Part 1439 Conduct of councillors, staff, delegates and administrators
(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.(3) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.
(1) The regulations may prescribe a model code of conduct (the model code) applicable to councillors, members of staff of councils and delegates of councils.(2) Without limiting what may be included in the model code, the model code may:(a) relate to any conduct (whether by way of act or omission) of a councillor, member of staff or delegate in carrying out his or her functions that is likely to bring the council or holders of civic office into disrepute, and(b) in particular, contain provisions for or with respect to conduct specified in Schedule 6A.(3) A council must adopt a code of conduct (the adopted code) that incorporates the provisions of the model code. The adopted code may include provisions that supplement the model code.(4) A council’s adopted code has no effect to the extent that it is inconsistent with the model code as in force for the time being.(5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of:(a) the council’s adopted code, except to the extent of any inconsistency with the model code as in force for the time being, and(b) the model code as in force for the time being, to the extent that:(i) the council has not adopted a code of conduct, or(ii) the adopted code is inconsistent with the model code, or(iii) the model code contains provisions or requirements not included in the adopted code.(6) A provision of a council’s adopted code is not inconsistent with the model code merely because the provision makes a requirement of the model code more onerous for persons required to observe the requirement.(7) A council must, within 12 months after each ordinary election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with this section.(8) Nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action, but nothing in this section affects rights or liabilities arising apart from this section.(9) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.
440AA Administration of code of conduct
(1) The regulations may prescribe a procedure (the model procedure) for administering the model code referred to in section 440.(2) The model procedure is to set out the procedures for dealing with alleged contraventions of the model code.(3) A council must adopt a procedure (the adopted procedure) that incorporates the provisions of the model procedure. The adopted procedure may include provisions that supplement the model procedure.(4) A council’s adopted procedure has no effect to the extent that it is inconsistent with the model procedure as in force for the time being.(5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of:(a) the council’s adopted procedure, except to the extent of any inconsistency with the model procedure as in force for the time being, and(b) the model procedure as in force for the time being, to the extent that:(i) the council has not adopted the model procedure, or(ii) the adopted procedure is inconsistent with the model procedure, or(iii) the model procedure contains provisions or requirements not included in the adopted procedure.(6) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.
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.
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.
(1) In this Division:misconduct of a councillor means any of the following:
(a) a contravention by the councillor of this Act or the regulations,(b) a failure by the councillor to comply with an applicable requirement of a code of conduct under section 440,(c) a failure by a councillor to comply with an order issued by the Director-General under this Division,(d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council.(2) However, a contravention of the disclosure requirements of Part 2 is not misconduct.Note. A contravention of the disclosure requirements of Part 2 is dealt with under other provisions of this Chapter.(3) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something.
440G Formal censure of councillor for misconduct
(1) A council may by resolution at a meeting formally censure a councillor for misconduct.(2) A formal censure resolution may not be passed except by a motion to that effect of which notice has been duly given in accordance with regulations made under section 360 and, if applicable, the council’s code of meeting practice.(3) A council may pass a formal censure resolution only if it is satisfied that the councillor has engaged in misconduct on one or more occasions.(4) The council must specify in the formal censure resolution the grounds on which it is satisfied that the councillor should be censured.(5) A motion for a formal censure resolution may, without limitation, be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council.
440H Director-General may investigate misconduct by a councillor
(1) The Director-General may conduct an investigation for the purpose of determining whether a councillor has engaged in misconduct.(2) The Director-General may conduct such an investigation:(a) on his or her own initiative, or(b) if the general manager of a council refers an allegation of misconduct by a councillor to the Director-General, or(c) if a council, by resolution, refers an allegation of misconduct by a councillor to the Director-General, or(d) if the Ombudsman states in a report that the Ombudsman is satisfied that a councillor has or may have engaged in misconduct, or(e) if the Independent Commission Against Corruption states in a report that the Commission is satisfied that a councillor has or may have engaged in misconduct.(3) For the purpose of an investigation, the Director-General may, by order in writing served on any relevant person, direct the person to do any one or more of the following:(a) provide written information, by the date specified in the order, and to verify the information by statutory declaration,(b) produce, at a time and place specified in the order, any document specified in the order that is in the person’s custody or control.Note. Failure to comply with the direction is an offence under section 661.(4) The Director-General may take copies of or extracts from any document to which the Director-General gains access under this section.(5) The Director-General may arrange for a departmental report to be prepared in relation to an investigation conducted under this section.(6) The preparation of a departmental report is a prerequisite to a decision by the Director-General to take disciplinary action against a councillor, unless the disciplinary action is taken on the basis of a report by the Ombudsman or Independent Commission Against Corruption.(7) This section authorises reports relating to misconduct to be made by the Ombudsman or Independent Commission Against Corruption and a reference to a report of the Ombudsman or Independent Commission Against Corruption is a reference to a report made to the Director-General under the authority of this subsection or under any other provision of this or any other Act.(8) The powers conferred on the Director-General by this section may also be exercised for the purposes of determining if an administrator has engaged in conduct that would be misconduct if the administrator were a councillor.(9) In this section:administrator means an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66).
relevant person means a councillor, a member of staff of a council, a delegate of a council or an administrator.
