Chapter 14 Honesty and disclosure of interests

Introduction. This Chapter places obligations on councillors, council delegates and staff of councils to act honestly and responsibly in carrying out their functions.

The Chapter also requires councils to adopt a code of conduct for councillors, staff and other persons associated with the functions of councils. However, the Chapter does not affect any other duties imposed by other laws or any offences created by other laws.

It also requires that pecuniary interests of councillors, council delegates and other persons involved in making decisions or giving advice on council matters be publicly recorded and requires councillors and staff to refrain from taking part in decisions on council matters in which they have a pecuniary interest.

The Chapter enables any person to make a complaint concerning a failure to disclose a pecuniary interest and provides for the investigation of complaints.

The Chapter also establishes the Local Government Pecuniary Interest Tribunal.

The Tribunal is empowered to conduct hearings into complaints and to take disciplinary action against a person if a complaint against the person is found to be proved.

Part 1 Conduct

Division 1 Conduct generally

439   Conduct of councillors, staff and delegates

(1)  Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act.

(2)  Although this section places certain duties on councillors, members of staff of a council and delegates of a council, nothing in this section gives rise to, or can be taken into account in, any civil cause of action.

440   Code of conduct

(1)  Every council must prepare or adopt a code of conduct to be observed by councillors, members of staff of the council and delegates of the council.

(2)  The Minister may prepare and issue a model code of conduct. A council may, but need not, adopt the model code.

(3)  A council must, within 12 months after each ordinary election, review its code of conduct and make such changes to it as it considers appropriate.

(4)  This section does not apply if the regulations prescribe a code of conduct to be observed by councillors, members of staff of the council and delegates of the council.

Division 2 Serious corrupt conduct

440A   Definition of “serious corrupt conduct”

In this Division:

serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence, being:

(a)  in the case of conduct of the holder of a civic office—conduct in connection with the exercise or purported exercise of the functions of the civic office, or

(b)  in the case of conduct of a member of staff of a council—conduct in connection with exercise or purported exercise of the duties of the member of staff.

440B   Dismissal from civic office for serious corrupt conduct

(1)  The Governor may dismiss a person from civic office and disqualify the person from holding civic office for a period not exceeding 5 years if:

(a)  the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the person from office with a view to his or her dismissal for serious corrupt conduct, and

(b)  the person is suspended from the civic office by the Minister under this Division, and

(c)  the Minister advises the Governor that the dismissal of the person is necessary in order to protect the public standing of the council concerned and the proper exercise of its functions.

(2)  Before advising the Governor on a dismissal, the Minister is to give the person a reasonable opportunity to show cause why he or she should not be dismissed from civic office.

440C   Temporary suspension from civic office for serious corrupt conduct

(1)  The Minister may, without notice or inquiry, suspend a person from civic office:

(a)  if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the person from office with a view to his or her dismissal for serious corrupt conduct, or

(b)  if criminal proceedings for serious corrupt conduct are instituted against the person, or

(c)  if the person makes an admission of serious corrupt conduct.

(2)  A person, while suspended from civic office under this section:

(a)  is not entitled to exercise any of the functions of the civic office, and

(b)  is not entitled to any fee or other remuneration to which the person would otherwise be entitled as the holder of the civic office.

(3)  A suspension under this section may be removed by the Minister at any time.

(4)  A suspension under this section is removed in the following circumstances:

(a)  if the person is not dismissed from civic office, or criminal proceedings in connection with the serious corrupt conduct are not instituted, within 6 months after the suspension,

(b)  in the case of a person against whom criminal proceedings are instituted in connection with the serious corrupt conduct—if the proceedings are withdrawn or dismissed.

(5)  If a suspension is removed, any fee or other remuneration withheld may (if the Minister so directs) be subsequently paid to the person concerned.

440D   Temporary suspension of staff in connection with serious corrupt conduct

(1)  The general manager may suspend a member of staff of a council from duty:

(a)  if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the member of staff from duty with a view to the institution of disciplinary or other proceedings against the member of staff for serious corrupt conduct, or

(b)  if criminal proceedings for serious corrupt conduct are instituted against the member of staff, or

(c)  if the member of staff makes an admission of serious corrupt conduct.

