Attachments of Ordinary Council Meeting

Hornsby Shire Council

Attachment to Report No. GM12/08 Page 2

Northern Sydney Regional Organisation of Councils

REGIONAL CONDUCT REVIEW
COMMITTEE/SOLE REVIEWER
TOOL KIT

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,

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 AFFAIRS BY AN ORDINARY RESPONSIBLE PERSON

· 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 (2^nd 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]}

Hornsby Shire Council

Attachment to Report No. GM12/08 Page 29

Northern Sydney Regional Organisation of Councils

REGIONAL CONDUCT REVIEW
COMMITTEE/SOLE REVIEWER
TOOL KIT

Standard Forms

October 2008

STANDARD LETTER TO THE COMPLAINANT

Dear …,

RE: COMPLAINT CONCERNING …

I refer to your complaint alleging a breach of the …………. [INSERT NAME OF COUNCIL] Code of Conduct by …………. [INSERT NAME OF PERSON SUBJECT OF THE COMPLAINT] of …………. [INSERT NAME OF COUNCIL].

Your complaint was referred to the NSROC Regional Conduct Review Committee by …………. [INSERT NAME OF GENERAL MANAGER] of …………. [INSERT NAME OF COUNCIL] on …………. [INSERT DATE].

The members of the Conduct Review Committee which enquired into the complaint were …………. [INSERT NAMES OF MEMBERS OF COMMITTEE].

The Conduct Review Committee has now completed its deliberations into the complaint and has made the following findings:

………….. [INSERT FINDINGS].

The reasons for those findings are as follows:

………….. [INSERT REASONS FOR FINDINGS].

Yours faithfully,

Chairperson

STANDARD LETTER TO THE PERSON SUBJECT OF THE COMPLAINT

Dear …,

RE: COMPLAINT CONCERNING …

I refer to the complaint alleging a breach by you of the …………. [INSERT NAME OF COUNCIL] Code of Conduct.

The complaint was referred to the NSROC Regional Conduct Review Committee by …………. [INSERT NAME OF GENERAL MANAGER] of …………. [INSERT NAME OF COUNCIL] on …………. [INSERT DATE].

The members of the Conduct Review Committee which enquired into the complaint were …………. [INSERT NAMES OF MEMBERS OF COMMITTEE].

The Conduct Review Committee has now completed its deliberations into the complaint and has made the following findings:

………….. [INSERT FINDINGS].

The reasons for those findings are as follows:

………….. [INSERT REASONS FOR FINDINGS].

Yours faithfully,

Chairperson

NOTES.

1. Where the conduct review committee makes findings, the committee must report its findings, and the reasons for those findings, in writing to the council, the complainant and the person subject of the complaint.

2. This letter will need to be altered where there is a sole conduct reviewer and also where the Committee/reviewer determines not to make enquiries into the complaint, in which case the complainant must be given the reason/s in writing as provided in cl.13.1 of the Model Code of Conduct.

3. The letter to Council should enclose a copy of the report, which should also contain recommendations. The latter need not, and ought not, be included in the letters to the complainant and the person subject of the complaint.

STANDARD LETTER TO THE COMPLAINANT AT THE PRELIMINARY STAGE

Dear …,

RE: COMPLAINT CONCERNING …

Your complaint has been referred to the NSROC Regional Conduct Review Committee by …………. [INSERT NAME OF GENERAL MANAGER] of …………. [INSERT NAME OF COUNCIL] on …………. [INSERT DATE].

The Conduct Review Committee is responsible for making enquiries into complaints made alleging breaches of the code of conduct by Councillors or the General Manager of a member Council of NSROC and may determine either to:

a) not make enquiries into the complaint and give you the reason/s in writing, and those reasons may include, but are not limited to, the fact that the complaint is trivial, frivolous, vexatious or not made in good faith, or

b) resolve the complaint by use of alternative and appropriate strategies such as, but not limited to, mediation, making recommendations to the General Manager, informal discussion or negotiation and give you advice on the resolution of the matter in writing, or

c) make enquiries into the complaint, or

d) engage another appropriately qualified person to make enquiries into the complaint, or

e) not make enquiries or discontinue making enquiries where it becomes evident that the matter should be referred to another body or person, and refer the matter to that body or person as well as advising you in writing of the same.

