Division 1 – Introductory matters

150B Overview of chapter

(1) This chapter is about—

(a) setting appropriate standards for the behaviour of councillors; and

(b) dealing with the conduct of councillors at local government meetings that does not meet the standards; and

(c) investigating and dealing with complaints about the conduct of councillors; and

(d) disciplinary action that may be taken against councillors who engage in inappropriate conduct or misconduct; and

(e) the entities that investigate and deal with complaints about the conduct of councillors.

(2) This chapter provides—

(a) that the conduct of councillors at local government meetings that does not meet appropriate standards of behaviour is generally to be dealt with by the chairperson of the meeting; and

(b) that complaints about the conduct of councillors are to be made, or referred, to the assessor for investigation; and

(c) that the assessor, after investigating a councillor’s conduct—

(i) may refer the suspected inappropriate conduct of a councillor to the local government to be dealt with; or

(ii) may apply to the conduct tribunal to decide whether the councillor engaged in misconduct and, if the conduct tribunal decides the councillor engaged in misconduct, the action to be taken to discipline the councillor; and

(d) that the assessor is to notify the Crime and Corruption Commission about suspected corrupt conduct as required under the Crime and Corruption Act 2001.

150C Definitions for chapter In this chapter—

"assessor" means the Independent Assessor appointed under section 150CV.

"behavioural standard" means a standard of behaviour for councillors set out in the code of conduct approved under section 150E.

"conduct" includes—

(a) failing to act; and

(b) a conspiracy, or attempt, to engage in conduct.

"inappropriate conduct" see section 150K.

"investigation policy", of a local government, see section 150AE(1).

"local government meeting" means a meeting of—

(a) a local government; or

(b) a committee of a local government.

"misconduct" see section 150L.

"model procedures" see section 150F.

"referral notice" see section 150AC.

"unsuitable meeting conduct" see section 150H.

Division 2 – Code of conduct

150D Minister to make code of conduct

(1) The Minister must make a code of conduct that sets out the standards of behaviour for councillors in performing their functions as councillors under this Act. Notes—

1 See section 4 which requires the Minister, in making a code of conduct under this section, to do so in a way that is consistent with, and provides results that are consistent with, the local government principles.

2 Also, see the obligations imposed on councillors under chapter 6, part 2, division 5 which apply to councillors in performing their functions as councillors under this Act.

(2) The code of conduct may also contain anything the Minister considers necessary for, or incidental to, the standards of behaviour.

150E Approval and publication of code of conduct

(1) The code of conduct does not take effect until it is approved by a regulation.

(2) The approved code of conduct must be—

(a) tabled in the Legislative Assembly with the regulation approving the code; and

(b) published on the department’s website.

Division 1 – Requirement for meeting procedures

150F Department’s chief executive to make model procedures

(1) The department’s chief executive must make procedures (the
"model procedures") for the conduct of meetings of a local government and its committees.

(2) Without limiting subsection (1), the model procedures must state—

(a) how the chairperson of a local government meeting may deal with a councillor’s unsuitable meeting conduct; and

(b) how the suspected inappropriate conduct of a councillor referred to the local government by the assessor must be dealt with at a local government meeting.

(3) The department’s chief executive must publish the model procedures on the department’s website.

150G Adopting meeting procedures

(1) A local government must either—

(a) adopt the model procedures; or

(b) prepare and adopt other procedures for the conduct of its meetings and meetings of its committees.

(2) If the local government prepares and adopts procedures under subsection (1)(b)—

(a) the procedures must not be inconsistent with the model procedures; and

(b) if there is an inconsistency, the local government is taken to have adopted the model procedures to the extent of the inconsistency.

Division 2 – Unsuitable meeting conduct

150H What is unsuitable meeting conduct The conduct of a councillor is
"unsuitable meeting conduct" if the conduct—

(a) happens during a local government meeting; and

(b) contravenes a behavioural standard.

150I Chairperson may deal with unsuitable meeting conduct

(1) This section applies if, at a local government meeting, the chairperson of the meeting reasonably believes the conduct of a councillor during the meeting is unsuitable meeting conduct.

(2) The chairperson may make 1 or more of the following orders—

(a) an order reprimanding the councillor for the conduct;

(b) an order requiring the councillor to leave the place at which the meeting is being held, including any area set aside for the public, and stay away from the place for the rest of the meeting;

(c) if the councillor fails to comply with an order to leave and stay away from the place—an order that the councillor be removed from the place.

(3) If the chairperson makes an order under subsection (2), the chairperson must ensure details of the order are recorded in the minutes of the meeting.

150J Unsuitable meeting conduct that becomes inappropriate conduct If the conduct of a councillor at a local government meeting is inappropriate conduct under section 150K(2), the local government—

(a) is not required to notify the assessor about the conduct; and

(b) may deal with the conduct under section 150AG.

Division 1 – Preliminary

150K What is inappropriate conduct

(1) The conduct of a councillor is
"inappropriate conduct" if the conduct contravenes—

(a) a behavioural standard; or

(b) a policy, procedure or resolution of the local government.

(2) Also, the conduct of a councillor is
"inappropriate conduct" if—

(a) the conduct contravenes an order of the chairperson of a local government meeting for the councillor to leave and stay away from the place at which the meeting is being held; or

(b) it is part of a course of conduct at local government meetings leading to orders for the councillor’s unsuitable meeting conduct being made on 3 occasions within a period of 1 year.

(3) For subsection (2)(b), the conduct that led to the orders being made, taken together, is the inappropriate conduct.

(4) However, inappropriate conduct does not include conduct that is—

(a) unsuitable meeting conduct, to the extent the conduct is not conduct mentioned in subsection (2); or

(b) misconduct; or

(c) corrupt conduct.