(2)  If the general manager so directs, a member of staff, while suspended from duty under this section, is not entitled to any salary or other remuneration to which the person would otherwise be entitled as a member of staff.

(3)  A suspension under this section may be removed by the general manager at any time.

(4)  A suspension under this section is removed in the following circumstances:

(a)  if disciplinary or criminal proceedings in connection with the serious corrupt conduct are not instituted within 6 months after the suspension,

(b)  in the case of a member of staff against whom disciplinary or criminal proceedings are instituted in connection with the serious corrupt conduct—if the proceedings are withdrawn or dismissed.

(5)  If a suspension is removed, any salary or other remuneration withheld may (if the general manager so directs) be subsequently paid to the member of staff.

(6)  The Minister may exercise the functions of the general manager under this section in connection with:

(a)  conduct of a general manager, or

(b)  conduct of any other member of staff (but only if the Minister is satisfied that the general manager has failed to act under this section without reasonable cause).

(7)  This section does not limit any other power to suspend a member of staff from duty.

440E   Application of Division

This Division applies to serious corrupt conduct, and to criminal proceedings instituted or admissions made in respect of serious corrupt conduct, before or after the commencement of this Division.

Part 2 Duties of disclosure

Division 1 Preliminary

441   Who are “designated persons”?

For the purposes of this Chapter, designated persons are:

•  the general manager

•  other senior staff of the council

•  a person (other than a member of the senior staff of the council) who is a member of staff of the council or a delegate of the council and who holds a position identified by the council as the position of a designated person because it involves the exercise of functions under this or any other Act (such as regulatory functions or contractual functions) that, in their exercise, could give rise to a conflict between the person’s duty as a member of staff or delegate and the person’s private interest

•  a person (other than a member of the senior staff of the council) who is a member of a committee of the council identified by the council as a committee whose members are designated persons because the functions of the committee involve the exercise of the council’s functions under this or any other Act (such as regulatory functions or contractual functions) that, in their exercise, could give rise to a conflict between the member’s duty as a member of the committee and the member’s private interest.

442   What is a “pecuniary interest”?

(1)  For the purposes of this Chapter, a pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated as provided in section 443.

(2)  A person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to the matter or if the interest is of a kind specified in section 448.

443   Who has a pecuniary interest?

(1)  For the purposes of this Chapter, a person has a pecuniary interest in a matter if the pecuniary interest is the interest of:

(a)  the person, or

(b)  another person with whom the person is associated as provided in this section.

(2)  A person is taken to have a pecuniary interest in a matter if:

(a)  the person’s spouse or de facto partner or a relative of the person, or a partner or employer of the person, has a pecuniary interest in the matter, or

(b)  the person, or a nominee, partner or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.

(3)  However, a person is not taken to have a pecuniary interest in a matter as referred to in subsection (2):

(a)  if the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or

(b)  just because the person is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or

(c)  just because the person is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the person has no beneficial interest in any shares of the company or body.

444   What disclosures must be made by a councillor?

A councillor:

(a)  must prepare and submit written returns of interests in accordance with section 449, and

(b)  must disclose pecuniary interests in accordance with section 451.

445   What disclosures must be made by a designated person?

A designated person:

(a)  must prepare and submit written returns of interests in accordance with section 449, and

(b)  must disclose pecuniary interests in accordance with section 459.

446   What disclosures must be made by a member of a council committee?

A member of a council committee, other than a committee that is wholly advisory, must disclose pecuniary interests in accordance with section 451.

447   What disclosures must be made by council advisers?

A person giving advice to the council at a council or council committee meeting must disclose pecuniary interests in accordance with section 456.

448   What interests do not have to be disclosed?

The following interests do not have to be disclosed for the purposes of this Chapter:

(a)  an interest as an elector,

(b)  an interest as a ratepayer or person liable to pay a charge,

(c)  an interest in any matter relating to the terms on which the provision of a service or the supply of goods or commodities is offered to the public generally, or to a section of the public that includes persons who are not subject to this Part,

(d)  an interest in any matter relating to the terms on which the provision of a service or the supply of goods or commodities is offered to a relative of the person by the council in the same manner and subject to the same conditions as apply to persons who are not subject to this Part,

(e)  an interest as a member of a club or other organisation or association, unless the interest is as the holder of an office in the club or organisation (whether remunerated or not),

