Chapter 13 How are councils made accountable for their actions?
Introduction. This Chapter sets out the mechanisms by which a council is made accountable for its actions.Each year, a council is required to adopt a management plan that sets out its proposed strategy for at least the following 3 years, together with its proposed revenue policy for the next year. The management plan is to include a statement of the council’s objectives and performance targets for its principal activities.
Public notice is to be given by the council of its management plan.
A council is required to have 2 funds (a consolidated fund and a trust fund). It must keep proper accounts which are to be audited annually.
Each year, a council is required to prepare an annual report on its work and activities.
The Minister retains a supervisory role in relation to councils. The Minister and the Director-General are able to call for further information from councils, and the Director-General is able to authorise persons to investigate and report on matters connected with a council’s work and activities and to direct a council to act on any recommendations contained in such a report.
Members of the general public are entitled to inspect a wide range of council documents (see section 12). Members of the general public are also entitled, under the Freedom of Information Act 1989, to be given access to certain other documents held by a council. They are also entitled to require the correction of certain kinds of information in the event that the information is incomplete, incorrect, out of date or misleading.
This Chapter applies to the functions conferred or imposed on a council by or under this or any other Act or law.Note. Examples of functions conferred or imposed on councils by or under other Acts are set out in the Note to section 22.
402 Preparation of draft management plans
During each year, a council must prepare a draft management plan with respect to:(a) the council’s activities for at least the next 3 years, and(b) the council’s revenue policy for the next year.
403 Contents of draft management plan with respect to council’s work and activities
(1) A draft management plan must contain the following statements with respect to the council’s activities for the period to which it relates:• a statement of the principal activities that the council proposes to conduct• a statement of the objectives and performance targets for each of its principal activities• a statement of the means by which the council proposes to achieve these targets• a statement of the manner in which the council proposes to assess its performance in respect of each of its principal activities• statements with respect to such other matters as may be prescribed by the regulations.(2) The statement of principal activities must include the following particulars:• capital works projects to be carried out by the council• services to be provided by the council• asset replacement programs to be implemented by the council• sales of assets to be conducted by the council• activities of a business or commercial nature to be undertaken by the council• human resource activities (such as training programs) to be undertaken by the council• activities to properly manage, develop, protect, restore, enhance and conserve the environment in a manner that is consistent with and promotes the principles of ecologically sustainable development• activities in response to, and to address priorities identified in, the council’s current comprehensive report as to the state of the environment and any other relevant reports• programs to be undertaken by the council to implement its equal employment opportunity management plan.Note. Equal employment opportunity plans are dealt with in Part 4 of Chapter 11.
404 Contents of draft management plan with respect to council’s revenue policy
(1) A draft management plan must include the following statements with respect to the council’s revenue policy for the next year, subject to the regulations:• a statement containing a detailed estimate of the council’s income and expenditure• a statement with respect to each ordinary rate and each special rate proposed to be leviedNote. The annual statement of revenue policy may include a note that the estimated yield from ordinary rates is subject to the specification of a percentage variation by the Minister if that variation has not been published in the Gazette when public notice of the annual statement of revenue policy is given.• a statement with respect to each charge proposed to be levied• a statement of the types of fees proposed to be charged by the council and the amounts of each such fee• a statement of the council’s pricing policy with respect to the goods and services provided by it• a statement of the amounts or rates proposed to be charged for the carrying out by the council of work on private land• a statement of the amounts of any proposed borrowings (other than internal borrowing), the sources from which they are proposed to be borrowed and the means by which they are proposed to be secured• statements with respect to such other matters as may be prescribed by the regulations.(2) The statement with respect to an ordinary or special rate proposed to be levied must include the following particulars:• the ad valorem amount (the amount in the dollar) of the rate• whether the rate is to have a base amount and, if so:— the amount in dollars of the base amount, and— the percentage, in conformity with section 500, of the total amount payable by the levying of the rate, or, in the case of the rate, the rate for the category or sub-category concerned of the ordinary rate, that the levying of the base amount will produce• the estimated yield of the rate• in the case of a special rate—the purpose for which the rate is to be levied• the categories or sub-categories of land in respect of which the council proposes to levy the rate.(3) The statement with respect to each charge proposed to be levied must include the following particulars:• the amount or rate per unit of the charge• the differing amounts for the charge, if relevant• the minimum amount or amounts of the charge, if relevant• the estimated yield of the charge.(4) A draft management plan must include a statement containing a general estimate of the council’s income and expenditure for the second and subsequent years for which the draft management plan is prepared.(5) The statement of fees and the statement of the pricing policy need not include information which could confer a commercial advantage on a competitor of the council.
