduct review committee/reviewer shall have regard to the various matters for consideration listed in cl.14.9.
Amendment of the operating guidelines
The conduct review committee/reviewer guidelines may be added to and any additional requirements may be further amended or repealed by resolution of the council.[xcviii]
[i] See s.440(1), LG Act.
[ii] ISBN 1 920766 72 3.
[iii] See s.440(3), LG Act.
[iv] See s.440(4), LG Act.
[v] See s.440(5), LG Act.
[vi] Cf. s.439, LG Act.
[vii] See cll.4.1-4.8, Model Code.
[viii] By virtue of s.439(1) of the LG Act a councillor, a member of staff of council and a delegate of council must act honestly in carrying out his or her functions under that Act. The word “honesty” [from the Latin, honestas, “oneness”] means oneness with the truth, the facts. Facts are occurrences in space and time, that is, reality. Thus, anything that is not a fact, or not in accordance with the facts, is dishonest.
[ix] See cl.5.1, Model Code.
[x] See cl.5.2, Model Code.
[xi] See cl.5.3, Model Code.
[xii] See cl.5.4, Model Code.
[xiii] See, relevantly, s.9(1)(b) and (3), ICAC Act.
[xiv] See cll.6.1 and 6.2, Model Code.
[xv] See cl.6.3, Model Code.
[xvi] See cl.6.4, Model Code.
[xvii] See cl.6.5, Model Code.
[xviii] See cl.6.6, Model Code.
[xix] See cl.6.7, Model Code.
[xx] See cl.6.8, Model Code.
[xxi] See cl.6.9, Model Code.
[xxii] See cl.7.1, Model Code.
[xxiii] See cl.7.2, Model Code.
[xxiv] See cl.7.2, Model Code.
[xxv] See cl.7.3, Model Code.
[xxvi] See cl.7.4, Model Code.
[xxvii] See s.442, LG Act, and cll.7.5 and 7.6, Model Code.
[xxviii] See cl.7.7, Model Code.
[xxix] See cl.7.10, Model Code.
[xxx] See cl.7.12, Model Code.
[xxxi] See cl.7.13, Model Code.
[xxxii] See cl.7.14, Model Code.
[xxxiii] See cl.7.15, Model Code.
[xxxiv] See cl.7.16, Model Code.
[xxxv] See cl.7.17, Model Code. However, despite clause 7.17(b), a councillor who has disclosed that a significant non-pecuniary conflict of interests exists may participate in a decision to delegate council’s decision-making role to council staff, or appoint another person or body to make the decision in accordance with the law.
[xxxvi] See cl.7.18, Model Code.
[xxxvii] See cl.7.19, Model Code.
[xxxviii] See cl.7.21, Model Code.
[xxxix] See cl.7.22, Model Code.
[xl] See cl.7.23, Model Code.
[xli] See cl.12.24, Model Code.
[xlii] See cl.7.26, Model Code. See also s.353, LG Act.
[xliii] See cl.7.27, Model Code.
[xliv] See cl.7.28, Model Code.
[xlv] See cl.8.3, Model Code. See cl.8.1 re token gifts and benefits, and cl.8.2 re gifts and benefits of value.
[xlvi] See cl.8.4, Model Code. See also cll.8.5 and 8.6 as to further obligations.
[xlvii] See cl.8.7, Model Code.
[xlviii] See cl.8.8, Model Code.
[xlix] See cl.9.1, Model Code. See also ss.222 and 223, LG Act.
[l] See cl.9.2, Model Code.
[li] See cl.9.4, Model Code. See cl.9.3 of the Model Code (and s.335 of the LG Act) re the GM.
[lii] See cl.9.5, Model Code. See also cl.9.6 re the need to show respect to the Chair, etc.
[liii] See cl.9.7, Model Code. It is appropriate that staff and staff organisations have discussions with councillors in relation to matters of industrial policy: cl.9.8, Model Code.
[liv] See cl.10.2, Model Code.
[lv] See cl.10.6, Model Code.
[lvi] See cl.10.7, Model Code.
[lvii] See cl.10.8, Model Code.
[lviii] See cl.10.9, Model Code.
[lix] See cl.10.10, Model Code.
[lx] See cl.10.11, Model Code.
[lxi] See cl.10.12, Model Code. See also cll.10.14-10.18 as to other obligations relating to the proper use of council resources.
[lxii] See cl.10.19, Model Code.
[lxiii] See cl.10.20, Model Code. See also cl.10.21, Model Code, as to councilor/administrator conduct within staff areas.
[lxiv] See cl.11.1, Model Code.
[lxv] See cl.11.5, Model Code, and s.22, Protected Disclosures Act 1994 (NSW).
[lxvi] See cl.11.6, Model Code.
[lxvii] See cl.11.7, Model Code. See cl.11.8, Model Code, with respect to the making of a complaint in relation to the conduct of an administrator.
[lxviii] See cl.12.1, Model Code.
[lxix] See cl.12.2, Model Code.
[lxx] See cl.12.3, Model Code.
[lxxi] See cl.12.6, Model Code.
[lxxii] See cl.12.7, Model Code.
[lxxiii] See cl.12.8, Model Code.
[lxxiv] See cl.12.10, Model Code.
[lxxv] See cl.12.12, Model Code.
[lxxvi] See cl.12.13, Model Code.
[lxxvii] See cl.12.14, Model Code.
[lxxviii] See cl.12.17, Model Code.
[lxxix] See cl.12.23, Model Code.
[lxxx] See cl.12.25, Model Code. A councillor found in breach of the Code must comply with any council resolution requiring the councillor to take action as a result of that breach: cl.6.4, Model Code.
[lxxxi] See cl.12.26, Model Code.
[lxxxii] See cll.12.29 and 12.31, respectively, of the Model Code.
[lxxxiii] See cl.12.28, Model Code.
[lxxxiv] See cl.12.30, Model Code.
[lxxxv] See cl.12.27, Model Code. Under s.440H of the LG Act, the process for the suspension of a councillor can also be initiated by the Department of Local Government, the ICAC or the NSW Ombudsman.
[lxxxvi] See cl.12.33, Model Code.
[lxxxvii] See cl.13.1, Model Code.
[lxxxviii] See cl.13.3, Model Code.
[lxxxix] See cl.14.1, Model Code.
[xc] See cl.14.2, Model Code.
[xci] See cl.14.3, Model Code.
[xcii] See cl.14.4, Model Code.
[xciii] See cl.14.5, Model Code.
[xciv] See cl.14.6, Model Code.
[xcv] See cl.14.7, Model Code.
[xcvi] See cl.14.8, Model Code.
[xcvii] See cl.14.9, Model Code.
[xcviii] See cl.14.10, Model Code.