(f)  an interest of a member of a council committee as a person chosen to represent the community or as a member of a non-profit organisation or other community or special interest group if the committee member has been appointed to represent the organisation or group on the committee,

(g)  an interest in a proposal relating to the making, amending, altering or repeal of an environmental planning instrument other than an instrument that effects a change of the permissible uses of:

(i)  land in which the person or another person with whom the person is associated as provided in section 443 has a proprietary interest (which, for the purposes of this paragraph, includes any entitlement to the land at law or in equity and any other interest or potential interest in the land arising out of any mortgage, lease, trust, option or contract, or otherwise), or

(ii)  land adjoining, adjacent to or in proximity to land referred to in subparagraph (i),

      if the person or the other person with whom the person is associated would by reason of the proprietary interest have a pecuniary interest in the proposal,

(h)  an interest relating to a contract, proposed contract or other matter if the interest arises only because of a beneficial interest in shares in a company that does not exceed 10 per cent of the voting rights in the company,

(i)  an interest of a person arising from the proposed making by the council of an agreement between the council and a corporation, association or partnership, being a corporation, association or partnership that has more than 25 members, if the interest arises because a relative of the person is a shareholder (but not a director) of the corporation or is a member (but not a member of the committee) of the association or is a partner of the partnership,

(j)  an interest of a person arising from the making by the council of a contract or agreement with a relative of the person for or in relation to any of the following, but only if the proposed contract or agreement is similar in terms and conditions to such contracts and agreements as have been made, or as are proposed to be made, by the council in respect of similar matters with other residents of the area:

(i)  the performance by the council at the expense of the relative of any work or service in connection with roads or sanitation,

(ii)  security for damage to footpaths or roads,

(iii)  any other service to be rendered, or act to be done, by the council by or under any Act conferring functions on the council or by or under any contract,

(k)  an interest relating to the payment of fees to councillors (including the mayor and deputy mayor),

(l)  an interest relating to the payment of expenses and the provision of facilities to councillors (including the mayor and deputy mayor) in accordance with a policy under section 252,

(m)  an interest relating to an election to the office of mayor arising from the fact that a fee for the following 12 months has been determined for the office of mayor,

(n)  an interest of a person arising from the passing for payment of a regular account for wages or salary of an employee who is a relative of the person,

(o)  an interest arising from being covered by, or a proposal to be covered by, indemnity insurance as a councillor or member of a council committee,

(p)  an interest arising from appointment of a councillor to a body as representative or delegate of the council, whether or not a fee or other recompense is payable to the representative or delegate.

 

DISCLOSURE OF INTERESTS
How and when disclosed and nature of interests disclosed	Councillor	Member of council committee	Council advisor	General manager	Senior staff member	Staff member, delegate or committee member, holding “designated person” position (s 441)
•  In periodic returns: Interests specified in Schedule 3 (s 449)	✓	×	×	✓	✓	✓
•  At meetings: Pecuniary interests (ss 451, 456)	✓	✓	✓	×	×	×
•  In dealings with council matters: Pecuniary interests (s 459)	×	×	×	✓	✓	✓

PENALTIES FOR BREACH OF DISCLOSURE REQUIREMENTS (S 482)
Councillor	Committee member	Council adviser	Council employee
•  Counselling •  Reprimand •  Suspension from civic office for up to 6 months •  Disqualification from civic office for up to 5 years	•  Counselling •  Reprimand •  Suspension from the committee for up to 6 months •  Disqualification from membership of any council committee for up to 5 years	•  Counselling •  Reprimand •  Suspension as council advisor for up to 6 months •  Disqualification as council advisor for up to 5 years	•  Counselling •  Reprimand •  Recommend taking of disciplinary action by the council •  Recommend dismissal

Division 2 Disclosure of interests in written returns

449   Returns disclosing interests of councillors and designated persons

(1)  A councillor or designated person must complete and lodge with the general manager, within 3 months after becoming a councillor or designated person, a return in the form prescribed by the regulations.

(1A)  A person must not lodge a return that the person knows or ought reasonably to know is false or misleading in a material particular.

(2)  A person need not lodge a return within the 3-month period after becoming a councillor or designated person if the person lodged a return in the previous year or if the person ceases to be a councillor or designated person within the 3-month period.