405 Public notice of draft management plan
(1) A council must give public notice of its draft management plan after it is prepared.(2) The period of public exhibition must not be less than 28 days.(3) The public notice must specify that submissions may be made to the council at any time during the period of public exhibition.(4) The council must publicly exhibit the draft management plan in accordance with its notice.(5) During the period of public exhibition, the council must have for inspection at its office (and at such other places as it may determine) a map which shows those parts of its area to which each category and sub-category of the ordinary rate and each special rate included in the draft management plan applies.
406 Adoption of management plan
(1) Before the end of each year, a council must adopt a management plan for the following year after it has been prepared and exhibited in accordance with this Part and any other matters it considers relevant.(2) In deciding on the final plan to be adopted, a council must take into consideration any submissions that have been made concerning the draft management plan prepared and exhibited in accordance with this Part.
407 General manager to report periodically on implementation of management plan
(1) The general manager must report to the council within 2 months after the end of each quarter as to the extent to which the performance targets set by the council’s current management plan have been achieved during that quarter.(2) (Repealed)
A council must have 2 separate funds:• a consolidated fund• a trust fund.
(1) All money and property received by a council must be held in the council’s consolidated fund unless it is required to be held in the council’s trust fund.(2) Money and property held in the council’s consolidated fund may be applied towards any purpose allowed by this or any other Act.(3) However:(a) money that has been received as a result of the levying of a special rate or charge may not be used otherwise than for the purpose for which the rate or charge was levied, and(b) money that is subject to the provisions of this or any other Act (being provisions that state that the money may be used only for a specific purpose) may be used only for that purpose, and(c) money that has been received from the Government or from a public authority by way of a specific purpose advance or grant may not, except with the consent of the Government or public authority, be used otherwise than for that specific purpose, and(d) money that has been received as rents, profits or other proceeds from a lease, licence or other estate granted in respect of community land must be expended on community land acquisition and community land management requirements, and may be used for any other purpose only to the extent that such receipts are surplus to the outgoings necessary to meet those requirements.(4) Pending its expenditure for the purpose for which it is held, money of the kind referred to in subsection (3) (a), (b) or (c) may not be held otherwise than in an account with a bank, building society or credit union or in an investment in which such money is, by or under this or any other Act, authorised to be invested.
410 Alternative use of money raised by special rates or charges
(1) This section applies to money that has been received by a council as a result of the levying of a special rate or a charge.(2) If the special rate or charge has been discontinued and the purpose for which the money was received has been achieved, or is no longer required to be achieved, any remaining money may be used by the council for any other purpose if, and only if:(a) a proposal to that effect has been included in a draft management plan for the current year or for a previous year, and(b) public notice of the fact that the proposal was included in the management plan adopted by the council for that year has been published in a newspaper.(3) Money that is not yet required for the purpose for which it was received may be lent (by way of internal loan) for use by the council for any other purpose if, and only if, its use for that other purpose is approved by the Minister.(4) In granting such an approval, the Minister must impose conditions as to the time within which the internal loan must be repaid and as to any additional amount, in the nature of interest, that is to be paid in connection with that loan.