150L What is misconduct

(1) The conduct of a councillor is
"misconduct" if the conduct—

(a) involves or adversely affects, directly or indirectly, the honest and impartial performance of the councillor’s functions, or the exercise of the councillor’s powers; or

(b) is or involves—

(i) a breach of the trust placed in the councillor, either knowingly or recklessly; or

(ii) a misuse of information or material acquired in, or in connection with, the performance of the councillor’s functions, whether the misuse is for the benefit of the councillor or for the benefit, or to the detriment, of another person; or

(c) contravenes any of the following—

(i) an order of the local government or the conduct tribunal;

(ii) the acceptable requests guidelines of the local government under section 170A;

(iii) a policy of the local government about the reimbursement of expenses;

(iv) section 150R, 170(2), 171(3) or 173(4) or (5).

(2) Also, the conduct of a councillor is
"misconduct" if the conduct—

(a) is part of a course of conduct leading to the local government taking action to discipline the councillor for inappropriate conduct on 3 occasions within a period of 1 year; or

(b) is of the same type stated in an order of the local government that if the councillor engages in the same type of conduct again, it will be dealt with as misconduct.

(3) For subsection (2)(a), the conduct that led to the 3 occasions of disciplinary action, taken together, is the misconduct.

(4) It does not matter if the conduct happened outside the State.

150M Application to former councillors

(1) This chapter applies in relation to a person who was, but is no longer, a councillor if the person was a councillor when conduct the subject of a complaint or investigation is alleged to have happened.

(2) For subsection (1), a reference in this chapter to a councillor includes a reference to the person.

150N Duty to notify Crime and Corruption Commission about suspected corrupt conduct not affected To remove any doubt, it is declared that nothing in this part limits the assessor’s duty under section 38 of the Crime and Corruption Act 2001 to notify the Crime and Corruption Commission about suspected corrupt conduct.

Division 2 – Complaints about councillor conduct

150O Complaints about councillor conduct

(1) A person may make a complaint to the assessor about the conduct of a councillor.

(2) The complaint may be made to the assessor orally or in writing.

(3) Subsection (1) does not limit who a person can complain to about the conduct of a councillor. Examples—A person may complain to the Crime and Corruption Commission or the department’s chief executive about a councillor’s conduct.

150P Complaints about councillor conduct must be referred to assessor

(1) This section applies if a government entity, other than the assessor, receives a complaint about the conduct of a councillor.

(2) The government entity must—

(a) refer the complaint to the assessor; and

(b) give the assessor all information held by the entity that relates to the complaint.

(3) However, subsection (2) does not apply if—

(a) the government entity has a duty to notify the Crime and Corruption Commission of the complaint under section 38 of the Crime and Corruption Act 2001; or Note—Sections 38 to 40 of the Crime and Corruption Act 2001 state the duties of a public official to notify the Crime and Corruption Commission about corrupt conduct, subject to a direction by the Crime and Corruption Commission.

(b) the government entity has the power to investigate the complaint or the councillor’s conduct under another law and decides to carry out the investigation under that law. Example—The police service receives and investigates a complaint alleging a councillor engaged in fraud.

(4) The assessor must, as soon as practicable after receiving the complaint, give the person who made the complaint a notice that states—

(a) the assessor has received the complaint from the government entity; and

(b) the assessor will deal with the complaint under this chapter.

(5) In this section—

"government entity" includes the following—

(a) a local government;

(b) a mayor;

(c) a councillor;

(d) the chief executive officer of a local government.

150Q Further information about complaints

(1) This section applies if—

(a) a complaint about the conduct of a councillor was made or referred to the assessor under this division; and

(b) in the assessor’s opinion, the complaint does not include sufficient information for the assessor to properly investigate the conduct.

(2) The assessor may give a notice to the person who made the complaint asking the person to give the assessor further information about the complaint within a stated reasonable period.

(3) The assessor may decide not to investigate the conduct if—

(a) the person does not comply with the notice; or

(b) the person complies with the notice but, in the assessor’s opinion, there is still insufficient information to investigate the conduct.

(4) If the assessor decides not to investigate the conduct under subsection (3), the assessor must give the person who made the complaint a notice that states the assessor has decided not to investigate the conduct because there is insufficient information to do so.

Division 3 – Local government duties to notify assessor about particular conduct

150R Local government official must notify assessor about particular conduct

(1) This section applies if a local government official becomes aware of information indicating a councillor may have engaged in conduct that would be inappropriate conduct or misconduct other than—

(a) conduct mentioned in section 150J; and

(b) by receiving a complaint to which section 150P applies.

(2) The local government official must give the assessor a notice about the councillor’s conduct.

(3) In this section—

"local government official" means the following persons—

(a) a mayor;

(b) a councillor;

(c) a chief executive officer of a local government.

150S Local government must notify assessor about misconduct

(1) This section applies if a local government—

(a) in relation to a course of conduct by a councillor, takes action under section 150AG to discipline the councillor for inappropriate conduct on 3 occasions during a period of 1 year; or

(b) if the local government has previously made an order that a particular type of conduct engaged in by a councillor will be dealt with as misconduct—reasonably suspects the councillor has engaged in the same type of conduct again.

(2) The local government must give the assessor—

(a) a notice about the councillor’s conduct; and

(b) all information held by the local government that relates to the conduct.

Division 4 – Investigation of councillor conduct

150T Assessor must investigate conduct of councillor

(1) The assessor must investigate the conduct of a councillor if the conduct is the subject of—

(a) a complaint made or referred to the assessor under division 2; or

(b) a notice given to the assessor under division 3; or

(c) information given to the assessor under section 150AF(4); or

(d) a complaint referred to the assessor by the Crime and Corruption Commission. Note—The Crime and Corruption Commission may decide, under chapter 2, part 3 of the Crime and Corruption Act 2001, to refer a complaint to the assessor to deal with, whether or not in cooperation with the commission.