(3)  A councillor or designated person holding that position at 30 June in any year must complete and lodge with the general manager within 3 months after that date a return in the form prescribed by the regulations.

(4)  A person need not lodge a return within the 3-month period after 30 June in a year if the person lodged a return under subsection (1) within 3 months of 30 June in that year.

(5)  Nothing in this section prevents a councillor or designated person from lodging more than one return in any year.

(6)  Nothing in this section or the regulations requires a person to disclose in a return lodged under this section an interest of the person’s spouse or de facto partner or a relative of the person.

450   (Repealed)

450A   Register and tabling of returns

(1)  The general manager must keep a register of returns required to be lodged with the general manager under section 449.

(2)  Returns required to be lodged with the general manager under section 449 must be tabled at a meeting of the council, being:

(a)  in the case of a return lodged in accordance with section 449 (1)—the first meeting held after the last day for lodgement under that subsection, or

(b)  in the case of a return lodged in accordance with section 449 (3)—the first meeting held after the last day for lodgement under that subsection, or

(c)  in the case of a return otherwise lodged with the general manager—the first meeting after lodgement.

Division 3 Disclosure of pecuniary interests at meetings

451   Disclosure and presence in meetings

(1)  A councillor or a member of a council committee who has a pecuniary interest in any matter with which the council is concerned and who is present at a meeting of the council or committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.

(2)  The councillor or member must not be present at, or in sight of, the meeting of the council or committee:

(a)  at any time during which the matter is being considered or discussed by the council or committee, or

(b)  at any time during which the council or committee is voting on any question in relation to the matter.

(3)  (Repealed)

452   (Repealed)

453   Disclosures to be recorded

A disclosure made at a meeting of a council or council committee must be recorded in the minutes of the meeting.

454   General disclosure

A general notice given to the general manager in writing by a councillor or a member of a council committee to the effect that the councillor or member, or the councillor’s or member’s spouse, de facto partner or relative, is:

(a)  a member, or in the employment, of a specified company or other body, or

(b)  a partner, or in the employment, of a specified person,

is, unless and until the notice is withdrawn, sufficient disclosure of the councillor’s or member’s interest in a matter relating to the specified company, body or person that may be the subject of consideration by the council or council committee after the date of the notice.

455   (Repealed)

456   Disclosure by adviser

(1)  A person who, at the request or with the consent of the council or a council committee, gives advice on any matter at any meeting of the council or committee must disclose the nature of any pecuniary interest the person has in the matter to the meeting at the time the advice is given.

(2)  The person is not required to disclose the person’s interest as an adviser.

457   Circumstances in which secs 451 and 456 are not breached

A person does not breach section 451 or 456 if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.

458   Powers of Minister in relation to meetings

The Minister may, conditionally or unconditionally, allow a councillor or a member of a council committee who has a pecuniary interest in a matter with which the council is concerned to be present at a meeting of the council or committee, to take part in the consideration or discussion of the matter and to vote on the matter if the Minister is of the opinion:

(a)  that the number of councillors prevented from voting would be so great a proportion of the whole as to impede the transaction of business, or

(b)  that it is in the interests of the electors for the area to do so.

Division 4 Disclosure of pecuniary interests in council dealings

459   Disclosure of pecuniary interests when dealing with council matters

(1)  A designated person must disclose in writing to the general manager (or if the person is the general manager, to the council) the nature of any pecuniary interest the person has in any council matter with which the person is dealing.

(1A)  However, subsection (1) does not require a designated person who is a member of staff of the council to disclose such a pecuniary interest if the interest relates only to the person’s salary as such a member of staff or to his or her other conditions of employment or the like.

(2)  The general manager must, on receiving a disclosure from a designated person, deal with the matter to which the disclosure relates or refer it to another person to deal with.

(3)  A disclosure by the general manager must, as soon as practicable after the disclosure is made, be laid on the table at a meeting of the council and the council must deal with the matter to which the disclosure relates or refer it to another person to deal with.

Part 3 Complaints concerning non-disclosure

 

Management of pecuniary interest complaints

Division 1 Making and investigation of complaints

460   Complaints concerning failure to disclose pecuniary interests

(1)  A person may make a complaint to the Director-General, or the Director-General may make a complaint, that a person has or may have contravened Part 2.

