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This is a Bill, not an Act. For current law, see the Acts databases.
ocal Government Amendment (Conduct) Bill 2012 No , 2012 A Bill for An Act to amend the Local Government Act 1993 to make further provision in relation to the conduct and discipline of councillors and council staff, delegates and administrators; and for related purposes. Clause 1 Local Government Amendment (Conduct) Bill 2012 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Local Government Amendment (Conduct) Act 2012. 3 2 Commencement 4 This Act commences on a day or days to be appointed by proclamation. 5 Page 2 Local Government Amendment (Conduct) Bill 2012 Amendment of Local Government Act 1993 No 30 Schedule 1 Schedule 1 Amendment of Local Government 1 Act 1993 No 30 2 [1] Section 10A Which parts of a meeting can be closed to the public? 3 Insert after section 10A (2) (h): 4 (i) alleged contraventions of any code of conduct 5 requirements applicable under section 440. 6 [2] Section 56 Application of Division 7 Omit the note. 8 [3] Sections 57, 58 (1), 59 (1), 60, 61, 62 (1) and (2), 63 (1), 65 and 66 (1), (3) 9 and (4) 10 Omit "Minister for Land and Water Conservation" wherever occurring. 11 Insert instead "Minister for Primary Industries". 12 [4] Section 234 When does a vacancy occur in a civic office? 13 Insert "440I," after "section" in section 234 (1) (d). 14 [5] Section 328A General manager to keep register of political donation 15 disclosures 16 Insert ", Expenditure" after "Funding" wherever occurring in section 328A (2) 17 and the note. 18 [6] Sections 328B Reference by general manager to Director-General of 19 political donation matters 20 Omit section 328B (2) and (3). 21 [7] Chapter 14 Honesty and disclosure of interests 22 Omit "and staff of councils" from the Introduction. 23 Insert instead ", staff of councils and administrators of councils". 24 [8] Chapter 14, Introduction 25 Insert "and enables the Director-General to investigate and take action against 26 councillors who engage in misconduct" after "functions of councils". 27 Page 3 Local Government Amendment (Conduct) Bill 2012 Schedule 1 Amendment of Local Government Act 1993 No 30 [9] Section 439 Conduct of councillors, staff, delegates and administrators 1 Insert after section 439 (2): 2 (3) This section applies to an administrator of a council (other than 3 an administrator appointed by the Minister for Primary Industries 4 under section 66) in the same way as it applies to a councillor. 5 [10] Section 440 Codes of conduct 6 Insert after section 440 (8): 7 (9) This section applies to an administrator of a council (other than 8 an administrator appointed by the Minister for Primary Industries 9 under section 66) in the same way as it applies to a councillor. 10 [11] Section 440AA 11 Insert after section 440: 12 440AA Administration of code of conduct 13 (1) The regulations may prescribe a procedure (the model 14 procedure) for administering the model code referred to in 15 section 440. 16 (2) The model procedure is to set out the procedures for dealing with 17 alleged contraventions of the model code. 18 (3) A council must adopt a procedure (the adopted procedure) that 19 incorporates the provisions of the model procedure. The adopted 20 procedure may include provisions that supplement the model 21 procedure. 22 (4) A council's adopted procedure has no effect to the extent that it 23 is inconsistent with the model procedure as in force for the time 24 being. 25 (5) Councillors, members of staff and delegates of a council must 26 comply with the applicable provisions of: 27 (a) the council's adopted procedure, except to the extent of 28 any inconsistency with the model procedure as in force for 29 the time being, and 30 (b) the model procedure as in force for the time being, to the 31 extent that: 32 (i) the council has not adopted the model procedure, or 33 (ii) the adopted procedure is inconsistent with the 34 model procedure, or 35 (iii) the model procedure contains provisions or 36 requirements not included in the adopted procedure. 37 Page 4 Local Government Amendment (Conduct) Bill 2012 Amendment of Local Government Act 1993 No 30 Schedule 1 (6) This section applies to an administrator of a council (other than 1 an administrator appointed by the Minister for Primary Industries 2 under section 66) in the same way as it applies to a councillor. 