(2) However, subsection (1)(a) does not apply if the assessor decided, under section 150Q(3), not to investigate the conduct.

150U Assessor may initiate investigation

(1) This section applies if—

(a) the assessor is aware of information indicating a councillor may have engaged in conduct that would be inappropriate conduct or misconduct; and Examples—

• a media report alleging a councillor has behaved inappropriately

• while investigating a councillor for alleged misconduct, the assessor receives information that indicates another councillor has engaged in the same conduct

(b) the assessor has not received a complaint about the conduct; and

(c) the assessor reasonably believes—

(i) it is in the public interest to investigate the information; and

(ii) the conduct is not likely to involve corrupt conduct.

(2) The assessor may, on the assessor’s own initiative, investigate the conduct.

150V Investigative powers

(1) The assessor may exercise the assessor’s powers as an investigator under part 4 for an investigation under section 150T or 150U.

(2) Subject to part 4, the assessor may—

(a) conduct an investigation in the way the assessor considers appropriate; and

(b) make any inquiries the assessor considers appropriate.

(3) However, the assessor must conduct the investigation in a way that ensures the investigation is kept confidential to the extent practicable.

150W Decision about conduct After investigating the conduct of a councillor, the assessor may decide to—

(a) if the conduct was the subject of a complaint made or referred to the assessor under division 2—dismiss the complaint about the conduct under section 150X; or

(b) if the assessor reasonably suspects the councillor’s conduct is inappropriate conduct—refer the suspected inappropriate conduct to the local government to deal with; or

(c) if the assessor is reasonably satisfied the councillor’s conduct is misconduct—make an application to the conduct tribunal about the conduct; or

(d) take no further action in relation to the conduct under section 150Y.

150X Decision to dismiss complaint The assessor may decide to dismiss a complaint about the conduct of a councillor if the assessor is satisfied—

(a) the conduct—

(i) has already been, or is being, dealt with by another entity; or

(ii) does not constitute inappropriate conduct or misconduct; or

(b) the complaint—

(i) is frivolous or vexatious; or

(ii) was not made in good faith; or Examples—a complaint made for a mischievous purpose, recklessly or maliciously

(iii) lacks substance or credibility; or

(c) dealing with the complaint—

(i) would not be in the public interest; or

(ii) would be an unjustifiable use of resources.

150Y Decision to take no further action The assessor may decide to take no further action about the conduct of a councillor if—

(a) the conduct was not the subject of a complaint made or referred to the assessor under division 2; and

(b) the assessor is satisfied—

(i) the conduct does not constitute inappropriate conduct or misconduct; or

(ii) there is insufficient information to properly investigate the conduct or form an opinion about whether the conduct is, or may be, inappropriate conduct or misconduct; or

(iii) taking further action would be an unjustifiable use of resources.

150Z Notice about decision to dismiss complaint or take no further action

(1) This section applies if the assessor decides to—

(a) dismiss a complaint about the conduct of a councillor under section 150X; or

(b) take no further action about the conduct of a councillor under section 150Y.

(2) The assessor must give a notice about the decision to—

(a) for a decision to dismiss a complaint—the person who made the complaint, if the assessor has the person’s contact details; and

(b) the councillor; and

(c) the local government.

(3) The notice must—

(a) for a decision to dismiss a complaint—state the date the complaint was made; and

(b) briefly summarise the conduct; and

(c) briefly state the decision and the reasons for the decision; and

(d) for a complaint dismissed because it is frivolous—advise the person who made the complaint that, if the person makes the same or substantially the same complaint to the assessor again, the person commits an offence punishable by a fine of up to 85 penalty units. Note—See section 150AU about the offence of making a frivolous complaint.

150AA Notice and opportunity for councillor to respond

(1) This section applies if, under section 150W, the assessor is considering making a decision to—

(a) refer a councillor’s conduct to the local government to be dealt with; or

(b) make an application to the conduct tribunal to decide whether the councillor’s conduct is misconduct.

(2) Before making the decision, the assessor must give a notice to the councillor that—

(a) states the assessor received a complaint, notice or information about the councillor’s conduct or, on the assessor’s own initiative, investigated the councillor’s conduct; and

(b) describes the nature of the conduct; and

(c) states the assessor is considering making a decision to—

(i) refer the conduct to the local government to be dealt with; or

(ii) make an application to the conduct tribunal to decide whether the conduct is misconduct; and

(d) states that the councillor may give a statement or information to the assessor about—

(i) the conduct; and

(ii) why the assessor should not make the decision; and

(e) states the reasonable period in which the councillor may provide the statement or information.

(3) The assessor must consider any statement or information given to the assessor by the councillor under the notice before making a decision under section 150W.

Division 5 – Referral of conduct to local government

150AB Application of division This division applies if the assessor—

(a) reasonably suspects a councillor has engaged in inappropriate conduct; and

(b) decides, under section 150W(b), to refer the conduct to the local government to deal with under this division.

150AC Referral of suspected inappropriate conduct

(1) The assessor refers the councillor’s conduct to the local government to deal with by giving a notice (a
"referral notice") to the local government.

(2) The referral notice must—

(a) include details of the conduct and any complaint received about the conduct; and

(b) state why the assessor reasonably suspects the councillor has engaged in inappropriate conduct; and

(c) include information about the facts and circumstances forming the basis for the assessor’s reasonable suspicion.

(3) The referral notice may be accompanied by a recommendation from the assessor about how the local government may investigate or deal with the conduct, including, for example—

(a) the conduct should be referred to another entity for consideration; or

(b) additional information is required about the conduct; or

(c) the conduct should be dealt with by mediation.

(4) A recommendation made under subsection (3) may be inconsistent with the local government’s investigation policy.