(2)  A complaint:

(a)  must be in writing, and

(b)  must identify the complainant and the person against whom the complaint is made, and

(c)  must give particulars of the grounds of the complaint, and

(d)  must be verified by statutory declaration, and

(e)  must be lodged with the Director-General.

(3)  The provisions of subsection (2) (b), in so far as they require a complaint to identify the complainant, (d) and (e) do not apply to a complaint made by the Director-General.

461   Director-General may require further information

The Director-General may require the complainant to provide further particulars of the complaint within the time specified by the Director-General.

462   Investigation of complaints

(1)  The Director-General may investigate a complaint.

(2)  The Director-General may refer a complaint for investigation to an authority, being the Ombudsman, the Independent Commission Against Corruption, the Commissioner of Police or the Director of Public Prosecutions, if the authority agrees to the referral. Such a referral may be made whether or not the Director-General has begun to investigate the complaint.

(3)  The Director-General may decide not to investigate a complaint but to authorise an investigation under section 430 in respect of a matter to which the complaint relates.

463   Decision not to investigate a complaint

(1)  The Director-General may decide to take no action concerning a complaint (including a complaint referred to in section 464 (2)) if the Director-General considers that the complaint falls into any of the following categories:

(a)  the complaint is frivolous, vexatious or not made in good faith,

(b)  the subject-matter of the complaint is trivial or does not warrant investigation,

(c)  the subject-matter of the complaint has been or is under investigation by some other competent person or body or has been or is the subject of legal proceedings,

(d)  the complaint raises issues that require investigation by another person or body,

(e)  there is or was, in relation to the matter complained of, a satisfactory alternative means of dealing with the matter by the complainant,

(f)  the complaint relates to a matter that occurred more than 2 years before the complaint was made and the complainant does not have a sufficient reason for having delayed the making of the complaint,

(g)  the complainant has failed to provide further particulars of the complaint within the time specified by the Director-General.

(2)  If the Director-General decides to take no action concerning a complaint (including a complaint referred to in section 464 (2)), the Director-General must notify the complainant and give the reasons for the decision.

464   Referral and investigation of complaints by other authorities

(1)  An authority who receives a matter (otherwise than from the Director-General) for the purpose of investigation is authorised by this Act to refer the matter to the Director-General if the matter involves a possible contravention of Part 2.

(2)  A matter referred to the Director-General under this section is taken to be a complaint made by the Director-General.

465   Pecuniary Interest Tribunal to be notified of investigations

The Director-General must notify the Pecuniary Interest Tribunal of a decision to investigate a complaint or to refer a complaint for investigation to an authority.

466   Persons to be notified of complaint

(1)  The Director-General must, within 3 months after receiving a complaint, making a complaint or having a matter referred to the Director-General under section 464, give the person against whom the complaint is made notice of the nature of the complaint and whether any action has been, or is intended to be, taken concerning the complaint.

(2)  At the same time as notice is given to the person against whom the complaint is made, the Director-General must notify the complainant whether any action has been, or is intended to be, taken concerning the complaint. However, at the time the notice is given to the person against whom the complaint is made, the Director-General is not obliged to notify the complainant of the decision not to investigate a complaint if notice of that decision has already been given under section 463 (2).

467   Reports of investigation of complaints by authorities

An authority who has investigated an allegation that a person has or may have contravened Part 2 (whether or not the allegation was referred for investigation by the Director-General), is authorised by this Act to send any report prepared by the authority concerning the investigation to the Director-General.

468   Presentation of reports to Pecuniary Interest Tribunal

(1)  The Director-General must present a report to the Pecuniary Interest Tribunal of an investigation into a complaint carried out by the Director-General.

(2)  The Director-General must present to the Pecuniary Interest Tribunal any report received under section 467 from an authority.

Division 2 Proceedings before the Pecuniary Interest Tribunal

469   Pecuniary Interest Tribunal to decide whether or not to conduct proceedings into a complaint

(1)  After considering a report presented to it in relation to a complaint, the Pecuniary Interest Tribunal may decide to conduct proceedings into the complaint.

(2)  If the Pecuniary Interest Tribunal decides not to conduct proceedings into a complaint, it must provide a written statement of its decision, and the reasons for its decision:

(a)  to the person against whom the complaint was made, and

(b)  to the person who made the complaint, and

(c)  to the Director-General.