(1) All money and property received by a council in trust must be held in the council’s trust fund.(2) Money or property held in the council’s trust fund must be applied for the purposes, or in accordance with the trusts, relating to it.
Division 2 Accounting records, financial reports and auditing
(1) A council must keep such accounting records as are necessary to correctly record and explain its financial transactions and its financial position.(2) In particular, a council must keep its accounting records in a manner and form that facilitate:(a) the preparation of financial reports that present fairly its financial position and the results of its operations, and(b) the convenient and proper auditing of those reports.
413 Preparation of financial reports
(1) A council must prepare financial reports for each year, and must refer them for audit as soon as practicable (having regard to the requirements of section 416 (1)) after the end of that year.Note. Under section 416 (1), a council’s financial reports for a year must be prepared and audited within 4 months after the end of the year concerned, and under section 428 (2) (a) the audited financial reports must be included in the council’s annual report.(2) A council’s financial reports must include:(a) a general purpose financial report, and(b) any other matter prescribed by the regulations, and(c) a statement in the approved form by the council as to its opinion on the general purpose financial report.(3) The general purpose financial report must be prepared in accordance with this Act and the regulations and the requirements of:(a) the publications issued by the Australian Accounting Research Foundation, on behalf of the Australian Society of Certified Practising Accountants and the Institute of Chartered Accountants in Australia, under the title Australian Accounting Standards, as in force for the time being, subject to the regulations, and(b) such other standards as may be prescribed by the regulations.(4) (Repealed)
415 Auditing of financial reports
(1) A council’s auditor must audit the council’s financial reports as soon as practicable (having regard to the requirements of section 416 (1)) after they are referred for audit.(2) A council’s financial reports must be audited in accordance with the requirements of:(a) the publications issued by the Australian Accounting Research Foundation, on behalf of the Australian Society of Certified Practising Accountants and the Institute of Chartered Accountants in Australia, under the titles Statements of Auditing Standards and Statements of Auditing Practice, as in force for the time being, subject to the regulations, and(b) such other standards as may be prescribed by the regulations.(3) The regulations may prescribe matters that an auditor must consider and provide comment on in auditing a council’s financial reports.
416 Time for preparation and auditing of financial reports
(1) A council’s financial reports for a year must be prepared and audited within the period of 4 months after the end of that year.(2) A council may from time to time apply to the Director-General for an extension of that period.(3) A council must make such an application if requested to do so by its auditor.(4) Before deciding whether or not to grant an extension, the Director-General may require the council to give reasons, additional to those set out in the application, as to why the extension should be granted.(5) The Director-General may grant an extension of such period as, in the opinion of the Director-General, is necessary in the particular circumstances of the case.(6) A council must notify its auditor of any application for an extension made under this section and of the outcome of the application.
(1) A council’s auditor must prepare 2 reports:• a report on the general purpose financial report• a report on the conduct of the audit.(2) The report on the council’s financial reports must include the following:(a) a statement as to whether, in the opinion of the auditor, the council’s accounting records have been kept in accordance with the requirements of this Division,(b) a statement as to whether, in the opinion of the auditor, the council’s financial reports:(i) have been prepared in accordance with the requirements of this Division, and(ii) are consistent with the council’s accounting records, and(iii) present fairly the council’s financial position and the results of its operations,(c) a statement as to whether, in the opinion of the auditor, any information relevant to the conduct of the audit has been unobtainable by the auditor,(d) a statement setting out particulars of any material deficiency in the accounting records or financial reports that has come to light in the course of the audit.(3) The report on the conduct of the audit may contain such statements, comments and recommendations as to the conduct of the audit of the council’s financial reports as the auditor considers appropriate to include in the report.(4) As soon as practicable after completing the audit, the auditor must send a copy of the auditor’s reports to the Director-General and to the council.(5) As soon as practicable after receiving the auditor’s reports, the council must send a copy of the auditor’s report on the council’s financial reports, together with a copy of the council’s audited financial reports, to the Director-General and to the Australian Bureau of Statistics.