3 [12] Chapter 14, Part 1, Division 3 4 Omit the Division. Insert instead: 5 Division 3 Misconduct 6 440F Definitions 7 (1) In this Division: 8 misconduct of a councillor means any of the following: 9 (a) a contravention by the councillor of this Act or the 10 regulations, 11 (b) a failure by the councillor to comply with an applicable 12 requirement of a code of conduct under section 440, 13 (c) a failure by a councillor to comply with an order issued by 14 the Director-General under this Division, 15 (d) an act of disorder committed by the councillor at a meeting 16 of the council or a committee of the council. 17 (2) However, a contravention of the disclosure requirements of 18 Part 2 is not misconduct. 19 Note. A contravention of the disclosure requirements of Part 2 is dealt 20 with under other provisions of this Chapter. 21 (3) A reference in this Division to misconduct includes a reference to 22 misconduct that consists of an omission or failure to do 23 something. 24 440G Formal censure of councillor for misconduct 25 (1) A council may by resolution at a meeting formally censure a 26 councillor for misconduct. 27 (2) A formal censure resolution may not be passed except by a 28 motion to that effect of which notice has been duly given in 29 accordance with regulations made under section 360 and, if 30 applicable, the council's code of meeting practice. 31 (3) A council may pass a formal censure resolution only if it is 32 satisfied that the councillor has engaged in misconduct on one or 33 more occasions. 34 Page 5 Local Government Amendment (Conduct) Bill 2012 Schedule 1 Amendment of Local Government Act 1993 No 30 (4) The council must specify in the formal censure resolution the 1 grounds on which it is satisfied that the councillor should be 2 censured. 3 (5) A motion for a formal censure resolution may, without limitation, 4 be moved on the report of a committee of the council and any 5 such report must be recorded in the minutes of the meeting of the 6 council. 7 440H Director-General may investigate misconduct by a councillor 8 (1) The Director-General may conduct an investigation for the 9 purpose of determining whether a councillor has engaged in 10 misconduct. 11 (2) The Director-General may conduct such an investigation: 12 (a) on his or her own initiative, or 13 (b) if the general manager of a council refers an allegation of 14 misconduct by a councillor to the Director-General, or 15 (c) if a council, by resolution, refers an allegation of 16 misconduct by a councillor to the Director-General, or 17 (d) if the Ombudsman states in a report that the Ombudsman 18 is satisfied that a councillor has or may have engaged in 19 misconduct, or 20 (e) if the Independent Commission Against Corruption states 21 in a report that the Commission is satisfied that a 22 councillor has or may have engaged in misconduct. 23 (3) For the purpose of an investigation, the Director-General may, by 24 order in writing served on any relevant person, direct the person 25 to do any one or more of the following: 26 (a) provide written information, by the date specified in the 27 order, and to verify the information by statutory 28 declaration, 29 (b) produce, at a time and place specified in the order, any 30 document specified in the order that is in the person's 31 custody or control. 32 Note. Failure to comply with the direction is an offence under 33 section 661. 34 (4) The Director-General may take copies of or extracts from any 35 document to which the Director-General gains access under this 36 section. 37 Page 6 Local Government Amendment (Conduct) Bill 2012 Amendment of Local Government Act 1993 No 30 Schedule 1 (5) The Director-General may arrange for a departmental report to be 1 prepared in relation to an investigation conducted under this 2 section. 3 (6) The preparation of a departmental report is a prerequisite to a 4 decision by the Director-General to take disciplinary action 5 against a councillor, unless the disciplinary action is taken on the 6 basis of a report by the Ombudsman or Independent Commission 7 Against Corruption. 8 (7) This section authorises reports relating to misconduct to be made 9 by the Ombudsman or Independent Commission Against 10 Corruption and a reference to a report of the Ombudsman or 11 Independent Commission Against Corruption is a reference to a 12 report made to the Director-General under the authority of this 13 subsection or under any other provision of this or any other Act. 14 (8) The powers conferred on the Director-General by this section 15 may also be exercised for the purposes of determining if an 16 administrator has engaged in conduct that would be misconduct 17 if the administrator were a councillor. 