150AD Notice about referral As soon as practicable after referring the councillor’s conduct to the local government, the assessor must give the councillor a notice that—

(a) states the assessor has referred the councillor’s conduct to the local government to deal with under this division; and

(b) attaches a copy of the referral notice.

150AE Local government must adopt investigation policy

(1) A local government must adopt, by resolution, a policy (an
"investigation policy") about how it deals with the suspected inappropriate conduct of councillors referred, by the assessor, to the local government to be dealt with.

(2) The policy must—

(a) include a procedure for investigating the suspected inappropriate conduct of councillors; and

(b) state the circumstances in which another entity may investigate the conduct; and

(c) be consistent with the principles of natural justice; and

(d) require councillors and persons who make complaints about councillors’ conduct to be given notice about the outcome of investigations.

(3) The policy may allow the local government to ask the president of the conduct tribunal to—

(a) investigate the conduct of a councillor; and

(b) make recommendations to the local government about dealing with the conduct.

Note—See section 150DU about paying the costs of a conduct tribunal member.

(4) The policy must be published on the local government’s website.

150AF Investigating suspected inappropriate conduct

(1) The local government must investigate the councillor’s conduct.

(2) The investigation must be conducted—

(a) in a way that is consistent with—

(i) any recommendation of the assessor made under section 150AC(3); and

(ii) to the extent the local government’s investigation policy is not inconsistent with a recommendation of the assessor—the investigation policy; or

(b) in another way the local government, by resolution, decides.

(3) A resolution under subsection (2)(b) must state the decision and the reasons for the decision.

(4) If, in investigating the conduct, the local government obtains information indicating the councillor may have engaged in misconduct, the local government must—

(a) give the information to the assessor for further investigation under division 4; and

(b) take no further action in relation to the conduct.

150AG Decision about inappropriate conduct

(1) After conducting the investigation, the local government must decide—

(a) whether or not the councillor has engaged in inappropriate conduct; and

(b) if the local government decides the councillor has engaged in inappropriate conduct—what action the local government will take under section 150AH to discipline the councillor.

Note—See section 257(2) which limits delegation of the local government’s power to make decisions under this section.

(2) In deciding what action to take, the local government may consider—

(a) any previous inappropriate conduct of the councillor; and

(b) any allegation made in the investigation that—

(i) was admitted, or not challenged; and

(ii) the local government is reasonably satisfied is true.

150AH Disciplinary action against councillor

(1) For section 150AG(1)(b), the local government may—

(a) order that no action be taken against the councillor; or

(b) make 1 or more of the following orders—

(i) an order that the councillor make a public admission that the councillor has engaged in inappropriate conduct;

(ii) an order reprimanding the councillor for the conduct;

(iii) an order that the councillor attend training or counselling to address the councillor’s conduct, including at the councillor’s expense;

(iv) an order that the councillor be excluded from a stated local government meeting;

(v) an order that the councillor is removed, or must resign, from a position representing the local government, other than the office of councillor; Example—The councillor is ordered to resign from an appointment representing the local government on a State board or committee.

(vi) an order that if the councillor engages in the same type of conduct again, it will be treated as misconduct;

(vii) an order that the councillor reimburse the local government for all or some of the costs arising from the councillor’s inappropriate conduct.

(2) However, the local government may not make an order mentioned in subsection (1)(b)(iii), (iv), (v), or (vi) in relation to a person who is no longer a councillor.

Division 6 – Application to conduct tribunal about misconduct

150AI Application of division This division applies if the assessor is reasonably satisfied a councillor has engaged in misconduct.

150AJ Application to conduct tribunal about alleged misconduct

(1) The assessor may apply to the conduct tribunal to decide whether the councillor has engaged in misconduct.

(2) The application must—

(a) be in writing; and

(b) include details of the alleged misconduct and any complaint received about the misconduct; and

(c) state why the assessor is reasonably satisfied the councillor has engaged in misconduct; and

(d) include information about the facts and circumstances forming the basis for the assessor’s reasonable satisfaction.

150AK Copy of application must be given to councillor

(1) The assessor must—

(a) write on a copy of the application the day, time and place of the hearing of the application; and

(b) give the copy of the application to the councillor.

(2) The assessor must make all reasonable attempts to give the copy of the application to the councillor at least 7 days before the hearing starts.

(3) If the assessor is unable to give the copy of the application to the councillor, the assessor may take other reasonable steps to ensure the councillor is aware of the day, time and place of the hearing, including, for example, by giving the copy to the local government to give to the councillor.

150AL Conduct tribunal must conduct hearing The conduct tribunal must conduct a hearing about the application.

150AM Constitution of conduct tribunal The conduct tribunal is to be constituted by—

(a) the president; or

(b) not more than 3 members of the conduct tribunal chosen by the president.

150AN Role of the assessor

(1) The assessor is a party to the hearing.

(2) The onus of proof is on the assessor to prove the councillor engaged in misconduct.

150AO Respondent The councillor is—

(a) the respondent to the application; and

(b) a party to the hearing.

150AP Conduct of hearing

(1) The hearing must be conducted in the way set out in chapter 7, part 1.

(2) The conduct tribunal may conduct the hearing from the documents brought before the conduct tribunal, without the parties or the witnesses appearing, if—

(a) the conduct tribunal considers it appropriate in all the circumstances; or

(b) the parties agree.

(3) The hearing may be about the conduct of more than 1 councillor, unless the conduct tribunal is satisfied doing so may prejudice the defence of any of the councillors.

(4) The standard of proof in the hearing is the balance of probabilities.

(5) The conduct tribunal must keep a written record of the hearing, in which it records—

(a) the statements of the councillor and all witnesses; and

(b) any reports relating to the councillor that are tendered at the hearing.