418 Public notice to be given of presentation of financial reports
(1) As soon as practicable after a council receives a copy of the auditor’s reports:(a) it must fix a date for the meeting at which it proposes to present its audited financial reports, together with the auditor’s reports, to the public, and(b) it must give public notice of the date so fixed.(2) The date fixed for the meeting must be at least 7 days after the date on which the notice is given, but not more than 5 weeks after the auditor’s reports are given to the council.Note. Unless an extension is granted under section 416, the meeting must be held on or before 5 December after the end of the year to which the reports relate.(3) The public notice must include:(a) a statement that the business of the meeting will include the presentation of the audited financial reports and the auditor’s reports, and(b) a summary, in the approved form, of the financial reports, and(c) a statement to the effect that any person may, in accordance with section 420, make submissions (within the time provided by that section and specified in the statement) to the council with respect to the council’s audited financial reports or with respect to the auditor’s reports.(4) Copies of the council’s audited financial reports, together with the auditor’s reports, must be kept available at the office of the council for inspection by members of the public on and from the date on which public notice of the holding of the meeting is given and until the day after the meeting (or any postponement of the meeting).
419 Presentation of the council’s financial reports
(1) A council must present its audited financial reports, together with the auditor’s reports, at a meeting of the council held on the date fixed for the meeting.(2) The council’s auditor may, and if so required in writing by the council must, attend the meeting at which the financial reports are presented.
420 Submissions on financial reports and auditor’s reports
(1) Any person may make submissions to the council with respect to the council’s audited financial reports or with respect to the auditor’s reports.(2) A submission must be in writing and must be lodged with the council within 7 days after the date on which those reports are presented to the public.(3) The council must ensure that copies of all submissions received by it are referred to the auditor.(4) The council may take such action as it considers appropriate with respect to any such submission, including the giving of notice to the Director-General of any matter that appears to require amendment of the council’s financial reports.
(1) A council’s auditor may, at any time during the audit of a council’s financial reports, report to the Minister on any matter relating to those reports or to the conduct of the audit.(2) The auditor must give the council a copy of any report made to the Minister under this section.
(1) A council must appoint a person as its auditor.(2) A council’s auditor may be:(a) an individual who is a registered company auditor, or(b) a partnership whose members or employees include a registered company auditor, or(c) a corporation whose employees include a registered company auditor.(3) If the council’s auditor is a partnership, any member or employee of the partnership may act as the council’s auditor as long as he or she is a registered company auditor.(4) If the council’s auditor is a corporation, any employee of the corporation may act as the council’s auditor as long as he or she is a registered company auditor.(5) An auditor may not be appointed unless tenders for the appointment have been called.(6) In this section, registered company auditor has the same meaning as it has in the Corporations Act 2001 of the Commonwealth and includes the Auditor-General.
(1) A person may not be appointed as a council’s auditor:(a) in the case of an individual, if he or she is a disqualified person, or(b) in the case of a partnership, if any member or employee of the partnership is a disqualified person, or(c) in the case of a corporation, if the corporation or any employee of the corporation is a disqualified person.(2) In this section, disqualified person means a person:(a) who is a councillor or an employee of the council, or(b) who is in debt to the council otherwise than for rates or charges owed by the person as a ratepayer, or(c) who has a contractual arrangement with the council that (if the person were the council’s auditor) might reasonably be seen to give rise to a conflict between the person’s duties as an auditor and the person’s interests under the arrangement.
(1) A council’s auditor holds office for 6 years and, if otherwise qualified, is eligible for re-appointment subject to this section.(2) The office of auditor becomes vacant if the auditor:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) ceases to be qualified to hold office as auditor or becomes a disqualified person within the meaning of section 423, or(d) resigns office by notice in writing addressed to the council, or(e) becomes a mentally incapacitated person, or(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(h) is removed by the council in accordance with this section.(3) The council may remove an auditor from office only with the consent of the Minister.(4) If the office of auditor becomes vacant, the council must appoint a qualified person to fill the vacancy.
