Posted on September 6, 2018 by Lindsay Taylor, Katie Mortimer and Megan Hawley
UPDATE – Prescribed Model Code of Conduct for Local Councils in NSW released
On 3 September 2018 the Minister for Local Government (Minister) released the 2018 Model Code of Conduct for Local Councils in NSW (Code), and Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW (Code Procedures).
The Code is not yet prescribed. The Office of Local Government has stated that an amendment to the Local Government (General) Regulation 2005 will shortly give effect to the Code. Once the Code is prescribed, councils will have 6 months to adopt a code of conduct that incorporates the Code.
We previously blogged on the consultation draft of the Code (Consultation Draft) here.
The Code is substantially the same as the Consultation Draft, however some amendments have been made.
New clauses in the Code not in the Consultation Draft
Notable inclusions in the Code not proposed in the Consultation Draft include:
- the Code now makes express provision for county councils and joint organisations, and includes notes that adapt terminology to be relevant to them,
- the insertion of new ‘reasonable management actions‘ that will not constitute bullying behavior. These protect the legitimate exercise of a regulatory function, and legitimate implementation of a council policy or administrative process (clause 3.11 (f) and (g)),
- that designated persons, and members of staff of council, must disclose pecuniary interests ‘as soon as practicable after becoming aware of the interest‘ (clauses 4.10 and 4.14),
- similarly, that a person must disclose a non-pecuniary conflict of interest in relation to a matter as soon as practicable ‘after becoming aware of the non-pecuniary conflict‘ (clause 5.6),
- if the Minister allows a councillor or council committee member who has a pecuniary interest in a matter to be present at a meeting, and take part in consideration or discussion of that matter, then that permitted person must still disclose the interest they have in the matter (clause 4.39)
- if the general manager of a council has a non-pecuniary conflict of interest, a decision on how it should be dealt with must now be made in consultation and at the direction of the mayor (see clause 5.12),
- council committee members are not required to declare and manage non-pecuniary conflicts of interest under Part 5 of the Code, if they arise from an interest they have ‘as a person chosen to represent the community, or as a member of a nonprofit organisation or other community or special interest group, if they have been appointed to represent the organisation or group on the council committee‘ (see clause 5.14),
- non-pecuniary conflicts of interest arising from reportable political donations must be recorded in the minutes of a council meeting (clause 5.16),
- where a council has a loss of quorum as a result of compliance with Part 5 of the Code (Non-Pecuniary Conflicts of Interest), the Minister (rather than the Chief Executive of the Office of Local Government) may allow a councillor or council committee member to take part in a matter they would otherwise be precluded from participating in,
- there is a new ‘inappropriate interaction‘, that prohibits councillors and administrators from approaching members of local planning panels and discussing applications that are before the panel, or that will come before the panel, unless that application forms part of the agenda of a panel meeting and the Councillor has a right to be heard by the panel at that meeting (clause 7.6),
- council record keeping must comply with the State Records Act 1998,
- references to the Election Funding, Expenditure and Disclosures Act 1981 have been amended to the Electoral Funding Act 2018, which commenced on 1 July 2018,
- the Code has halved the threshold amounts above which gifts or debts, for example, need to be disclosed. For example, a gift does not need to be disclosed in a return if it does not exceed $500 (as opposed to the $1,000 proposed in the Consultation Draft).
Clauses proposed in the Consultation Draft not adopted in the Code
The following clauses from the Consultation Draft have not been adopted in the Code:
- clause 4.27 of the Consultation Draft that proposed a requirement for written returns disclosing councillors and the general managers’ interests to be published on the council’s website as soon as practicable after lodgment, and
- clause 3.15 of the Consultation Draft that proposed that a written record must be kept of all meetings and other communications with applicants or objectors to planning applications, and that Councillors must disclose in writing any meetings or communications with applicants or objectors to a planning application at a council or committee meeting where the planning application is under consideration.
Should you wish to discuss the Code, please contact Dr Lindsay Taylor on (02) 8235 9701 or by email at firstname.lastname@example.org or Megan Hawley on (02) 8235 9703 or by email at email@example.com