150AQ Deciding about misconduct

(1) After conducting the hearing, the conduct tribunal must decide—

(a) whether or not the councillor has engaged in misconduct; and

(b) if the conduct tribunal decides the councillor has engaged in misconduct—what action the conduct tribunal will take under section 150AR to discipline the councillor.

(2) In deciding what action to take, the conduct tribunal may consider—

(a) any previous misconduct of the councillor; and

(b) any allegation made in the hearing that—

(i) was admitted, or not challenged; and

(ii) the conduct tribunal is reasonably satisfied is true.

150AR Disciplinary action against councillor

(1) For section 150AQ(1)(b), the conduct tribunal may decide—

(a) that no action be taken against the councillor; or

(b) to make 1 or more of the following orders or recommendations—

(i) an order that the councillor make a public admission that the councillor has engaged in misconduct;

(ii) an order reprimanding the councillor for the conduct;

(iii) an order that the councillor attend training or counselling to address the councillor’s conduct, including at the expense of the councillor;

(iv) an order that the councillor pay to the local government an amount that is not more than the monetary value of 50 penalty units;

(v) an order that the councillor reimburse the local government for all or some of the costs arising from the councillor’s misconduct;

(vi) an order that the councillor is not to act as the deputy mayor or the chairperson of a committee of the local government for the remainder of the councillor’s term;

(vii) an order that the councillor is not to attend a stated number of local government meetings, up to a maximum of 3 meetings;

(viii) an order that the councillor is removed, or must resign, from a position representing the local government, other than the office of councillor; Example—The councillor is ordered to resign from an appointment representing the local government on a State board or committee.

(ix) an order that the councillor forfeit an allowance, benefit, payment or privilege paid or provided to the councillor by the local government;

(x) an order that the councillor is to forfeit, for a stated period, access to equipment or a facility provided to the councillor by the local government;

(xi) a recommendation to the Minister that the councillor be suspended from office for a stated period or from performing particular functions of the office; Examples of particular functions—

• attending council meetings or offices

• representing the council at public functions

(xii) a recommendation to the Minister that the councillor be dismissed from office.

(2) A recommendation mentioned in subsection (1)(b)(xi) may include a recommendation about the details of the suspension, including, for example, whether the councillor should be remunerated during the period of the suspension.

(3) However, the conduct tribunal may not make an order or recommendation mentioned in subsection (1)(b)(iii) or (vi) to (xii) in relation to a person who is no longer a councillor.

150AS Notices and publication of decisions and orders

(1) This section applies to a decision made by the conduct tribunal—

(a) under section 150AQ(1)(a) about whether or not a councillor has engaged in misconduct; or

(b) to take action mentioned in section 150AR(1)(b) to discipline the councillor for the misconduct.

(2) The conduct tribunal must—

(a) keep a written record of the decision and the reasons for the decision; and

(b) give a notice that states the decision and briefly states the reasons for the decision to—

(i) the assessor; and

(ii) the councillor; and

(iii) the local government; and

(iv) if the conduct tribunal’s decision relates to the conduct of a councillor that was the subject of a complaint—the person who made the complaint; and

(c) give a summary of the decision, including the reasons for the decision, to the department’s chief executive for publication on the department’s website.

(3) A notice about a decision, other than a decision to recommend the councillor’s suspension or dismissal, given to the assessor or councillor under subsection (2)(b) must be a QCAT information notice for the decision.

(4) Also, a notice about a decision given to a local government under subsection (2)(b) must include the information about the decision that is required to be included in the councillor conduct register under section 150DY.

(5) The conduct tribunal must not—

(a) give another entity any information that is part of a public interest disclosure under the Public Interest Disclosure Act 2010, unless giving the information is required or permitted by another Act; or

(b) if a decision relates to the conduct of a councillor that was the subject of a complaint—include in a summary of the decision to be published on the department’s website—

(i) the name of the person who made the complaint; or

(ii) information that could reasonably be expected to result in identification of the person.

150AT Review by QCAT A person who is entitled under section 150AS(3) to be given a QCAT information notice for a decision of the conduct tribunal may apply to QCAT, as provided under the QCAT Act, for a review of the decision.

Division 7 – Offences

150AU Frivolous complaint

(1) This section applies to a person who has been given a notice under section 150Z that advises the person that if the person makes the same or substantially the same complaint to the assessor again the person commits an offence.

(2) The person must not make the same or substantially the same complaint to the assessor again, unless the person has a reasonable excuse.

(3) In this section—

"make", a complaint to the assessor, means—

(a) make a complaint to the assessor under section 150O; or

(b) make a complaint to a government entity that is required, under section 150P, to refer the complaint to the assessor; or

(c) cause a complaint to be referred to the assessor.

150AV Other improper complaints

(1) A person must not—

(a) make a complaint about the conduct of a councillor to the assessor—

(i) vexatiously; or

(ii) not in good faith; or Examples—a complaint made for a mischievous purpose, recklessly or maliciously

(b) counsel or procure another person to make a complaint mentioned in paragraph (a) to the assessor.

(2) In this section—

"make", a complaint to the assessor, means—

(a) make a complaint to the assessor under section 150O; or

(b) make a complaint to a government entity that is required, under section 150P, to refer the complaint to the assessor; or

(c) cause a complaint to be referred to the assessor.

150AW Protection from reprisal

(1) A councillor must not take detrimental action against a protected person in reprisal for a complaint or notification about the councillor’s conduct.

(2) A councillor takes detrimental action in reprisal for a complaint or notification about the councillor’s conduct if—

(a) the councillor takes, threatens to take, or attempts to take the action because—

(i) a protected person has made, or intends to make, a complaint or notification about the councillor’s conduct; or

(ii) the councillor believes a protected person has made, or intends to make, a complaint or notification about the councillor’s conduct; or

(b) the councillor incites, permits or conspires with another person to take or threaten to take the action for either of those reasons.

