(1) In this Division:misbehaviour 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 as required under section 440 (5),(c) an act of disorder committed by the councillor at a meeting of the council or a committee of the council,but does not include a contravention of the disclosure requirements of Part 2.Note. A contravention of the disclosure requirements of Part 2 is dealt with under other provisions of this Chapter.(2) A reference in this Division to misbehaviour or an incident of misbehaviour includes a reference to misbehaviour that consists of an omission or failure to do something.
440G Formal censure of councillor for misbehaviour
(1) A council may by resolution at a meeting formally censure a councillor for misbehaviour.(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 misbehaved 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 How is the process for suspension of a councillor for misbehaviour initiated?
(1) The process for the suspension of a councillor from civic office is initiated by:(a) a request made by the council by resolution communicated to the Director-General, in which the council states its belief that grounds may exist that warrant the councillor’s suspension, or(b) a request made by the Director-General to the council for a report from the council in relation to the councillor’s alleged misbehaviour, or(c) a report made by the Ombudsman in which the Ombudsman states that the Ombudsman is satisfied that grounds exist that warrant the councillor’s suspension, or(d) a report made by the Independent Commission Against Corruption in which the Commission recommends that consideration be given to suspending the councillor under this Division.(2) The council must make a report to the Director-General requested under subsection (1) (b) before the date specified in the Director-General’s request or any later date allowed by the Director-General.(3) This section authorises such requests and reports to be made, and a reference in this section to a report made by the Independent Commission Against Corruption or the Ombudsman is a reference to a report made to the Director-General under the authority of this subsection or under any other provisions of this or any other Act.(4) Nothing in this section affects any function under any other provisions of this or any other Act that authorises the making of a report or recommendation concerning suspension of a councillor from civic office.
440I What are the grounds on which a councillor may be suspended?
(1) The grounds on which a councillor may be suspended from civic office under this Division are that:(a) the councillor’s behaviour has:(i) been disruptive over a period, and(ii) involved more than one incident of misbehaviour during that period,and the pattern of behaviour during that period is of such a sufficiently serious nature as to warrant the councillor’s suspension, or(b) the councillor’s behaviour has involved one incident of misbehaviour that is of such a sufficiently serious nature as to warrant the councillor’s suspension.(2) The process for the suspension of a councillor from civic office cannot be initiated by a request made by the council unless:(a) where subsection (1) (a) applies—the councillor has:(i) on two or more occasions been formally censured for incidents of misbehaviour that occurred during the period concerned, or(ii) on at least one occasion been expelled from a meeting of the council or a committee of the council for an incident of misbehaviour during the period concerned, or(b) where subsection (1) (b) applies—the councillor has:(i) been formally censured for the incident of misbehaviour concerned, or(ii) been expelled from a meeting of the council or a committee of the council for the incident of misbehaviour concerned.(3) Subsection (2) does not affect the Director-General’s power to initiate the process for the suspension of a councillor from civic office.(4) Furthermore, subsection (2) does not prevent the Director-General from initiating the process for the suspension of a councillor from civic office as a result of a request or report referred to in section 440H.
440J How are requests and reports dealt with?
(1) The Director-General may arrange for a departmental report to be prepared into the matters raised by or connected with a request or report referred to in section 440H.(2) The Director-General may authorise a member of the staff of the Department to conduct an investigation into any or all of those matters to assist in the preparation of the departmental report.(3) The preparation of a departmental report is a prerequisite to a decision by the Director-General to suspend the councillor from office, but is not necessary if the Independent Commission Against Corruption or the Ombudsman states in a report that the Commission or Ombudsman is satisfied that grounds exist that warrant the councillor’s suspension.(4) In this Division, departmental report means a report prepared by a person authorised by the Director-General to do so.
440K Suspension by Director-General for misbehaviour
(1) The Director-General may by order in writing suspend a councillor from civic office for a period not exceeding one month:(a) if the Director-General has considered a departmental report into the matters concerned and is satisfied that grounds exist that warrant the councillor’s suspension, or(b) if the Independent Commission Against Corruption or the Ombudsman states in a report that the Commission or Ombudsman is satisfied that grounds exist that warrant the councillor’s suspension.(2) A copy of the order must be served on the councillor.(3) A councillor, 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 he or she would otherwise be entitled as the holder of the civic office.
440L When does an order of suspension take effect?
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.
440M Appeals against suspension
(1) A councillor against whom an order of suspension is made by the Director-General may appeal against the order to the Pecuniary Interest and Disciplinary Tribunal.(2) Such an appeal may not be made more than 28 days after the date the order was served on the councillor.(3) The Tribunal may stay the order of suspension until such time as the Tribunal determines the appeal.(4) The Tribunal may:(a) confirm the order, or(b) quash the order, or(c) amend the order consistently with the powers of the Director-General.(5) If the order is quashed, any fee or other remuneration withheld is payable to the councillor.(6) If the order is amended, the order as amended has effect as if it had been made in that form by the Director-General.(7) The regulations may make provision for or with respect to the making, hearing and determination of appeals under this section.
440N Referral of matters to Pecuniary Interest and Disciplinary Tribunal
(1) The Director-General may refer a matter that is the subject of a request or report referred to in section 440H for consideration by the Pecuniary Interest and Disciplinary Tribunal instead of suspending the councillor concerned under this Division.(2) However, a matter that is the subject of a request by a council may not be referred to the Tribunal unless the councillor concerned has previously been suspended under this Chapter for misbehaviour.(3) The preparation and consideration of a departmental report is not a prerequisite to a decision by the Director-General to refer a matter to the Tribunal, but the Director-General may take into consideration a departmental report into the matter if one is prepared.(4) 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.(5) The regulations may make provision for or with respect to the reference of matters to the Tribunal under this section.
440O Are there alternatives to suspension or referral to Pecuniary Interest and Disciplinary Tribunal?
(1) The Director-General may, after considering a request or report made under section 440H and any relevant departmental report prepared under section 440J, decide to take no further action on the request or report, whether or not a departmental investigation or departmental report has been authorised, started or completed, if satisfied that no further action is warranted.(2) The Director-General may, instead of suspending a councillor from civic office under this Division or referring the matter to the Pecuniary Interest and Disciplinary Tribunal, refer the matter to the council with recommendations as to how the council might resolve the matter, by alternative dispute resolution or otherwise.
440P Expenses to be borne by council
(1) The Director-General may recover the reasonable expenses incurred by or in respect of the Department in considering and dealing with a request made by a council under section 440H from the council, including the expenses of any departmental investigation and departmental report into the matters raised by or connected with the request.(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.
(1) The Director-General is required to prepare a written statement of reasons for:(a) imposing or deciding not to impose a period of suspension, or(b) referring a matter to the Pecuniary Interest and Disciplinary Tribunal.(2) The statement of reasons is to be provided to the council and councillor concerned.