|
Hornsby Shire Council |
Attachment to Report
No. GM12/08 Page 0 |
October
2008
SUMMARY OF THE
PROVISIONS OF
THE MODEL CODE OF CONDUCT
FOR LOCAL COUNCILS IN NSW
Disclaimer
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.
General Introduction
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.
1 INTRODUCTION
Councillors, administrators,
members of staff of council, independent conduct reviewers, members of council
committees including the conduct review committee and delegates of the council
must comply with the applicable provisions of council’s code of conduct in
carrying out their functions as council officials. It is the personal responsibility
of council officials to comply with the standards in the code and regularly
review their personal circumstances with this in mind. Council contractors and
volunteers will also be required to observe the relevant provisions of
council’s code of conduct. –
Introduction, Model Code.
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.
2 DEFINITIONS
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
NOTE. A councillor
commits an act of disorder if the
councillor, at a meeting of a council or a committee of a council:
(a) contravenes the LG Act or
any regulation in force under that Act, or
(b) assaults or
threatens to assault another councillor or person present at the meeting, or
(c) moves or
attempts to move a motion or an amendment that has an unlawful purpose or that
deals with a matter that is outside the jurisdiction of the council or
committee, or addresses or attempts to address the council or committee on such
a motion, amendment or matter, or
(d) insults or
makes personal reflections on or imputes improper motives to any other
councillor, or
(e) says or does
anything that is inconsistent with maintaining order at the meeting or is
likely to bring the council or committee into contempt.
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.
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.
"Misbehaviour" of a councillor is defined to mean any of the
following:
(a) a contravention by the
councillor of the LG Act or the regulations made under that Act,
(b) a failure by
the councillor to comply with an applicable requirement of a code of conduct as
required under s. 440 (5) of the LG Act,
(c) an act of
disorder committed by the councillor at a meeting of the council or a committee
of the council,
but does not include a
contravention of the pecuniary interest disclosure requirements of Pt 2 of Ch
14 of the LG 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]
· Integrity
· Leadership
· Selflessness
· Impartiality
· Accountability
· Openness
· Honesty[viii]
· Respect
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]
Seeking advice
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
General
Conduct
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]
Development
decisions
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
PECUNIARY
“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”.
REASONABLE
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.
LIKELIHOOD
The ordinary meaning of the word
“likelihood” is “probability”
AN OBJECTIVE TEST.
EXPECTATION
“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.
APPRECIABLE
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.
TOO REMOTE
REFERS TO LEGAL CAUSATION ... NOT
GEOGRAPHICAL LOCATION OR DISTANCE.
TOO INSIGNIFICANT
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
In the case of a conflict that conflict’s
with your public duty, the interest must be disclosed fully and in writing.[xxxi]
Disclosures made at meetings must be recorded in the minutes.[xxxii]
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]
Inappropriate interactions
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]
Personal information
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]
Sanctions
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]
Councillor misbehaviour
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]
Procedural
fairness
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
The critical question is not whether the
rules of procedural fairness (natural justice) apply but what does the duty to act fairly
require in the circumstances of the particular case? It has been said that “the contents of
natural justice range from a full-blown trial into nothingness”, for the rules
of procedural fairness have a flexible quality and are “chameleon-like”. As to
the legal requirements of a “fair hearing”:
1. The requirements depend on the
circumstances of the case, the nature of the inquiry, the rules under which the
tribunal is acting, the subject-matter that is being dealt with, etc.
2. The giving of notice (containing
sufficient information) is the minimum content of the rules of procedural
fairness. The hearing will not be a fair one if the person affected is not told
the case against him or her.
3. The decision makers need not quote
“chapter and verse”. An outline of the alleged breach will usually suffice. However,
sufficient information must be given and must not be vague or general but
complete (even if concisely worded) and in intelligible language.
4. The person concerned must be given a
reasonable opportunity of presenting his or her case.
5. Ordinarily, under the general law, a
hearing does not have to be oral. An
opportunity to make written submissions will usually be sufficient, but a
reasonable time must be given for the making of any written submissions and
representations. However, the Section 14
guidelines of the Code expressly provide that the conduct review
committee/reviewer must provide the
person the subject of the complaint with an opportunity
to address the conduct review committee/reviewer in person.
6. The decision makers must act in good
faith and listen fairly and impartially to the other party. In particular, an
opportunity must be given to the person likely to be affected to correct or
contradict any relevant statement prejudicial to that person. Further, where it
is proposed to make adverse comments about the person in a report or submission
recommending some adverse or potentially adverse action, the person must first
be given the opportunity to comment on, or “rebut”, the allegation, even more
so where it is intended to rely upon some new or additional material in respect
of which the person affected has not had an opportunity to respond.
7. Even where an oral hearing is given, the
person ought to be given a fair opportunity to respond to any adverse finding
or conclusion in respect of which the person had not previously been afforded
such an opportunity There is no absolute entitlement to legal representation in
administrative enquiries. As regards meetings of the conduct review committee/reviewer,
the person subject of the complaint is entitled
to bring a support person or legal adviser. That person may only act in an
advisory and support role to the person affected, and cannot speak on behalf of
the subject person.
8. There is also no general right in
administrative hearings to cross-examine other witnesses, or to be given
transcripts of evidence, but sufficient information as to the case against the
person the subject of the hearing must still be given to him or her.
9. Findings of fact, and the drawing of
conclusions and inferences from objective facts, must be properly made. Only
facts relevant to the critical issues to be decided may be relied upon, as
opposed to prejudice, speculation and hearsay.
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]