18 (9) In this section: 19 administrator means an administrator of a council (other than an 20 administrator appointed by the Minister for Primary Industries 21 under section 66). 22 relevant person means a councillor, a member of staff of a 23 council, a delegate of a council or an administrator. 24 440I Director-General may take disciplinary action for misconduct 25 (1) The Director-General may take disciplinary action against a 26 councillor if the Director-General is satisfied that: 27 (a) the councillor has engaged in misconduct (whether on the 28 basis of a departmental report or a report by the 29 Ombudsman or Independent Commission Against 30 Corruption), and 31 (b) disciplinary action is warranted. 32 (2) The Director-General may take one or more of the following 33 actions (and any such action is disciplinary action): 34 (a) counsel the councillor, 35 (b) reprimand the councillor, 36 (c) by order, direct the councillor to cease engaging in the 37 misconduct, 38 Page 7 Local Government Amendment (Conduct) Bill 2012 Schedule 1 Amendment of Local Government Act 1993 No 30 (d) by order, direct the councillor to apologise for the 1 misconduct in the manner specified in the order, 2 (e) by order, direct the councillor to undertake training, 3 (f) by order, direct the councillor to participate in mediation, 4 (g) by order, suspend the councillor from civic office for a 5 period not exceeding 3 months, 6 (h) by order, suspend the councillor's right to be paid any fee 7 or other remuneration, to which the councillor would 8 otherwise be entitled as the holder of the civic office, in 9 respect of a period not exceeding 3 months (without 10 suspending the councillor from civic office for that 11 period). 12 (3) In determining which disciplinary action, if any, to take against a 13 councillor who has engaged in misconduct, the Director-General 14 may take into account any previous incidents of misconduct by 15 the councillor, any disciplinary action previously taken against 16 the councillor and any other relevant matters. 17 (4) The Director-General is to notify the councillor of any decision 18 to take disciplinary action under this section and the reasons for 19 the decision. 20 (5) A copy of the decision and the statement of reasons for the 21 decision are to be provided to the council. 22 (6) The Director-General is to make any decision to suspend a 23 councillor from civic office or to suspend a councillor's right to 24 be paid any fee or other remuneration under this section, and the 25 statement of reasons for the decision, publicly available. 26 (7) The Director-General may make any other decision to take 27 disciplinary action against a councillor, and the statement of 28 reasons for the decision, publicly available. 29 (8) No liability (including liability in defamation) is incurred for 30 making a decision publicly available as permitted or required by 31 this section or for publishing in good faith a fair report or 32 summary of such a decision. 33 440J Alternatives to disciplinary action by the Director-General 34 (1) The Director-General may before, during or after an investigation 35 into an allegation of misconduct by a councillor decide to take no 36 further action against the councillor, if satisfied that no further 37 action is warranted. 38 Page 8 Local Government Amendment (Conduct) Bill 2012 Amendment of Local Government Act 1993 No 30 Schedule 1 (2) The Director-General may, instead of taking disciplinary action 1 against a councillor: 2 (a) refer the matter to the council concerned with 3 recommendations as to how the council might resolve the 4 matter, by alternative dispute resolution or otherwise, or 5 (b) refer the matter to the Pecuniary Interest and Disciplinary 6 Tribunal for consideration. 7 (3) A matter is referred to the Tribunal under this section by means 8 of a report presented to the Tribunal by the Director-General. A 9 report may contain or be accompanied by such material and 10 observations as the Director-General thinks fit. 11 (4) The Director-General is to notify the councillor concerned of any 12 decision to refer the matter to the Tribunal. 13 (5) The regulations may make provision for or with respect to the 14 reference of matters to the Tribunal under this section. 15 440K Suspension of a councillor 16 (1) A councillor, while suspended from civic office: 17 (a) is not entitled to exercise any of the functions of the civic 18 office, and 19 (b) is not entitled to any fee or other remuneration to which he 20 or she would otherwise be entitled as the holder of the civic 21 office. 