Posted on August 15, 2020 by Lindsay Taylor 7

ALERT – Revised Model Code of Conduct and Associated Procedures for Local Councils in NSW

On 7 August 2020, the NSW Government published The Model Code of Conduct for Local Councils in NSW 2020 (New Model Code) and the New Code for the Administration of The Model Code of Conduct for Local Councils in NSW 2020 (New Code Procedures). These documents replace the previous versions published in 2018.

The New Model Code has binding legal force on local government officials under section 440(5) of the Local Government Act 1993 (NSW) (LG Act). The New Code Procedures have binding legal force on local government officials in relation to the investigation of complaints about breaches of the New Model Code and associated matters under s440AA(5) of the LG Act.

The New Model Code and New Code Procedures contain changes relating to:

• the definitions of council committees and council committee members,
• grounds of harassment and discrimination,
• gifts and benefits,
• the establishment of conduct review panels,
• the procedures for investigating code of conduct complaints regarding councillors and general managers,
• the imposition of sanctions, and
• the procedures for reviewing decisions to impose sanctions.

The majority of the amendments appear in the New Code Procedures.

Some of the amendments regarding the investigation of code of conduct complaints about councillors and general managers, the imposition of sanctions, and the review of decisions to impose sanctions, stem from the consideration by the Office of Local Government (OLG) of the decision of the Supreme Court of NSW in Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134.

In Cornish, the Supreme Court held that a council resolution that subjected a councillor to disciplinary measures (being the suspension of remuneration for a period of 3 months) was invalid as it was not authorised by the LG Act under which a council’s disciplinary powers for councillor misconduct are limited to the power of censure (see section 440G of the LG Act).

Amended definitions  

In both the New Model Code and the New Code Procedures, the definitions of the terms ‘council committee‘ and ‘council committee member‘ have been amended so as to include, respectively, a council’s audit, risk and improvement committee, and a person (other than a councillor) who is a member of such a committee.

New Model Code Changes

Grounds of harassment and discrimination 

In clause 3.6 of the New Model Code, the grounds of  harassment and unlawful discrimination have been refined to remove reference to ‘domestic status‘ (which has been replaced with ‘marital or relationship status‘), ‘homosexuality‘ (which has been replaced with ‘sexual orientation‘), ‘transgender status’ (which has been replaced with ‘gender identity or intersex status‘), ‘carer’s responsibilities‘ (which has been replaced with ‘family responsibilities’), and ‘infectious disease‘ (which has been removed completely).  The meaning of the ground of ‘race‘ is also set out with more specificity, with additional detail as to its meaning provided in brackets.

Clause 3.6 of the New Model Code now reads as follows:

‘You must not harass or unlawfully discriminate against others, or support others who harass or unlawfully discriminate against others, on the grounds of age, disability, race (including colour, national or ethnic origin or immigrant status), sex, pregnancy, marital or relationship status, family responsibilities or breastfeeding, sexual orientation, gender identity or intersex status or political, religious or other affiliation.’ 

Gifts and benefits 

Part 6 of the New Model Code covers gifts and benefits.

The monetary value limit for gifts and benefits to be considered of token value has been increased from $50 to $100 inclusive of GST (see clauses 6.8-6.11).

Further, in clause 6.2, two further items have been added to the items that do not constitute a gift or benefit under Part 6 of the New Model Code. These are:

• items with a value of $10 or less, and
• a benefit or facility provided by the council to an employee or councillor.

Compliance with requirements under the New Code Procedures 

In view of changes contained in the New Code Procedures and as a result of the decision in Cornish, former clause 9.9, which concerned the need for a councillor or general manager to comply with any council resolution requiring them to take action as a result of a breach of the code of conduct, has been removed from the New Model Code.

New Code Procedures Changes

The New Code Procedures include a number of changes, the most significant of which result from the decision in Cornish. 

Establishment of panel of conduct reviewers 

In Part 3 of the New Code Procedures, the process for appointing and terminating conduct review panels has been simplified by way of removing the requirement for a council to take certain actions by way of a council resolution.

More specifically, a council resolution is no longer required for a council to:

• enter into an arrangement with one or more other councils to share a panel of conduct reviewers including through a joint organisation or another regional body associated with the councils (see clause 3.2), and
• terminate a panel of conduct reviewers at any time (see clause 3.10).

Preliminary assessment of code of conduct complaints about councillors or the general manager by a conduct reviewer 

In Part 6 of the New Code Procedures, in relation to the investigation of alleged breaches of the New Model Code by councillors or a general manager, clauses 6.22(b) and 6.23 have, as a consequence of the decision in Cornish, been amended so as to specifically refer to the ‘formal censure of a councillor under section 440G of the LGA or disciplinary action against the general manager under their contract of employment…’ as potential outcomes of an investigation.

Investigation and resolution of code of conduct complaints about councillors or the general manager 

Part 7 of the New Code Procedures concerning investigations of alleged breaches of the New Model Code by councillors or a general manager has been significantly amended, largely as a consequence of the decision in Cornish.