440I Director-General may take disciplinary action for misconduct
(1) The Director-General may take disciplinary action against a councillor if the Director-General is satisfied that:(a) the councillor has engaged in misconduct (whether on the basis of a departmental report or a report by the Ombudsman or Independent Commission Against Corruption), and(b) disciplinary action is warranted.(2) The Director-General may take one or more of the following actions (and any such action is disciplinary action):(a) counsel the councillor,(b) reprimand the councillor,(c) by order, direct the councillor to cease engaging in the misconduct,(d) by order, direct the councillor to apologise for the misconduct in the manner specified in the order,(e) by order, direct the councillor to undertake training,(f) by order, direct the councillor to participate in mediation,(g) by order, suspend the councillor from civic office for a period not exceeding 3 months,(h) by order, suspend the councillor’s right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 3 months (without suspending the councillor from civic office for that period).(3) In determining which disciplinary action, if any, to take against a councillor who has engaged in misconduct, the Director-General may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters.(4) The Director-General is to notify the councillor of any decision to take disciplinary action under this section and the reasons for the decision.(5) A copy of the decision and the statement of reasons for the decision are to be provided to the council.(6) The Director-General is to make any decision to suspend a councillor from civic office or to suspend a councillor’s right to be paid any fee or other remuneration under this section, and the statement of reasons for the decision, publicly available.(7) The Director-General may make any other decision to take disciplinary action against a councillor, and the statement of reasons for the decision, publicly available.(8) No liability (including liability in defamation) is incurred for making a decision publicly available as permitted or required by this section or for publishing in good faith a fair report or summary of such a decision.
440J Alternatives to disciplinary action by the Director-General
(1) The Director-General may before, during or after an investigation into an allegation of misconduct by a councillor decide to take no further action against the councillor, if satisfied that no further action is warranted.(2) The Director-General may, instead of taking disciplinary action against a councillor:(a) refer the matter to the council concerned with recommendations as to how the council might resolve the matter, by alternative dispute resolution or otherwise, or(b) refer the matter to the Pecuniary Interest and Disciplinary Tribunal for consideration.(3) A matter is referred to the Tribunal under this section by means of a report presented to the Tribunal by the Director-General. A report may contain or be accompanied by such material and observations as the Director-General thinks fit.(4) The Director-General is to notify the councillor concerned of any decision to refer the matter to the Tribunal.(5) The regulations may make provision for or with respect to the reference of matters to the Tribunal under this section.
440K Suspension of a councillor
(1) A councillor, while suspended from civic office:(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 he or she would otherwise be entitled as the holder of the civic office.(2) The period of suspension under an order made by the Director-General commences on the date 7 days after the service of the order on the councillor or the date specified in the order for the commencement of the period of suspension, whichever is the later.
440L Appeals against disciplinary action
(1) A councillor against whom disciplinary action is taken by the Director-General may appeal to the Pecuniary Interest and Disciplinary Tribunal against the decision of the Director-General to take disciplinary action.(2) An appeal must be made within 28 days after the day on which the councillor is notified of the Director-General’s decision to take disciplinary action against the councillor.(3) The Tribunal may stay any decision made by the Director-General until such time as the Tribunal determines the appeal.(4) On hearing the appeal, the Tribunal may:(a) confirm the decision, or(b) amend the decision, or(c) set aside the decision and substitute a new decision.(5) If a decision is amended or substituted, the decision as amended or substituted has effect as if it had been made in that form by the Director-General.(6) If the Tribunal sets aside a decision to suspend a councillor, any fee or other remuneration withheld under the suspension is payable to the councillor.(7) The regulations may make provision for or with respect to the making, hearing and determination of appeals under this section.
440M Expenses to be borne by council
(1) The Director-General may recover from a council the reasonable expenses incurred by or in respect of the Department in the conduct of an investigation into a councillor of the council under this Division.(2) The Director-General may make a determination of the amount of the expenses referred to in subsection (1) and serve a notice on the council requiring the amount so determined be paid in recovery of the Department’s expenses.(3) An amount equal to the expenses as so determined is payable to the Department as a debt by the council concerned, except as determined by the Director-General.(4) The council may apply to the Administrative Decisions Tribunal for a review of whether any part of the expenses so determined are not reasonable expenses.(5) The Director-General must give effect to any decision of the Tribunal on a review of the determination of the amount of the expenses.(6) A reference in this section to expenses incurred includes a reference to remuneration paid to departmental staff.
440N Investigation of former councillors
(1) The Director-General may conduct an investigation for the purpose of determining whether a former councillor engaged in misconduct during the period in which the former councillor was a councillor.(2) For that purpose, sections 440H and 440M apply as if a reference in those sections to a councillor includes a reference to a former councillor.(3) The Director-General may before, during or after an investigation into an allegation of misconduct by a former councillor decide to refer the matter to the Pecuniary Interest and Disciplinary Tribunal for consideration.(4) Section 440J applies to the referral of the matter to the Tribunal in the same way as it applies to a referral of a matter relating to a councillor to the Tribunal.
(1) This section applies where, under section 440H, the Director-General directs a natural person to provide any information or produce any document for the purposes of an investigation.(2) A person is not excused from complying with the direction on the ground that the information or document might incriminate the person or make the person liable to a penalty.(3) If the information or document tends to incriminate the person and the person objects to providing the information or producing the document at the time, the fact of the direction or the information or document itself (if produced) may not be used in any criminal proceedings against the person (except in proceedings for an offence relating to the failure to produce a document or information or the production of a document or information that is false or misleading).(4) Despite any such objection, the information or document may be used in connection with an investigation and the taking of disciplinary action against the person under this Division and is admissible in proceedings under this Act relating to misconduct.