425 Auditor-General to be auditor in certain instances
(1) The Auditor-General is authorised to audit a council’s financial reports if the council fails to appoint an auditor or during any vacancy in the office of auditor.(2) The costs certified by the Auditor-General as having been incurred by the Auditor-General in auditing a council’s financial reports in accordance with the authorisation given by this section must be paid by the council.
426 Auditor may exercise general power of inspecting accounting records
(1) A council’s auditor:(a) may inspect the council’s accounting records and other records necessary in order to carry out the auditor’s functions at any time, and(b) must inspect those records at such periods as may be prescribed by the regulations,for the purpose of forming an opinion as to whether the requirements of this Act and the regulations are being complied with.(2) The auditor may report to the council or to the Minister on the results of the inspection.(3) Such a report may deal with such matters concerning the council’s accounting and other records as, in the auditor’s opinion, should be dealt with by the report.(4) The auditor must give the council a copy of any report made under this section to the Minister.
(1) When exercising the functions conferred on a council’s auditor by this Part, a council’s auditor is entitled at all reasonable times to full and free access to the council’s accounting records and other records necessary in order to carry out the auditor’s functions and may direct a councillor, the general manager or any other member of staff of the council:(a) to produce to the auditor any document relating to those records that is in that person’s custody or under that person’s control, or(b) to grant to the auditor such authorities as may be necessary to enable the auditor to gain access to any document relating to those records that is in the custody or control of any bank, building society, credit union or other person, or(c) to answer any question,being a document or question that, in the opinion of the auditor, is relevant to the carrying out of the auditor’s functions.(2) An auditor may make copies of or take extracts from any document to which the auditor gains access under this section.
(1) Within 5 months after the end of each year, a council must prepare a report as to its achievements with respect to the objectives and performance targets set out in its management plan for that year.(2) A report must contain the following:(a) a copy of the council’s audited financial reports,(b) a comparison of the council’s actual performance of its principal activities during that year (measured in accordance with the criteria set out in the relevant management plan) with the council’s projected performance of those activities (as contained in the relevant management plan), together with a statement of the reasons for any difference between them,(c) a report as to the state of the environment in the area, and in particular in relation to the following environmental sectors:(i) land,(ii) air,(iii) water,(iv) biodiversity,(v) waste,(vi) noise,(vii) Aboriginal heritage,(viii) non-Aboriginal heritage,with particular reference, with regard to each such environmental sector, to:(ix) management plans relating to the environment,(x) special council projects relating to the environment,(xi) the environmental impact of council activities,Note. Section 70 (2) of the Threatened Species Conservation Act 1995 requires a council that is identified in a recovery plan (within the meaning of that Act) as responsible for the implementation of measures included in the plan to report on action taken by it to implement those measures in its annual report as to the state of the environment of its area.Section 87 (2) of that Act imposes the same requirement in relation to threat abatement plans (within the meaning of that Act).