(3)  To avoid doubt, a decision by the Pecuniary Interest Tribunal not to conduct proceedings into a complaint is not a decision to which section 484 (Pecuniary Interest Tribunal to provide details of its decisions) or 485 (Appeals to Supreme Court) applies.

470   Circumstances in which Pecuniary Interest Tribunal may dispense with hearing

(1)  After considering the report of the Director-General and any other document or other material lodged with or provided to the Tribunal, the Pecuniary Interest Tribunal may determine the proceedings without a hearing if:

(a)  the person who made the complaint and the person against whom the complaint is made have agreed that the proceedings may be determined without a hearing, and

(b)  there are no material facts in dispute between the person who made the complaint and the person against whom the complaint is made, and

(c)  in the opinion of the Tribunal, public interest considerations do not require a hearing.

(2)  To avoid doubt, a decision by the Pecuniary Interest Tribunal to determine proceedings into a complaint without a hearing is a decision to which sections 484 (Pecuniary Interest Tribunal to provide details of its decisions) and 485 (Appeals to Supreme Court) apply.

Note. Section 484 requires the Pecuniary Interest Tribunal to inform certain parties of decisions in proceedings before it.

471   General conduct of proceedings

(1)  The Pecuniary Interest Tribunal may determine its own procedure, subject to this Act.

(2)  In the conduct of any proceedings, the Pecuniary Interest Tribunal:

(a)  may inform itself on any matter in any way it thinks fit and is not bound by the rules of evidence, and

(b)  may receive information or submissions in the form of oral or written statements, and

(c)  may consult with such persons as it thinks fit.

472   Private and public hearings

(1)  A hearing is to be held in public unless the Pecuniary Interest Tribunal decides otherwise.

(2)  In reaching such a decision, the Pecuniary Interest Tribunal is to have regard to any matters which it considers are related to the public interest.

473   Representation at hearings

At a hearing before the Pecuniary Interest Tribunal, a person is entitled to be represented by a legal practitioner.

474   Presentation of cases at hearings

A party to proceedings before the Pecuniary Interest Tribunal conducted by hearing may:

(a)  call and examine any witness, and

(b)  cross-examine any witness called by another party, and

(c)  examine any copy of any document or part of a document produced in the proceedings, and

(d)  produce documents and exhibits to the Pecuniary Interest Tribunal, and

(e)  otherwise adduce, orally or in writing, to the Pecuniary Interest Tribunal such matters, and address the Pecuniary Interest Tribunal on such matters, as are relevant to the proceedings.

475   Power to summon witnesses and take evidence at hearings

(1A)  This section applies only to proceedings conducted by hearing.

(1)  The Pecuniary Interest Tribunal may summon a person to appear in proceedings before the Pecuniary Interest Tribunal, to give evidence and to produce such documents (if any) as are referred to in the summons.

(2)  The Pecuniary Interest Tribunal may require a person appearing in the proceedings to produce a document.

(3)  The Pecuniary Interest Tribunal may, in proceedings before it, take evidence on oath, and for that purpose the Pecuniary Interest Tribunal:

(a)  may require a person appearing in the proceedings to give evidence to take an oath in a form approved by the Pecuniary Interest Tribunal, and

(b)  may administer an oath to a person so appearing in the proceedings.

(4)  A person served with a summons to appear in any such proceedings and to give evidence must not, without reasonable excuse:

(a)  fail to attend as required by the summons, or

(b)  fail to attend from day to day unless excused, or released from further attendance, by the Pecuniary Interest Tribunal.

(5)  A person appearing in proceedings to give evidence must not, without reasonable excuse:

(a)  when required to be sworn—fail to comply with the requirement, or

(b)  fail to answer a question that the person is required to answer by the Pecuniary Interest Tribunal, or

(c)  fail to produce a document that the person is required to produce by this section.

Maximum penalty: 20 penalty units.

476   Power to obtain documents

(1)  The Pecuniary Interest Tribunal may, by notice in writing served on a person, require the person:

(a)  to attend, at a time and place specified in the notice, before the Pecuniary Interest Tribunal, and

(b)  to produce, at that time and place, to the Pecuniary Interest Tribunal a document specified in the notice.