Changes in Part 7 of the New Code Procedures arising from the decision in Cornish

Most significantly, and as a consequence of the decision in Cornish, the recommendations that may be made under clause 7.37 (formerly clause 7.36) by an investigator who has determined that a councillor or general manager has breached the New Model Code, and the corresponding sanctions that may be imposed by resolution by a council under clause 7.58 (formerly clause 7.59), have been refined, by way of limitation to the following:

• in the case of a breach by the general manager, that disciplinary action be taken under the general manager’s contract of employment for the breach, or
• in the case of a breach by a councillor, that the councillor be formally censured for the breach under section 440G of the LG Act, or
• in the case of a breach by a councillor, that the councillor be formally censured for the breach under section 440G of the LG Act, and that the matter be referred to the OLG for further action under the misconduct provisions of the LG Act.

Further, a new clause 7.59 has been inserted into the New Code Procedures, which provides as follows:

‘Where the council censures a councillor under section 440G of the LGA, the council must specify in the censure resolution the grounds on which it is satisfied that the councillor should be censured by disclosing in the resolution, the investigator’s findings and determination and/or such other grounds that the council considers may be relevant or appropriate.’  

The ability of a council to propose, and resolve to impose, a different sanction on the respondent to that which was recommended by the investigator has also been removed from the New Code Procedures. As a result, former clause 7.61 has been removed and former clause 7.62 (which now appears as clause 7.61) has been amended. New clause 7.61 now provides as follows: ‘Where the council resolves not to adopt the investigator’s recommendation, the complaints coordinator must notify the Office of the council’s decision and the reasons for it‘.

Other changes in Part 7 of the New Code Procedures

The minimum time period for the provision of written submissions by complainants, respondents and affected persons to an investigator has been amended to ‘a period of not less than 14 days’ (see clauses 7.4(e), 7.7, 7.8(c), 7.27 and 7.28).

Further, former clause 7.38, which regarded the matters an investigator could have regard to in making a recommendation under former clause 7.36 (now clause 7.37) has been removed.

A new clause 7.39 has been inserted, which provides that, where an investigator has determined that there has been a breach of the New Model Code, they may recommend that a council revise any of its policies, practices or procedures in addition to making a recommendation under clause 7.37.

As a result of the amendments to former clause 7.36 (now clause 7.37), former clauses 7.44 to 7.46 have been consolidated. A new clause 7.44 now provides that, where an investigator has determined that there has been a breach of the Code and makes a recommendation under clause 7.37, ‘the complaints coordinator must, where practicable, arrange for the investigator’s report to be reported to the next ordinary council meeting for the council’s consideration, unless the meeting is to be held within the 4 weeks prior to an ordinary local government election, in which case the report must be reported to the first ordinary council meeting following the election’.

Further, a new clause 7.45 has been inserted, which provides that: ‘Where it is apparent to the complaints coordinator that the council will not be able to form a quorum to consider the investigator’s report, the complaints coordinator must refer the investigator’s report to the Office for its consideration instead of reporting it to the council under clause 7.44’.

Former clause 7.47 (now clause 7.46) has also been amended to take into account the revised recommendations that may be made by an investigator under clause 7.37 (formerly clause 7.36).

Review of decisions to impose sanctions

Part 8 of the New Code Procedures has also been significantly amended as a consequence of the decision in Cornish.

Clause 8.11 has been amended so that a councillor who is the subject of a sanction imposed under clause 7.58(c), being that they be formally censured under section 440G of the LG Act and that the matter be referred to the OLG for further action under the misconduct provisions of the LG Act, is precluded from the right to seek a review of the decision to impose the sanction.

Further, former clause 8.20 has been removed, and former clauses 18.19 and 18.21 have been consolidated, so as to remove reference to a sanction implemented by the general manager or mayor under former clause 7.45, and a sanction imposed by council by resolution under former clause 7.59. New clause 18.19 now provides as follows:

‘Where the Office considers that the investigator or the council has erred, the Office may recommend that a decision to impose a sanction under these procedures be reviewed. Where the Office recommends that the decision to impose a sanction be reviewed:

(a) the complaints coordinator must, where practicable, arrange for the Office’s determination to be tabled at the next ordinary council meeting unless the meeting is to be held within the 4 weeks prior to an ordinary local government election, in which case it must be tabled at the first ordinary council meeting following the election, and

(b) the council must:

i) review its decision to impose the sanction, and

ii) consider the Office’s recommendation in doing so, and

iii) resolve to either rescind or reaffirm its previous resolution in relation to the matter’.

Former clause 8.22 (now clause 8.20) has also been amended so that it refers to new clause 8.19(b).

The New Model Code and the New Code Procedures can be viewed here.

Our previous blog about the OLG’s Circular No. 19-25, regarding limits on councils’ disciplinary powers as they apply to councillors under the Procedures for the Administration of The Model Code of Conduct for Local Councils in NSW 2018, which was issued following the decision in Cornish, can be viewed here. The decision in Cornish can be viewed here.

To discuss this blog please contact Dr Lindsay Taylor on 02 8235 9701 or Sophia Urlich on 02 8235 9708.