(d) a report on the condition of the public works (including public buildings, public roads and water, sewerage and drainage works) under the control of the council as at the end of that year, together with:(i) an estimate (at current values) of the amount of money required to bring the works up to a satisfactory standard, and(ii) an estimate (at current values) of the annual expense of maintaining the works at that standard, and(iii) the council’s program of maintenance for that year in respect of the works,(e) a summary of the amounts incurred by the council during that year in relation to legal proceedings taken by or against the council (including amounts, costs and expenses paid or received by way of out of court settlements, other than those the terms of which are not to be disclosed) and a summary of the state of progress of each legal proceeding and (if it has been finalised) the result,(f) the total amount of money expended during the year on mayoral fees and councillor fees, the council’s policy on the provision of facilities for use by councillors and the payment of councillors’ expenses, together with a statement of the total amount of money expended during that year on the provision of such facilities and the payment of such expenses,(g) a statement of the number of senior staff employed by the council during that year, together with a statement of the total amount of money payable in respect of the employment of senior staff, including money payable for salary, for the provision of fringe benefits and for all other on-costs connected with their employment,(h) details of each contract awarded by the council during that year (whether as a result of tender or otherwise) other than:(i) employment contracts (that is, contracts of service but not contracts for services), and(ii) contracts for less than $100,000 or such other amount as may be prescribed by the regulations,including the name of the contractor, the nature of the goods or services supplied by the contractor and the total amount payable to the contractor under the contract,(i) (Repealed)(i1) a report on the bush fire hazard reduction activities of the council during that year, including activities carried out under a bush fire management plan approved under the Rural Fires Act 1997,(j) details of programs undertaken by the council during that year to promote services and access to services for people with diverse cultural and linguistic backgrounds in a manner that is consistent with the principles of multiculturalism,(k) details or a summary (as required by section 67 (3)) of resolutions made during that year under section 67 concerning work carried out on private land and details or a summary of such work if the cost of the work has been fully or partly subsidised by the council, together with a statement of the total amount by which the council has subsidised any such work during that year,(l) the total amount contributed or otherwise granted under section 356,(m) a statement of the human resource activities (such as training programs) undertaken by the council during that year,(n) a statement of the activities undertaken by the council during that year to implement its equal employment opportunity management plan,(o) a statement of all external bodies (such as county councils) that during that year exercised functions delegated by the council,(p) a statement of all companies in which the council (whether alone or in conjunction with other councils) held a controlling interest during that year,(q) a statement of all partnerships, co-operatives or other joint ventures to which the council was a party during that year,(r) such other information as the regulations may require.(3) Copies of the council’s annual report must be furnished to the Minister and to such other persons and bodies as are required by the regulations to be furnished with the report.
Part 5 Inquiries, reviews and surcharging
Division 1 Inquiries and reviews
429 Minister or Director-General may require councils to provide information
(1) The Minister or the Director-General may at any time require a council to provide such information concerning the council or its work and activities as the Minister or the Director-General may determine.(2) A council must provide the information within such period as is specified by the Minister or Director-General.(3) The information that a council may be required to provide under this section includes:(a) information concerning any auditor’s report, and(b) information concerning any other report provided to the council with respect to the council or its work and activities, and(c) information as to any factors (of the kind referred to in section 263 (3)) that are relevant to a proposal referred to in Division 2 or 2B of Part 1 of Chapter 9.
429A Complaints about councils and officers of councils
(1) A public official within the meaning of the Protected Disclosures Act 1994 may complain to the Director-General about the conduct of a council or an officer of a council.(2) A complaint may be made orally or in writing.(3) The Director-General may deal with a complaint made under this section:(a) by means of an investigation authorised under section 430, or(b) in such other manner as the Director-General considers appropriate.
430 Director-General may authorise investigation of councils etc
(1) The Director-General may, at the request of the Minister or on the Director-General’s own initiative, authorise any person (referred to in this Part as a Departmental representative) to investigate any aspect of a council or of its work and activities.(2) An authority may be given generally or in respect of a particular matter.(3) The functions of a Departmental representative are as set out in the authority.(4) The Director-General is, by virtue of holding office as Director-General, a Departmental representative with power to investigate all matters.
431 Powers of Departmental representatives—generally
(1) For the purpose of exercising his or her functions, a Departmental representative may direct a person to do any one or more of the following:(a) to appear personally before the Departmental representative at a time and place specified in the direction,(b) to give evidence (including evidence on oath),(c) to produce to the Departmental representative any document that is in that person’s custody or under that person’s control,(d) to grant to the Departmental representative such authorities as may be necessary to enable the Departmental representative to gain access to any document that is in the custody or under the control of any bank, building society, credit union or other person.(2) For the purposes of this section, a Departmental representative may administer an oath.(3) A Departmental representative may take copies of or extracts from any document to which the Departmental representative gains access under this section.