(2)  A person who fails, without reasonable excuse, to comply with a notice served on the person under this section is guilty of an offence.

Maximum penalty: 20 penalty units.

477   Privilege concerning answers and documents

(1)  A witness summoned to attend or appearing before the Pecuniary Interest Tribunal at a hearing is not excused from answering any question or producing any document or other thing:

(a)  on the ground that the answer or production may incriminate the witness, or

(b)  on any other ground of privilege, or

(c)  on the ground of a duty of secrecy or other restriction on disclosure, or

(d)  on any other ground.

(2)  An answer made, or document or other thing produced, by a witness at a hearing before the Pecuniary Interest Tribunal is not (except as otherwise provided by this section) admissible in evidence against the witness in any civil or criminal proceedings or in any disciplinary proceedings.

(3)  Nothing in this section makes inadmissible:

(a)  any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subsection (1), or

(b)  any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.

(4)  If:

(a)  a legal practitioner or other person is required to answer a question or produce a document or other thing at a hearing before the Pecuniary Interest Tribunal, and

(b)  the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between the practitioner (in his or her capacity as a legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a hearing before the Pecuniary Interest Tribunal,

      the legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.

478   Additional complaints

(1)  The Pecuniary Interest Tribunal may in proceedings before it deal with one or more complaints about a person.

(2)  If, during any such proceedings, it appears to the Pecuniary Interest Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the person concerned:

(a)  whether instead of or in addition to the complaint which was made, and

(b)  whether or not by the same complainant,

      the Pecuniary Interest Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.

(3)  If another complaint is taken to have been referred to the Pecuniary Interest Tribunal under subsection (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Pecuniary Interest Tribunal, just and equitable in the circumstances.

(4)  If another complaint is taken to have been referred to the Pecuniary Interest Tribunal under subsection (2), the Tribunal may do either or both of the following:

(a)  reconsider any decision under section 470 to determine proceedings on the original complaint without a hearing and, if appropriate, recommence proceedings in relation to that complaint, or that complaint and any additional complaint, by way of hearing,

(b)  decide, in accordance with section 470, to determine proceedings, in relation to the original complaint, any additional complaint or all complaints, without a hearing.

479   Adjournments

The Pecuniary Interest Tribunal may adjourn proceedings for any reason it thinks fit.

480   Release of information

(1)  The Pecuniary Interest Tribunal may, if it thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a person):

(a)  direct that the name of any witness is not to be disclosed in the proceedings, or

(b)  direct that all or any of the following matters are not to be published:

•  the name and address of any witness

•  the name and address of a complainant

•  the name and address of the person against whom the complaint was made

•  any specified evidence

•  the subject-matter of a complaint.

(2)  A direction may be amended or revoked at any time by the Pecuniary Interest Tribunal.

(3)  A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the Pecuniary Interest Tribunal for consideration of the matter to:

(a)  a person who requested the direction, and

(b)  the complainant or the person against whom the complaint was made, as appropriate, and

(c)  such other person as the Pecuniary Interest Tribunal thinks fit.

(4)  A person who contravenes a direction given under this section is guilty of an offence.

Maximum penalty: 20 penalty units (in the case of an individual) or 150 penalty units (in the case of a corporation).

481   Witnesses’ expenses

A person who is required to appear or to give evidence before the Pecuniary Interest Tribunal is entitled to be paid such allowances and expenses as the Pecuniary Interest Tribunal may determine in respect of the person.

482   Decision of Pecuniary Interest Tribunal

(1)  The Pecuniary Interest Tribunal may, if it finds a complaint against a councillor is proved:

(a)  counsel the councillor, or

(b)  reprimand the councillor, or

(c)  suspend the councillor from civic office for a period not exceeding 6 months, or

(d)  disqualify the councillor from holding civic office for a period not exceeding 5 years.

(2)  If it finds a complaint against an employee of the council is proved, the Pecuniary Interest Tribunal may:

(a)  counsel the employee, or

(b)  reprimand the employee, or

(c)  recommend that the council take specified disciplinary action against the employee (including counselling or reprimanding the employee), or

(d)  recommend dismissal of the employee.