22 (2) The period of suspension under an order made by the 23 Director-General commences on the date 7 days after the service 24 of the order on the councillor or the date specified in the order for 25 the commencement of the period of suspension, whichever is the 26 later. 27 440L Appeals against disciplinary action 28 (1) A councillor against whom disciplinary action is taken by the 29 Director-General may appeal to the Pecuniary Interest and 30 Disciplinary Tribunal against the decision of the 31 Director-General to take disciplinary action. 32 (2) An appeal must be made within 28 days after the day on which 33 the councillor is notified of the Director-General's decision to 34 take disciplinary action against the councillor. 35 (3) The Tribunal may stay any decision made by the 36 Director-General until such time as the Tribunal determines the 37 appeal. 38 Page 9 Local Government Amendment (Conduct) Bill 2012 Schedule 1 Amendment of Local Government Act 1993 No 30 (4) On hearing the appeal, the Tribunal may: 1 (a) confirm the decision, or 2 (b) amend the decision, or 3 (c) set aside the decision and substitute a new decision. 4 (5) If a decision is amended or substituted, the decision as amended 5 or substituted has effect as if it had been made in that form by the 6 Director-General. 7 (6) If the Tribunal sets aside a decision to suspend a councillor, any 8 fee or other remuneration withheld under the suspension is 9 payable to the councillor. 10 (7) The regulations may make provision for or with respect to the 11 making, hearing and determination of appeals under this section. 12 440M Expenses to be borne by council 13 (1) The Director-General may recover from a council the reasonable 14 expenses incurred by or in respect of the Department in the 15 conduct of an investigation into a councillor of the council under 16 this Division. 17 (2) The Director-General may make a determination of the amount 18 of the expenses referred to in subsection (1) and serve a notice on 19 the council requiring the amount so determined be paid in 20 recovery of the Department's expenses. 21 (3) An amount equal to the expenses as so determined is payable to 22 the Department as a debt by the council concerned, except as 23 determined by the Director-General. 24 (4) The council may apply to the Administrative Decisions Tribunal 25 for a review of whether any part of the expenses so determined 26 are not reasonable expenses. 27 (5) The Director-General must give effect to any decision of the 28 Tribunal on a review of the determination of the amount of the 29 expenses. 30 (6) A reference in this section to expenses incurred includes a 31 reference to remuneration paid to departmental staff. 32 440N Investigation of former councillors 33 (1) The Director-General may conduct an investigation for the 34 purpose of determining whether a former councillor engaged in 35 misconduct during the period in which the former councillor was 36 a councillor. 37 Page 10 Local Government Amendment (Conduct) Bill 2012 Amendment of Local Government Act 1993 No 30 Schedule 1 (2) For that purpose, sections 440H and 440M apply as if a reference 1 in those sections to a councillor includes a reference to a former 2 councillor. 3 (3) The Director-General may before, during or after an investigation 4 into an allegation of misconduct by a former councillor decide to 5 refer the matter to the Pecuniary Interest and Disciplinary 6 Tribunal for consideration. 7 (4) Section 440J applies to the referral of the matter to the Tribunal 8 in the same way as it applies to a referral of a matter relating to a 9 councillor to the Tribunal. 10 [13] Chapter 14, Part 3, Division 3, heading 11 Omit "misbehaviour". Insert instead "misconduct". 12 [14] Section 470A Pecuniary Interest and Disciplinary Tribunal to decide 13 whether or not to conduct proceedings into a misconduct matter 14 Omit "section 440N" from section 470A (1). Insert instead "section 440J". 15 [15] Sections 470B (1), 478 (5), 480 (1) (c), 482A (1) and 484 (1) 16 Omit "section 440N" wherever occurring. Insert instead "section 440J". 17 [16] Section 482 Decision of Pecuniary Interest and Disciplinary Tribunal-- 18 pecuniary interest matters 19 Insert after section 482 (4): 20 (5) In determining which action, if any, to take against a person 21 under this section, the Tribunal may take into account any 22 previous complaints proved against the person, any action 23 previously taken against the person and any other relevant 24 matters. 