(3) In determining whether a councillor takes detrimental action in reprisal, it does not matter whether a reason stated in subsection (2)(a)(i) or (ii) is the only or main reason for taking the action, as long as it is a substantial reason.

(4) An offence against subsection (1) is an indictable offence that is a misdemeanour.

(5) In this section—

"notification", about a councillor’s conduct, means a notice about the conduct given under section 150R.

"protected person" means—

(a) a councillor; or

(b) a local government employee.

Division 1 – General provisions about investigators

Division 2 – Entry of places by investigators

Division 3 – General powers of investigators after entering places

150BT Application of division

(1) The powers under this division may be exercised if an investigator enters a place under section 150BI(1).

(2) However, if the investigator enters under section 150BI(1)(a) or (c), the powers under this division are subject to any conditions of the consent or terms of the warrant.

150BU General powers

(1) The investigator may do any of the following (each a
"general power")—

(a) search any part of the place;

(b) inspect, examine or film any part of the place or anything at the place;

(c) take for examination a thing, or a sample of or from a thing, at the place;

(d) place an identifying mark in or on anything at the place;

(e) take an extract from, or copy, a document at the place, or take the document to another place to copy;

(f) produce an image or writing at the place from an electronic document or, to the extent it is not practicable, take a thing containing an electronic document to another place to produce an image or writing;

(g) take to, into or onto the place and use any person, equipment and materials the investigator reasonably requires for exercising the investigator’s powers under this chapter;

(h) remain at the place for the time necessary to achieve the purpose of the entry.

(2) The investigator may take a necessary step to allow the exercise of a general power.

(3) If the investigator takes a document from the place to copy it, the investigator must copy the document and return it to the place as soon as practicable.

(4) If the investigator takes from the place an article or device reasonably capable of producing a document from an electronic document to produce the document, the investigator must produce the document and return the article or device to the place as soon as practicable.

(5) In this section—

"examine" includes analyse, test, account, measure, weigh, grade, gauge and identify.

"film" includes photograph, videotape and record an image in another way.

"inspect", a thing, includes open the thing and examine its contents.

150BV Power to require reasonable help

(1) The investigator may make a requirement (a
"help requirement") of an occupier of the place or a person at the place to give the investigator reasonable help to exercise a general power, including, for example, to produce a document or to give information.

(2) When making the help requirement, the investigator must give the person an offence warning for the requirement.

150BW Offence to contravene help requirement

(1) A person of whom a help requirement has been made must comply with the requirement, unless the person has a reasonable excuse.

(2) It is a reasonable excuse for an individual not to comply with a help requirement if complying might tend to incriminate the individual or expose the individual to a penalty.

Division 4 – Seizure by investigators

Division 5 – Other information-obtaining powers of investigators

150CH Power to require information

(1) This section applies if an investigator reasonably believes—

(a) an offence against a conduct provision has been committed and a person may be able to give the investigator information about the commission of the offence; or

(b) a person has information reasonably necessary for the investigator to investigate the conduct of a councillor.

(2) The investigator may, by notice given to the person, require the person to give the investigator the information by a stated reasonable time.

(3) When making a requirement of a person under subsection (2), the investigator must give the person an offence warning for the requirement.

(4) For information that is an electronic document, compliance with the requirement requires the giving of a clear image or written version of the electronic document.

(5) In this section—

"information" includes a document.

150CI Offence to contravene information requirement

(1) A person of whom a requirement is made under section 150CH(2) must comply with the requirement, unless the person has a reasonable excuse.

(2) It is a reasonable excuse for an individual not to give the information if giving the information might tend to incriminate the individual or expose the individual to a penalty.

150CJ Power to require attendance

(1) The investigator may require a person to—

(a) attend a meeting with the investigator at a stated reasonable time and place; and

(b) answer questions, related to the investigation of the conduct of a councillor or an offence against a conduct provision, asked by the investigator.

(2) When making a requirement of a person under subsection (1), the investigator must give the person an offence warning for the requirement.

(3) A person of whom a requirement is made under subsection (1) must comply with the requirement, unless the person has a reasonable excuse.

(4) It is a reasonable excuse for an individual to fail to answer a question if answering the question might tend to incriminate the individual or expose the individual to a penalty.

150CK Notice about confidentiality

(1) This section applies if an investigator intends to, or does, exercise a power—

(a) under section 150CH requiring a person to give information to the investigator; or

(b) under section 150CJ requiring a person to attend a place and answer questions.

(2) The assessor may give a notice to the person stating that the fact of the person’s attendance, or information given by the person, is confidential information.

(3) However, the assessor may give the notice to the person only if the assessor reasonably believes the notice is necessary—

(a) to prevent the commission of an offence; or

(b) to ensure the investigation of a councillor’s conduct is kept confidential.

(4) The person must not disclose the confidential information to another person, unless the disclosure is permitted under subsection (5) or the person has a reasonable excuse.

(5) The person may disclose the confidential information if—

(a) the disclosure was made before the person received the notice; or

(b) the disclosure is made to—

(i) obtain legal advice; or

(ii) obtain information to comply with the investigator’s requirement; or

(iii) comply with another lawful obligation to disclose the information.

(6) However, disclosure by a person (the
"discloser") under subsection (5)(b)(ii) is permitted only if the discloser informs another person to whom the disclosure is made that the information is confidential information under this section.

Division 6 – Miscellaneous provisions relating to investigators

150CL Duty to avoid inconvenience and minimise damage In exercising a power, an investigator must take all reasonable steps to cause as little inconvenience, and do as little damage, as possible. Note—See also section 150CN.

150CM Notice about damage

(1) This section applies if—

(a) an investigator damages something when exercising, or purporting to exercise, a power; or

(b) a person (the
"assistant") acting under the direction or authority of an investigator damages something.