In the event that the Conduct Review Committee conducts enquiries or causes enquiries to be made the Committee or the person engaged to do so is required to follow the rules of procedural fairness and must:

· provide the person the subject of the complaint with a reasonable opportunity to respond to the substance of the allegation,

· provide the person the subject of the complaint with an opportunity to place before the Committee or person undertaking the enquiry any information the person considers relevant to the enquiry,

· provide the person the subject of the complaint with an opportunity to address the Committee in person,

· hear all parties to a matter and consider submissions before deciding the substance of any complaint,

· make reasonable enquiries before making any recommendations,

· act fairly and without prejudice or bias,

· ensure that no person decides a case in which they have a conflict of interests, and

· conduct the enquiries without undue delay.

Where the Conduct Review Committee conducts enquiries or causes enquiries to be conducted, the Conduct Review Committee must make findings on whether, in its view, the conduct referred to it comprises a breach of the Code of Conduct.

Where the Conduct Review Committee makes findings, the Committee:

· may recommend that the Council take any actions provided for in the Code of Conduct that it considers reasonable in the circumstances, and

· will report its findings, and the reasons for those findings, in writing to the Council, yourself and the person subject of the complaint.

The Conduct Review Committee will report its findings and any recommendations to the Council only when it has completed its deliberations. When making any report to the Council, the Committee is mindful that there may be a need to protect the identity of the person making the complaint.

The whole process outlined above may take up to 2 months or more, depending upon the complexity of the matter, but you may rest assured that the matter will be dealt with as expeditiously as possible.

For your information attached are salient excerpts from the Model Code of Conduct. [ATTACH A COPY OF ALL OF PART 3 OF THE MODEL CODE OF CONDUCT].

I will be in touch with you as soon as the Committee has made a determination as to how to deal with the complaint.

In the meantime, should you have any queries or require any further information please do not hesitate to contact me on …………… [INSERT TELEPHONE NUMBER].

Yours faithfully,

Chairperson

Attach.

STANDARD LETTER TO THE PERSON SUBJECT OF THE COMPLAINT
AT THE PRELIMINARY STAGE

Dear …,

RE: COMPLAINT CONCERNING …

A complaint has been made alleging a breach by you of the …………. [INSERT NAME OF COUNCIL] Code of Conduct. The substance of the complaint is as follows:

……………. [INSERT A SHORT BUT OTHERWISE COMPLETE DESCRIPTION OF THE ALLEGED BREACH].

The complaint has been referred to the NSROC Regional Conduct Review Committee by …………. [INSERT NAME OF GENERAL MANAGER] of …………. [INSERT NAME OF COUNCIL] on …………. [INSERT DATE].

a) not make enquiries into the complaint and give the complainant the reason/s in writing, and those reasons may include, but are not limited to, the fact that the complaint is trivial, frivolous, vexatious or not made in good faith, or

c) make enquiries into the complaint, or

d) engage another appropriately qualified person to make enquiries into the complaint, or

· provide you with a reasonable opportunity to respond to the substance of the allegation,

· provide you with an opportunity to place before the Committee or person undertaking the enquiry any information the person considers relevant to the enquiry,

· provide you with an opportunity to address the Committee in person,

· hear all parties to a matter and consider submissions before deciding the substance of any complaint,

· make reasonable enquiries before making any recommendations,

· act fairly and without prejudice or bias,

· ensure that no person decides a case in which they have a conflict of interests, and

· conduct the enquiries without undue delay.

Where the Conduct Review Committee makes findings, the Committee

· may recommend that the Council take any actions provided for in the Code of Conduct that it considers reasonable in the circumstances, and

· will report its findings, and the reasons for those findings, in writing to the Council, the complainant and yourself.

For your information attached are salient excerpts from the Model Code of Conduct. [ATTACH A COPY OF ALL OF PART 3 OF THE MODEL CODE OF CONDUCT].

I will be in touch with you as soon as the Committee has made a determination as to how to deal with the complaint.

In the meantime, should you have any queries or require any further information please do not hesitate to contact me on …………… [INSERT TELEPHONE NUMBER].