(3)  The Pecuniary Interest Tribunal may, if it finds a complaint against a member of a council committee is proved:

(a)  counsel the member, or

(b)  reprimand the member, or

(c)  suspend the member from office as member of the committee for a period not exceeding 6 months, or

(d)  disqualify the member from holding office as a member of any committee of that council for a period not exceeding 5 years.

(4)  The Pecuniary Interest Tribunal may, if it finds a complaint against an adviser to a council is proved:

(a)  counsel the adviser, or

(b)  reprimand the adviser, or

(c)  suspend the adviser from office as adviser for a period not exceeding 6 months, or

(d)  disqualify the adviser from holding office as an adviser to that council for a period not exceeding 5 years.

483   Standard of proof

A finding of the Pecuniary Interest Tribunal is to be made on the balance of probabilities.

484   Pecuniary Interest Tribunal to provide details of its decisions

(1)  The Pecuniary Interest Tribunal must provide a written statement of a decision made in proceedings before it to the person against whom the proceedings were taken, to the person who made the initial complaint and to the Director-General and must do so as soon as practicable after the decision is made.

(2)  The statement of a decision must:

(a)  set out the findings on material questions of fact, and

(b)  refer to any evidence or other material on which the findings were based, and

(c)  give the reasons for the decision.

(3)  The Pecuniary Interest Tribunal may also:

(a)  provide the statement of a decision to any other persons that the Pecuniary Interest Tribunal thinks fit, and

(b)  if it thinks fit, and subject to section 480, make the statement of a decision publicly available.

(4)  The Director-General may, if he or she thinks fit, and subject to any direction made by the Pecuniary Interest Tribunal under section 480, make any statement of decision provided to the Director-General by the Pecuniary Interest Tribunal publicly available.

485   Appeals to Supreme Court

(1)  A party to a proceeding before the Pecuniary Interest Tribunal may appeal to the Supreme Court against any decision of the Pecuniary Interest Tribunal in the proceeding.

(2)  An appeal must be made within 28 days after the day on which the statement of the decision of the Pecuniary Interest Tribunal is provided to the person making the appeal or within such further time as the Supreme Court allows.

(3)  The Supreme Court may stay any decision made by the Pecuniary Interest Tribunal, on such terms as the Court thinks fit, until such time as the Court determines the appeal.

(4)  On the hearing of an appeal, the Supreme Court may:

(a)  make an order reversing, affirming or amending the decision appealed against, or

(b)  remit the matter to the Pecuniary Interest Tribunal for decision by the Pecuniary Interest Tribunal in accordance with the order of the Court, or

(c)  make an order directing a rehearing of the proceedings in respect of which the decision appealed against was made, or

(d)  make such other order in relation to the appeal as the Court thinks fit.

486   Referral of matters by Pecuniary Interest Tribunal

Despite section 489 (1) and (1A), the Pecuniary Interest Tribunal may refer a matter before it to an authority if it considers that it is more appropriate that the authority deal with the matter and if the authority agrees to the referral.

 

Proceedings before the Pecuniary Interest Tribunal

Part 4 Local Government Pecuniary Interest Tribunal

487   Establishment of Pecuniary Interest Tribunal

For the purposes of this Chapter, there is established a tribunal to be known as the Local Government Pecuniary Interest Tribunal.

488   Constitution of Pecuniary Interest Tribunal

(1)  The Pecuniary Interest Tribunal consists of one part-time member, appointed by the Governor, who is a barrister or solicitor eligible for appointment as a District Court or Supreme Court Judge or who is a retired District Court or Supreme Court Judge.

(2)  A person is not qualified for appointment if, within 12 months before the appointment, the person has been a councillor or an employee of a council.

(3)  Schedule 4 has effect with respect to the Pecuniary Interest Tribunal.

489   Functions of Pecuniary Interest Tribunal

(1)  The Pecuniary Interest Tribunal has exclusive jurisdiction at first instance to decide allegations of contraventions of Part 2 of this Chapter.

(1A)  Accordingly, proceedings at first instance to decide allegations of contraventions of Part 2 of this Chapter may not be brought before, or entertained by, any other tribunal or any court.

(2)  The Pecuniary Interest Tribunal has such other functions as are conferred or imposed on it by or under this Act or any other Act.

490   Annual report

The Pecuniary Interest Tribunal must, within 2 months after the end of each year, provide a report to the Minister concerning proceedings that have been conducted before it during that year.