(2) However, this section does not apply to damage the investigator reasonably considers is trivial or if the investigator reasonably believes—

(a) there is no-one apparently in possession of the thing; or

(b) the thing has been abandoned.

(3) The investigator must give a notice about the damage to a person who appears to the investigator to be an owner, or person in control, of the thing.

(4) However, if for any reason it is not practicable to comply with subsection (3), the investigator must—

(a) leave the notice at the place at which the damage happened; and

(b) ensure it is left in a conspicuous position and in a reasonably secure way.

(5) The investigator may delay complying with subsection (3) or (4) if the investigator reasonably suspects complying with the subsection may frustrate or otherwise hinder an investigation by the investigator.

(6) The delay may be only for so long as the investigator continues to have the reasonable suspicion and remains in the vicinity of the place at which the damage happened.

(7) If the investigator believes the damage was caused by a latent defect in the thing or other circumstances beyond the control of the investigator or the assistant, the investigator may state the belief in the notice.

(8) The notice must state—

(a) particulars of the damage; and

(b) that the person who suffered the damage may claim compensation under section 150CN.

150CN Compensation

(1) A person may claim compensation from the State if the person incurs loss because of the exercise, or purported exercise, of a power by or for an investigator, including a loss arising from compliance with a requirement made of the person under division 3, 4 or 5.

(2) The compensation may be claimed and ordered in a proceeding—

(a) brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or

(b) for an offence against a conduct provision, or another offence relating to the conduct of a councillor, the investigation of which gave rise to the claim for compensation.

(3) A court may order the payment of compensation only if it is satisfied it is just to make the order in the circumstances of the particular case.

(4) In considering whether it is just to order compensation, the court must have regard to—

(a) any relevant offence committed by the claimant; and

(b) whether the loss arose from a lawful seizure or lawful forfeiture.

(5) A regulation may prescribe other matters that may, or must, be taken into account by the court when considering whether it is just to order compensation.

(6) Section 150CL does not provide for a statutory right of compensation other than as provided by this section.

(7) In this section—

"loss" includes costs and damage.

Division 7 – Review

Division 1 – Independent Assessor and Office of the Independent Assessor

Division 2 – Councillor Conduct Tribunal

150DK Establishment The Councillor Conduct Tribunal (the
"conduct tribunal") is established.

150DL Functions

(1) The functions of the conduct tribunal are—

(a) at the request of a local government—

(i) to investigate the suspected inappropriate conduct of a councillor referred to the local government, by the assessor, to be dealt with by the local government; and

(ii) to make recommendations to the local government about dealing with the conduct; and

(b) another function related to a function mentioned in paragraph (a) or (c) directed, in writing, by the Minister; and

(c) any other functions given to the conduct tribunal under this Act.

(2) A member of the conduct tribunal chosen by the president may constitute the conduct tribunal to perform the functions mentioned in subsection (1)(a) for a particular request.

150DM Membership of conduct tribunal The members of the conduct tribunal are—

(a) the president; and

(b) the casual members.

150DN Appointment of president and casual members

(1) The Governor in Council may appoint a person to be the president of the conduct tribunal.

(2) The Governor in Council may appoint the number of casual members the Governor in Council considers appropriate.

(3) The Minister may recommend the appointment of a person as a member of the conduct tribunal only if the person is qualified under section 150DO to be a member.

150DO Qualifications for membership

(1) A person is qualified to be a member of the conduct tribunal only if the person has extensive knowledge of, and experience in, any of the following—

(a) local government;

(b) investigations;

(c) law;

(d) public administration;

(e) public sector ethics.

(2) However, a person is not qualified to be a member if the person—

(a) is a councillor; or

(b) is a nominee for election as a councillor; or

(c) accepts an appointment as a councillor; or

(d) is an employee of a local government; or

(e) is a contractor of a local government; or

(f) is a consultant engaged by a local government; or

(g) is a member of an Australian Parliament; or

(h) is a nominee for election as a member of an Australian Parliament; or

(i) is a member of a political party; or

(j) has a conviction for an indictable offence, other than a spent conviction; or

(k) is an insolvent under administration; or

(l) is a person prescribed by regulation for this subsection.

150DP Term of office Subject to this division, a member holds office for the term, of not more than 4 years, stated in the member’s instrument of appointment.

150DQ Conditions of appointment A member—

(a) is to be paid the remuneration and allowances decided by the Governor in Council; and

(b) holds office on the terms and conditions decided by the Governor in Council, to the extent the terms and conditions are not provided for by this Act.

150DR Vacancy of office The office of a member becomes vacant if the person holding the office—

(a) completes a term of office and is not reappointed; or

(b) is not qualified under section 150DO to hold the office; or

(c) is removed from office by the Governor in Council for misbehaviour or physical or mental incapacity; or

(d) resigns the office by signed notice given to the Minister.

150DS Acting president

(1) The Minister may appoint a casual member to act as the president during—

(a) a vacancy in the office of the president; or

(b) a period the president is absent, or can not perform the duties of the office because of a conflict of interest or for any other reason.

(2) The casual member can not be appointed for more than 3 months in a 12-month period.

150DT Conflict of interest

(1) This section applies if a member has an interest that may conflict with a fair and impartial hearing about the conduct of a councillor.

(2) The member must not take part, or take further part, in consideration of the matter.

(3) As soon as practicable after the member becomes aware this section applies, the member must give a notice about the matter—

(a) if the member is the president—to the Minister; or

(b) otherwise—to the president.

(4) If the president gives the Minister a notice about a conflict of interest in relation to a matter, the Minister must nominate a casual member to act as the president under section 150DS in relation to the matter.

150DU Costs of conduct tribunal to be met by local government

(1) A local government must pay the costs of the conduct tribunal in relation to the conduct tribunal—

(a) conducting a hearing about the misconduct of a councillor under part 3, division 6; or

(b) at the request of the local government, investigating the suspected inappropriate conduct of a councillor and making recommendations to the local government about dealing with the conduct.