Yours faithfully,

Chairperson

Attach.

STANDARD LETTER TO THE PERSON SUBJECT OF THE COMPLAINT
AT THE ENQUIRIES STAGE

Dear …,

RE: COMPLAINT CONCERNING …

I refer to my letter of …………. [INSERT DTAE OF PREVIOUS LETTER] relating to the complaint that has been made alleging a breach by you of the …………. [INSERT NAME OF COUNCIL] Code of Conduct, and which has been referred to the NSROC Regional Conduct Review Committee by …………. [INSERT NAME OF GENERAL MANAGER] of …………. [INSERT NAME OF COUNCIL].

As previously advised, the substance of the complaint is as follows:

……………. [INSERT A SHORT BUT OTHERWISE COMPLETE DESCRIPTION OF THE ALLEGED BREACH].

The Conduct Review Committee has determined to make enquiries into the complaint.

As previously indicated, where the Conduct Review Committee conducts enquiries the Committee is required to follow the rules of procedural fairness and must:

· provide you with a reasonable opportunity to respond to the substance of the allegation,

· provide you with an opportunity to place before the Committee or person undertaking the enquiry any information the person considers relevant to the enquiry,

· provide you with an opportunity to address the Committee in person,

· hear all parties to a matter and consider submissions before deciding the substance of any complaint,

· make reasonable enquiries before making any recommendations,

· act fairly and without prejudice or bias,

· ensure that no person decides a case in which they have a conflict of interests, and

· conduct the enquiries without undue delay.

You are now invited to respond to the substance of the allegation by one or other or both of the following means:

· in writing, in which case anything you may wish to place before the Committee should reach me no later than ……. [INSERT DATE THAT IS REASONABLE IN ALL THE CIRCUMSTANCES, SAY, IN 21 OR 28 DAYS TIME]

· orally, that is, by addressing the Committee in person.

In the event that you elect to meet with the Conduct Review Committee, you are entitled to bring a support person or legal adviser. However, that person may only act in an advisory and support role to yourself, and is not allowed to speak on your behalf.

If you would like to address the Committee in person would you kindly advise me of your desire so to do by no later than ……. [INSERT DATE THAT IS REASONABLE IN ALL THE CIRCUMSTANCES, SAY, IN 7 DAYS TIME]. If you advise that you desire to address the Committee in person, I will write back to you as soon as practicable thereafter advising of the date of the hearing.

If I do not hear from you by the above mentioned date I will assume that you do not wish to address the Committee, and the Committee will proceed to deal with the matter in accordance with the Code of Conduct in the manner previously advised.

In the meantime, should you have any queries or require any further information please do not hesitate to contact me on …………… [INSERT TELEPHONE NUMBER].

Yours faithfully,

Chairperson

MINUTES OF NSROC REGIONAL CONDUCT REVIEW COMMITTEE MEETING HELD ON ……………………. [INSERT DATE]

NAME OF COUNCIL:

……………………………………………………………………

NAME OF COUNCILLOR/GENERAL MANAGER THE SUBJECT OF COMPLAINT:

………………………………………………………………………

PRESENT:

APOLOGIES:

Meeting commenced: …

1. Introduction by Chairperson

The Chairperson thanked everyone for their attendance.

2. Adoption of Minutes from the meeting of …………..

3. Business Arising from Previous Minutes

4. New Business

5. Correspondence

6. Next meeting: ……………

Meeting closed at …………….

……………………..
Chair
Date: …….

NSROC REGIONAL CONDUCT REVIEW COMMITTEE/REVIEWER
REPORT TO ………………….. COUNCIL

NAME OF COUNCIL: ………………………………………………………………………………………………………

NAME OF COUNCILLOR/GENERAL MANAGER THE SUBJECT OF COMPLAINT:

………………………………………………………………………………………………………

NAMES OF MEMBERS OF CONDUCT REVIEW COMMITTE/NAME OF REVIEWER:

………………………………………………………………………………………………………

DESCRIPTION OF THE COMPLAINT ALLEGING A BREACH OF THE CODE OF CONDUCT:

………………………………………………………………………………………………………

DATE REFERRED TO REGIONAL CONDUCT REVIEW COMMITTEE/REVIEWER:

………………………………………………………………………………………………………

PROCEDURAL HISTORY:

………………………………………………………………………………………………………

ISSUES FOR DETEMINATION:

………………………………………………………………………………………………………

MEETING DATES (WITH NAMES OF PERSONS IN ATTENDNACE):

………………………………………………………………………………………………………

FACTUAL BACKGROUND AND DETAILS OF ENQUIRIES MADE:

………………………………………………………………………………………………………

NOTE. The conduct review committee/reviewer may determine not to make enquiries into the complaint and give the complainant the reason/s in writing as provided in clause 13.1 of the Model Code of conduct (and those reasons may include, but are not limited to, the fact that the complaint is trivial, frivolous, vexatious or not made in good faith), or may resolve the complaint by use of alternative and appropriate strategies such as, but not limited to, mediation, making recommendations to the general manager, informal discussion or negotiation and give the complainant advice on the resolution of the matter in writing, or engage another appropriately qualified person to make enquiries into the complaint, or not make enquiries or discontinue making enquiries where it becomes evident that the matter should be referred to another body or person, and refer the matter to that body or person as well as advising the complainant in writing. (Clause 12.19, Model Code of Conduct.)

NAMES OF WITNESSES AND OTHER PERSONS INTERVIEWED/QUESTIONED:

………………………………………………………………………………………………………

FINDINGS OF MATERIAL FACT:

………………………………………………………………………………………………………

REASONS FOR FINDINGS OF MATERIAL FACT:

………………………………………………………………………………………………………

RECOMMENDATIONS:

………………………………………………………………………………………………………

NOTE. Where the conduct review committee/reviewer determines, in its view that the conduct referred to it comprises a breach of this code of conduct it may, in its report to the Council, make recommendations, that the Council take any of the following actions:

a) censure the councillor for misbehaviour

b) require the councillor or general manager to apologise to any person adversely affected by the breach

c) counsel the councillor or general manager

d) make public findings of inappropriate conduct

e) prosecute for any breach of the law

f) revise any of council’s policies, procedures and/or the code of conduct. (Clause 14.9, Model Code of Conduct.)

REASONS FOR RECOMMENDATIONS:
………………………………………………………………………………………………………

………………………………………………………………………………………………………

VOTING: Unanimous / By majority*
NOTE. If the vote on a matter is not unanimous, then this needs to be noted in any report to Council on its findings. (See clause 14.5, Model Code of Conduct.)

SIGNED:

………………………………………………………………………………………………………

DATE OF REPORT: ………………………….

Hornsby Shire Council

Attachment to Report No. CC108/08 Page 51

1. To facilitate timely public access to documents held by Council.

Policy Statement:

1. Members of the public may inspect, free of charge, the current version of the documents listed in Section 12(1) of the Local Government Act.

2. Members of the public may inspect, free of charge, preceding versions of the documents listed in Section 12(1) of the Local Government Act, if those versions are reasonably accessible.

3. Members of the public may inspect any other Council documents free of charge, except:-

a) Where access to the document would, on balance, be contrary to the public interest (refer to Paragraph 4 of this Policy);

b) Any part of a document dealing with personnel matters concerning particular individuals other than Councillors;

c) Any part of a document dealing with the personal hardship of any resident, ratepayer, or other person;

d) Any part of a document dealing with trade secrets;

e) Information which would, if disclosed, prejudice the maintenance of law;

f) Matters affecting the security of the Council, Councillors, Council staff or Council property;

g) Any part of a document dealing with a matter, the disclosure of which, would constitute an offence against an Act or found an action for breach of confidence;

h) Plans and specifications for any residential parts of a building, other than plans that merely show its height and its external configuration in relation to the site on which it is erected, except where the applicant is the owner or the owner’s consent has been obtained to view the plans and specifications;

i) Commercial information of a confidential nature which would, if disclosed, be likely to prejudice the commercial position of the person who supplied it; confer a commercial advantage on a competitor of the Council; or to reveal a trade secret;

j) Information which would, if disclosed, confer a commercial advantage on a person with whom the Council is conducting, (or proposes to conduct) business;

k) Any part of a document that contains matter that would be privileged from production in legal proceedings on the ground of legal professional privilege.