Part 2 of Chapter 8 applies, in relation to the functions of a Departmental representative, to the Director-General and a Departmental representative in the same way as it applies to a council and a council employee (or other person) authorised by the council.
(1) A Departmental representative must report to the Minister and the Director-General on the results of the investigation and must send a copy of the report to the council.(2) The report may comment on any matter which, in the Departmental representative’s opinion, warrants special mention and may contain such recommendations as the Departmental representative considers appropriate.(3) A report furnished to the council under this section must be presented at the next meeting of the council after the report is received.
434 Council’s response to report
(1) A council must, within 40 days after presentation to it of a Departmental representative’s report, give written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report.(2) The Minister may:(a) after receiving the council’s notice, or(b) after the 40-day period,whichever is the earlier, order the council to do such things or to refrain from doing such things arising from the recommendations contained in the report as are specified in the order.(3) A council must comply with the Minister’s order.(4) An order under this section may state that a failure to comply with the order may lead to legal proceedings being taken to enforce compliance.
434A Council’s response to Ombudsman’s report
(1) The Minister may order a council to present a copy of a report made by the Ombudsman under section 26 of the Ombudsman Act 1974 concerning the conduct of the council (together with a copy of the Minister’s order) at the next meeting of the council occurring after the order is made.(2) The council must, within 40 days after the presentation of the Ombudsman’s report and the Minister’s order, give written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report.(3) At any time after receiving the council’s notice or the expiration of the 40-day period (whichever is the earlier) the Minister may order the council to do such things or to refrain from doing such things arising from the recommendations contained in the Ombudsman’s report as are specified in the order.(4) The council must comply with any order made by the Minister under this section.(5) An order under this section may state that a failure to comply with the order may lead to legal proceedings being taken to enforce compliance.(6) Nothing in this section affects any other obligation of the council in respect of the Ombudsman’s report under the Ombudsman Act 1974.
435 Surcharging by Departmental representative
(1) If satisfied that any expenditure or transfer, or any entry in a council’s accounts, has been incurred or made in contravention of this or any other Act or of any regulation in force under this or any other Act, a Departmental representative may:(a) disallow the expenditure, transfer or entry, and(b) surcharge the amount of the disallowance on the councillor, the general manager or any other member of staff of the council by whom the expenditure, transfer or entry was incurred or made or ordered to be incurred or made.(2) A Departmental representative may also surcharge on a councillor, the general manager or any other member of staff of the council the amount of:(a) any deficiency or loss incurred by the council as a consequence of the culpable negligence or misconduct of the councillor, general manager or member of staff, or(b) any money which ought to have been, but has not been, brought into account by the councillor, general manager or member of staff.(3) A Departmental representative may not exercise the powers conferred by this section unless expressly authorised to do so by the Director-General.
(1) Before surcharging a person, the Departmental representative:(a) must cause notice of the proposed surcharge, and of the reasons for the proposed surcharge, to be given to the person, and(b) must allow the person a reasonable opportunity to make submissions to the Departmental representative with respect to the proposed surcharge, and(c) must take into consideration any submissions duly made by the person with respect to the proposed surcharge.(2) The Departmental representative must certify in the council’s accounts the amount by which the Departmental representative has surcharged any person.(3) Immediately on surcharging an amount on any person, the Departmental representative must give notice of that fact to the person.
437 Applications for review by Administrative Decisions Tribunal
(1) A person who is surcharged under this Division may apply to the Administrative Decisions Tribunal for a review of the decision to surcharge.(2) The council must give effect to any decision of the Tribunal on a review of the decision to surcharge.
438 Recovery of amount surcharged
(1) The amount of a surcharge becomes payable to the council as a debt when the time within which an appeal may be made against the surcharge expires or, if such an appeal is made and the surcharge is not annulled, when that appeal is finally determined.(2) Any money recovered in connection with a surcharge relating to a particular account is to be paid into the fund in which money in that account is held.