The Local Government Amendment (Councillor Misconduct and Poor Performance) Act 2015 (‘amending Act’) commenced on 13 November 2015 and amended the Local Government Act 1993 (the Act) so as to modify the legislative scheme for dealing with councillor misconduct and poor performance and council maladministration.
Disqualification under s275
The new s275(1)(A) relates to disqualifications from holding civic office. If a suspension order is made against a person by the Departmental Chief Executive (‘Chief Executive‘), or the NSW Civil and Administrative Tribunal (‘NCAT‘) on referral from the Chief Executive, and it is the third or subsequent order that has been made (including orders made prior to commencement of the section), the person shall be disqualified from holding civic officer for 5 years.
As a result of amendments to s434 of the Act, councils shall only have 28 days to prepare a response to an investigation report prepared by Director-General under s430 of the Act.
Performance improvement orders
The amending Act has introduced a number of changes to performance improvement orders including:
- Ability for the Minister to vary an existing performance improvement order by giving 7 days’ notice.
- Reducing consultation periods so that councils now only have 7 days to respond to a notice of intention to issue a performance improvement order.
- Introduction of s438A(7A) so that it is no longer a requirement for the expiration of performance improvement order to remedy non-compliance.
Enforcement of performance improvement order against a councillor
Further, section 438HA has been inserted and allows the Chief Executive to arrange for a departmental report to be prepared detailing whether a councillor has failed to take action as required by a performance improvement order. Such a report must be prepared when requested by the Minister.
Where a departmental report finds that a councillor has failed to take necessary action under a performance improvement order the Minister may issue a compliance order to the councillor. Such an order may remain in force for a period not exceeding 3 months or where extended in writing by the Minister for a period not extending 6 months.
Where a compliance order is in force the councillor is not entitled to:
(a) exercise any of the functions of the councillor other than is necessary to take the action specified in the compliance order, and
(b) any fee or other remuneration, or to the payment of expenses or to the use of council facilities, to which he or she would otherwise be entitled as a councillor, except as specified in the compliance order.
Under s438HA(8) the Minister may request the Chief Executive to refer the matter to the Civil and Administrative Tribunal for consideration. This request can be made instead of taking action under s438HA(8), after taking action under s438HA or whilst a compliance order is in force against a councillor.
It is noted that failure by a councillor to take action as required by a performance improvement is to be taken to be misconduct.
Serious corrupt conduct
As a result of the amendments (s440B(1A)) the Governor may disqualify a person from holding civic office for a period not exceeding 5 years where;
- a recommendation has been made by the Independent Commission Against Corruption (ICAC) that consideration be given to the suspension of the person from office with a view to his or her dismissal for serious conduct,
- the person has since ceased to hold civic office, and
- the Minister advised that the disqualification of the person from holding civic office is necessary in order to protect the public standing of councils and the proper exercise of their functions.
Amendments have also been made to s440C with regard to temporary suspension as a result of serious corrupt conduct. Where ICAC has recommended suspension or as a result of an admission made by the person in which proceedings have commenced relating to the recommendation or admission, s440C(4A) provides that the suspension remains in effect whilst those proceedings and any related proceedings for review or appeal are dealt with. The amendment also has the effect of extending the 6 month period prescribed under s440C(4)(a) to being a period of 6 months after any proceedings or related proceedings for review or appeal are finally dealt with or withdrawn. Similar provisions are also included in s440D(4) in relation to the temporary suspension of staff in connection with serious corrupt conduct.
The definition of misconduct under s440F(1) now includes:
(e) an act or omission of the councillor intended by the councillor to prevent the proper or effective functioning of the council or a committee of the Council.
Examples of such conduct may include: preventing a council from making a decision by deliberately leaving a meeting to deprive it of a quorum, submitting large numbers of notices or questions on notice with a view to preventing the council from getting through its business, and misusing rescission motions to prevent councils from revisiting a matter for another three months.
Preparation of departmental report – without investigation
Another key amendment introduced is the ability for the Chief Executive to arrange for a departmental report to be prepared about whether a councillor has engaged in misconduct without an investigation being carried out (s440H(5A)).
An investigation is no longer required where:
(a) the matter has been referred by the council and the Chief Executive is of the opinion that the report may be based on the findings of an investigation conducted by or on behalf of the council, or
(b) the Chief Executive is of the opinion that the alleged misconduct, if proven, would be minor in nature and, were it to warrant disciplinary action, the disciplinary action would be compromised only of counselling or reprimanding the councillor, or
(c) the Chief Executive otherwise considers it appropriate to do so.
Notice of disciplinary action
Prior to undertaking disciplinary action for misconduct against a councillor the Chief Executive is required to give written notice under s 440I(3A):
(a) advising of the grounds on which it is proposed to take disciplinary action,
(b) specifying the disciplinary action that is proposed to be taken, and
(c) inviting the councillor to make a submission within a period of not less than 14 days.
A councillor is no longer required to disclose the nature of a pecuniary interest (s451(1)) or remove themselves from the meeting of the council or committee (s451(2)) where the pecuniary interest arises only because of an interest of the councillor in the councillor’s principle place of residence or an interest of another person (whose interests are relevant under s443) in that person’s principle place of residence, where the councillor has made a special disclosure in relation to the interest before the commencement of the meeting (s451(4)(a1)). As a result, councillors with property interests, other than their principle place of residence, within a local government area will be precluded from participating in the consideration of planning changes which relate to these areas.
This is a significant change which has been introduced by the Minister in order to prevent councillors from participating in the consideration of changes to a planning instrument affecting an area in which they have a pecuniary interest.
For further information, please contact Tony Pickup of Local Government Legal on (02) 4922 2307
* The above information is not to be relied upon as legal advice.