4. For the purposes of this policy Council has determined that it would, on balance, be contrary to the public interest to allow access to the following:

a) The name and address of a person contained in a council document, where that person has specifically requested that such details not be released, and where the Public Officer, following consultation with that person, has determined that the release of the details would be contrary to the public interest. (NB: where the name and address of a person is withheld, the content of the document may still be made available.)

b) Documents providing commercial information which, in the opinion of Council’s Public Officer, if released could have an unreasonable adverse effect on a person or organisation, may jeopardise Council’s position in any future negotiations, or may jeopardise Council’s ability to obtain such information in the future.

c) Documents containing information which, in the opinion of Council’s Public Officer, if released could jeopardise Council’s position in relation to the negotiation of an insurance claim.

d) Tenders and expressions of interest lodged with Council and evaluation documentation, except so much of the information as is required to be made available under Part 7 of the Local Government (General) Regulations 2005; i.e. the name and amount of the successful tenderer.

e) The name and address of property owners and property sales information except where; the property owner is the person requesting the information; an adjoining owner is requesting the information for fencing or other purposes allowed by statute; the information is contained on a public register which Council is required to maintain and make available for inspection in accordance with the Privacy and Personal Information Protection Act; the information is given out in the course of processing an application before Council; the information is required by another government agency to carry out a legitimate function of that agency; the information is obtained by inspecting a Council document under this Policy.

f) Other documents the release of which, in the opinion of Council’s Public Officer, would, on balance, be contrary to the public interest.

Where access to a document is restricted in accordance with Paragraphs 3 and 4 of this Policy, the applicant will be advised in writing of the nature of the restricted document/s and the reason for the restriction.

5. Where applications from individuals or groups under this Policy are considered to be excessive, or where the processing of applications would cause an unreasonable diversion of Council resources, Council may place specific limits on dealing with such applications. In this regard, the demands of responding to requests may be considered excessive if:

a) Access to more than ten single electronic documents or two single hard copy file parts is requested.

b) More than three Document Access Applications in a three month period is lodged by an individual or group.

Any rejection of Document Access Applications in accordance with the above may be the subject of an appeal to the General Manager or his delegate.

6. Refusal to process applications under this Policy does not prevent the applicant from seeking access under the Freedom of Information Act (see Section 16 of this Policy)

7. The processing time service goal for Document Access Applications is to be less than the time allowed for determination of an application under the Freedom of Information Act (currently 21 days).

8. Copies of documents are available on request at the current copying charge except for the following documents, which cannot be copied:-.

a) The residential roll of electors;

b) The information sheets of candidates for election;

c) Building certificates, unless the consent of the owner of the building is obtained;

d) Bulk property information such as development consent registers, sales registers, etc unless the information is required by a government agency for statistical or other purposes consistent with the legitimate functions of that agency.

9. Applicants may not alter a document or file in any way. However, an applicant may request that a document containing their personal information be altered in accordance with Section 15 of the Privacy and Personal Information Protection Act, 1998 or Division 4 of the Health Records and Information Protection Act.

10. Fees applicable to this policy shall be determined as part of the fees and charges for each year.

11. Where Council invites or requests any person or organisation to provide information to Council including applications, submissions, comments, complaints or objections, the person or organisation will be advised of the existence of this Policy, the purpose for which the information is being collected by Council and the possibility that the information they provide to Council may be made available to a third party, subject to the public interest test as outlined in Clause 4 a) of this Policy. Council will also provide relevant details of this policy in the form of a regular advertisement in local newspapers.

12. Access to documents will be in accordance with relevant Council procedures.

13. Council will review reasons for restrictions to access documents every three months in the form of a report to Council where required.

14. Nothing in this policy requires Council to retain documents for any period beyond that specified in the General Records Disposal Schedule for Local Government.

Other Relevant Legislation.

15. Applications for access or amendment to personal information in accordance with Sections 14 and 15 of the Privacy and Personal Information Protection Act 1998 will be dealt with under that Act, independently and distinct from the provisions of this policy.

16. Applications for access or amendment to information made under Sections 17 and 35 of the Freedom of Information Act will be determined in accordance with the provisions of that Act, independently and distinct from the provisions of this policy.