25 (6) To avoid doubt, a reference in subsection (1) to a councillor 26 includes a reference to a former councillor. 27 [17] Section 482A Decision of Pecuniary Interest and Disciplinary Tribunal-- 28 misconduct matters 29 Insert after section 482A (2) (c): 30 (c1) disqualify the councillor from holding civic office for a 31 period not exceeding 5 years, or 32 Page 11 Local Government Amendment (Conduct) Bill 2012 Schedule 1 Amendment of Local Government Act 1993 No 30 [18] Section 482A (3) and (4) 1 Insert after section 482A (2): 2 (3) In determining which action, if any, to take against a councillor, 3 the Tribunal may take into account any previous incidents of 4 misconduct by the councillor, any disciplinary action previously 5 taken against the councillor and any other relevant matters. 6 (4) In this section, councillor includes a former councillor. 7 [19] Section 485 Appeals to Supreme Court 8 Omit "section 440M" from section 485 (1). Insert instead "section 440L". 9 [20] Section 661 Failure to comply with certain directions 10 Insert "or section 440H" after "Chapter 13". 11 [21] Section 674 Remedy or restraint of breaches of this Act--other persons 12 Omit the note to section 674 (5). Insert instead: 13 Note. Section 440L confers a right of appeal to the Pecuniary Interest 14 and Disciplinary Tribunal against disciplinary action taken by the 15 Director-General against a councillor under Division 3 of Part 1 of 16 Chapter 14. 17 [22] Schedule 8 Savings, transitional and other provisions consequent on 18 the enactment of other Acts 19 Insert at the end of clause 1 (1): 20 any other Act that amends this Act 21 [23] Schedule 8 22 Insert at the end of the Schedule with appropriate Part and clause numbering: 23 Part Provisions consequent on enactment of 24 Local Government Amendment (Conduct) 25 Act 2012 26 Definition 27 In this Part, amending Act means the Local Government 28 Amendment (Conduct) Act 2012. 29 Page 12 Local Government Amendment (Conduct) Bill 2012 Amendment of Local Government Act 1993 No 30 Schedule 1 Application of amendments 1 (1) Division 3 of Part 1 of Chapter 14, as substituted by the amending 2 Act, (the new Division) extends to misconduct that occurred 3 before the commencement of the new Division if at the time that 4 it occurred it was misbehaviour under Division 3 as in force 5 before that substitution. 6 (2) However, if the Director-General or the Tribunal decides to take 7 disciplinary action or to impose a penalty in respect of 8 misconduct that occurred before the commencement of the new 9 Division, the disciplinary action or penalty must be a type of 10 disciplinary action or penalty that could have been taken or 11 imposed under this Act at the time the misconduct occurred. 12 (3) An investigation into an allegation of misbehaviour by a 13 councillor that was validly initiated but not finalised before the 14 commencement of the new Division (an ongoing investigation) 15 is taken to have been validly initiated under the new Division. 16 Accordingly, the new Division applies to the ongoing 17 investigation. 18 (4) The amendments made to Part 3 of Chapter 14 by the amending 19 Act do not apply to proceedings that were referred to the Tribunal 20 or that were commenced in the Tribunal before the 21 commencement of those amendments. Such proceedings are to 22 be dealt with as if the amendments had not been made. 23 (5) Section 440I (3) as inserted by the amending Act extends to 24 incidents of misconduct by a councillor and disciplinary action 25 taken against the councillor that occurred before the 26 commencement of that subsection. 27 (6) Sections 482 (5) and 482A (3) as inserted by the amending Act 28 extend to complaints proved against a person, incidents of 29 misconduct by a councillor and any action taken against a 30 councillor or other person before the commencement of those 31 subsections. 32 Page 13 Local Government Amendment (Conduct) Bill 2012 Schedule 1 Amendment of Local Government Act 1993 No 30 Authorised investigators 1 (1) A member of staff of the Department who is authorised to 2 conduct an investigation under section 440J (2), immediately 3 before its repeal by the amending Act, is taken, on that repeal, to 4 have been delegated the functions of the Director-General with 5 respect to investigations under section 440H. 6 (2) Nothing in this clause prevents the Director-General from 7 revoking or amending the delegation. 8 Page 14
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