Posted on November 18, 2015 by

Councillor misconduct reforms to Local Government Act commence

The Local Government Amendment (Councillor Misconduct and Poor Performance) Act 2015 (‘Amending Act‘) commenced on 13 November 2015, introducing a host of changes to the Local Government Act 1993 which, according to the Minister, are designed to build on earlier reforms by offering ‘a more effective deterrent to serious and repeated councillor misconduct’.

This post will look at some of the more significant amendments to the Act.

Three strikes policy 

Following amendments to s275 of the Act, persons who have been the subject of three or more orders for suspension from civic office for misconduct will now be disqualified from holding civic office for 5 years (being effectively two terms of council) after the date the most recent order takes effect.

In order to trigger disqualification, at least one of the suspension orders must have been made by the Departmental Chief Executive (‘Chief Executive‘), or the NSW Civil and Administrative Tribunal (‘NCAT‘) on referral from the Chief Executive, after the commencement of the Amending Act.

Expanding the definition of ‘misconduct’ of a councillor

The definition of ‘misconduct’ of a councillor in s440F of the Act has been expanded to include ‘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’.

The Minister provided the following examples of behaviour which would be captured under the expanded definition of ‘misconduct’ in his second reading speech to the Parliament:

• 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;
• misusing rescission motions to prevent councils from revisiting a matter for another three months.

Reduced response times for investigated councils 

Under changes to s434 of the Act, councils now only have 28 days (down from 40 days) to prepare a response to an investigation report prepared by Director-General under s430 of the Act. A council’s response must provide written notice of the things a council has done or proposes to do to give effect to any recommendations contained in the report.

The Minister reasoned that the previous 40 day period was ‘too long’ where remedial action is warranted to address proven maladministration.

Changes to performance improvement orders

Varying performance improvement orders

The Minister now has the ability to vary existing performance improvement orders by giving 7 days’ notice to councils of the terms of the proposed variation and the reasons for it.

Reduced consultation periods

Councils now only have 7 days to respond to a notice of intention to issue a performance improvement order in all cases whereas previously the consultation period was 21 days (or 7 days in cases where the Minister considered the improvement in the council’s performance was required as a matter of urgency).

Further actions

Following the introduction into the Act of s438A (7A), the Minister and other persons empowered under the Act no longer have to wait until the expiration of a performance improvement order to remedy non-compliance. Section 438A (7A) provides:

‘The making of a performance improvement order, or the fact that such an order is in force, does not derogate from a power of the Minister or any other person to make any other order or take any other action under this Act.’

The change means that Minister could, for example, suspend the Council, or hold a public inquiry, during the period for compliance with a performance improvement order.

Enforcement of performance improvement orders against individual councillors

Perhaps one of the most significant changes worked by the Amending Act is the introduction of s438HA which allows the Minister to issue a compliance order against individual councillors who have failed to take action as required by a performance improvement order.

Previously the non-compliance of individual councillors could only be remedied by the suspension of the entire council.

Section 438HA provides that a compliance order may be issued by the Minister against an  individual councillor after a departmental report is prepared which finds that the councillor has failed to take action as required by a performance improvement order.

The Minister must first give the councillor written notice:

• specifying the action that the councillor has failed to take;
• specifying that the Minister proposes to issue a compliance order; and
• inviting the councillor to make submissions about why the order should not be made within a period of not less than 7 days.

The Minister may issue a compliance order after considering any submissions made by the councillor. The compliance order must:

• identify the action that the councillor has failed to take under a performance improvement order; and
• specify the extent to which the councillor may use council facilities or the amount that the councillor may be paid for the purposes of taking action under the performance improvement order (as the case requires); and
• specify the period (not exceeding 3 months) for which it is to remain in force.

While a compliance order remains in force against a councillor, the councillor:

• is not entitled to exercise any of the functions of the councillor other than as necessary to take the action specified in the compliance order, and
• is not entitled to any fee or other remuneration, or to the payment of expenses or to the use of council facilities, except as specified in the compliance order.

The Minister may extend the period for which the compliance order remains in force up to a further 3 months by giving written notice to the councillor.

At any time before or after taking action under s438HA, the Minister may request the Chief Executive to refer the matter to the NCAT. The NCAT will decide whether to conduct proceedings into the matter after considering a report prepared by the Chief Executive.

Dispensing with departmental misconduct investigations

Following amendments to s440H, the Chief Executive can now dispense with the requirement to undertake an investigation as a prerequisite to taking disciplinary action against a councillor for engaging in misconduct if:

• the matter has been referred by the council and the Chief Executive is of the opinion that a departmental report may be based on the findings of an investigation carried out by or on behalf of the council, or
• the Chief Executive is of the opinion that the alleged misconduct, if proven, would be minor in nature and any disciplinary action would be comprised only of counselling or reprimanding, or
• the Chief Executive otherwise considers it appropriate to do so.

Conclusions

These changes, and other changes worked by the Amending Act demonstrate a tougher Departmental approach to the highly visible issue of councillor misconduct and give the Department flexibility to deal with councillor misconduct at an individual level.