17. Applications for access or amendment to health information in accordance with Sections 26 and 33 of the Health Records and information Privacy Act will be dealt with under that Act, independently and distinct from the provisions of this policy.

Hornsby Shire Council

Attachment to Report No. EN47/08 Page 74

*Source:*	*Hawkesbury Nepean Catchment Management Authority (HNCMA) D01046745*
*Comment:*	“The DLHEMP includes a number of actions where the HNCMA considers that it does have a support role which has not been identified. The HNCMA would be willing to be identified as an agency with a support role for these actions.”
*Response:*	*Action 2v, 9a, 8b, 8d, 2g, 2t, 2w, 8e, 15e, 16f, amended to include the HNCMA as a support agency*
*Comment:*	*“There are a number of actions where the HNCMA has been inappropriately identified as having either a lead or support role.”*
*Response*	*Action 9e, 8a, 2n, 11a, 11b, 11d, 11e, 12e, 12f, amended to remove the HNCMA as having either a lead or support role.*
*Comment:*	*“The HNCMA is generally in agreement with our involvement in the following actions; however we note that other agencies with key responsibility have not been identified.”*
*Response:*	*Action 1a, 6a, 13a, 2s, 6i, 6j amended to incorporate agencies as recommended by the HNCMA.*
*Source:*	*Gosford City Council (GCC) D01046408*
*Comment:*	*“Within GCC the Integrated Planning Unit has identified the following sections of Council that may have responsibilities for implementation of the DLHEMP.”*
*Response:*	Action 1a, 2e, 1b, 1g, 1d, 2v, 10a, 6a, 9b, 1f, 9a, 9c, 12h, 2d, 8b, 8c, 9e, 10b, 4a, 5a, 15a, 2a, 15b, 11a, 10d, 8d, 13a, 13b, 2b, 1h, 2n, 15d amended as requested by GCC to incorporate internal service responsibilities
*Source:*	*Town Planning Services (TPS) D01011070*
*Comment:*	*“Sufficient staff and budget resources for most strategies will be provided within the Strategic Planning Program over the next three years to 2011.”*
*Response:*	*Noted*
*Comment:*	*“edits for consistency”*
*Response:*	*Action 1b, 2a, 6a amended as requested by TPS.*
*Comment:*	*Appendix-D Guidelines for Estuary Asset Protection* *“Any ‘must’ statements should be reworded as ‘should’ statements and guidelines should not incorporate restrictions required to be addressed ‘prior to consent’”.*
*Response:*	*Amended as requested*
*Source:*	*Diane Campbell, Biodiversity Planning and Management (D01046413)***
*Comment:*	*“Team would like to be involved in the plan implementation, future reviews and stakeholder workshops.”*
*Response:*	*Noted*
*Comment:*	“Saltmarsh section needs to mention that significant losses of saltmarsh is also due to clearing, filling and land reclamation….and the remaining areas are under threat from weed invasion by Juncus acutus”
*Response:*	*Amended as requested*
*Comment:*	“Bushland and Biodiversity Management Team would like to take a lead responsibility for action 1k a shared lead responsibility for actions 1a, 2d, 2e, and support responsibilities for actions 1e, 1f, 10a, 10d, 13a, and 13b.”
*Response:*	*Amended as requested*
*Source:*	*John Carrick (D00991369)*
*Comment:*	*“I would like Council to remove from the DLHEMP that part of the Acid Sulfate Soils which relates to moving silt”*
*Response:*	*Noted but no amendments incorporated. Acid sulfate soils present significant risk to human health and ecological functioning, management of such risk is a key component of this Plan.*
*Source:*	*Cate Faehrmann, Nature Conservation Council, (D01031637)*
*Comment:*	*“The protection of the Lower Hawkesbury estuarine system is of high importance and the proposed actions should be implemented as quickly as possible.”*
*Response:*	*Noted*

Current facility related fees - Johnson Road 2008
Annual Lease fee @$90pcm	1080
Garbage Collection	384
Electricity	654
Water	400
Mowing	N/A
Mowing consumables	100
Mowing repairs	100
Cleaning of amenities	N/A
Total annual fees 2009	$2718