(2) For subsection (1), the costs of the conduct tribunal include the remuneration, allowances and expenses paid to a member of the conduct tribunal conducting the hearing or investigation, or making the recommendations.

150DV Practice directions

(1) The president may issue practice directions for conducting a hearing.

(2) A practice direction must not be inconsistent with this Act or any requirements prescribed by regulation about procedures for a hearing.

(3) The practice directions must be published on the department’s website.

150DW Assistance from departmental staff The department’s chief executive must make available to the conduct tribunal the help from public service employees employed in the department that the conduct tribunal needs to effectively perform its functions.

Division 1 – Councillor conduct register

150DX Local governments to keep and publish register

(1) A local government must keep an up-to-date register (a
"councillor conduct register") about the following matters for the local government—

(a) orders made about the unsuitable meeting conduct of councillors at its local government meetings;

(b) decisions about the suspected inappropriate conduct of councillors referred to the local government under part 3, division 5;

(c) decisions about whether or not councillors engaged in misconduct made by the conduct tribunal under part 3, division 6;

(d) complaints about the conduct of councillors dismissed by the assessor;

(e) decisions to take no further action in relation to the conduct of councillors investigated by the assessor.

(2) The local government must—

(a) publish the register on the local government’s website; and

(b) ensure the public may inspect the register, or purchase a copy of an entry in the register, at the local government’s public office.

(3) However, subsection (2) does not apply to information recorded in the register that is part of a public interest disclosure under the Public Interest Disclosure Act 2010.

150DY Content of register—decisions

(1) This section applies to each of the following decisions—

(a) a decision by a chairperson of a local government meeting to make an order against a councillor under section 150I(2) for unsuitable meeting conduct;

(b) a decision by the local government about the suspected inappropriate conduct of a councillor referred to the local government under part 3, division 5 and any action taken to discipline the councillor;

(c) a decision about the misconduct of a councillor made by the conduct tribunal under part 3, division 6 and any action taken to discipline the councillor;

(d) a decision by the assessor to take no further action in relation to the conduct of a councillor after conducting an investigation.

(2) The councillor conduct register must include the following details for the decision—

(a) a summary of the decision and the reasons for the decision;

(b) the name of the councillor about whom the decision was made;

(c) the date of the decision.

Notes—

1 See section 150AS(2)(b) and (4) for the conduct tribunal’s obligation to give the local government a notice about a decision of the conduct tribunal.

2 Also, see section 150Z for the assessor’s obligation to give the local government a notice about a decision to take no further action.

(3) However, the name of the councillor whose conduct is the subject of the decision may be included in the entry in the register for the decision only if—

(a) the local government or conduct tribunal decided the councillor engaged in inappropriate conduct or misconduct; or

(b) the councillor agrees to the councillor’s name being included.

(4) If a decision relates to the conduct of a councillor that was the subject of a complaint, a summary of the decision included in the register must not include—

(a) the name of the person who made the complaint; or

(b) information that could reasonably be expected to result in identification of the person.

150DZ Content of register—dismissed complaints

(1) The councillor conduct register must include the following particulars for each complaint about the conduct of a councillor dismissed by the assessor—

(a) the date the complaint was made;

(b) a summary of the complaint;

(c) a statement about why the complaint was dismissed.

Note—See section 150Z for the assessor’s obligation to give a notice about the dismissal of a complaint to the local government.

(2) However, the name of the councillor against whom the complaint was made is not to be included in the entry in the register for the complaint, unless the councillor agrees to the councillor’s name being included.

(3) A summary of a complaint included in the register must not include—

(a) the name of the person who made the complaint; or

(b) information that could reasonably be expected to result in identification of the person.

Division 2 – Other provisions

150EA Secrecy

(1) This section applies to a person who—

(a) is, or has been, the assessor, an investigator or a staff member of the Office of the Independent Assessor; and

(b) obtains confidential information in the course of performing, or because of, the person’s functions under this Act.

(2) The person must not—

(a) make a record of the confidential information; or

(b) directly or indirectly disclose the confidential information to another person; or

(c) use the confidential information to benefit a person or cause detriment to a person.

(3) However, subsection (2) does not apply to a person if the record is made, or the confidential information is disclosed or used—

(a) in the performance of the person’s functions under this Act; or

(b) with the consent of the person to whom the information relates; or

(c) as otherwise required or permitted by law.

(4) In this section—

"confidential information" means information, other than information that is publicly available—

(a) about a person’s personal affairs or reputation; or

(b) that would be likely to damage the commercial activities of a person to whom the information relates.

150EB Annual report

(1) As soon as practicable after the end of each financial year, but no later than 3 months after the end of the financial year, the assessor must give the Minister a written report about the operation of the Office of the Independent Assessor during the year.

(2) Without limiting subsection (1), the report must include—

(a) a description of the following matters for the year—

(i) complaints made, or referred, to the assessor about the conduct of councillors;

(ii) complaints dismissed by the assessor;

(iii) investigations conducted by the office;

(iv) decisions made by the assessor to take no further action after conducting an investigation;

(v) suspected corrupt conduct notified to the Crime and Corruption Commission by the assessor;

(vi) suspected inappropriate conduct referred by the assessor to local governments to be dealt with;

(vii) decisions about whether councillors engaged in misconduct made by the conduct tribunal; and

(b) details about the number of times each power under part 4 was exercised by the assessor and other investigators during the year; and

(c) details of other functions performed by the assessor during the year.

(3) The report must be prepared in a way that does not disclose the identity of a person investigated.

(4) The Minister must ensure a copy of the report is tabled in the Legislative Assembly as soon as practicable after the report is given to the Minister.

150EC Approved forms The assessor may approve forms for use under this chapter.