Part 2441 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)
Interests specified in Schedule 3 (s 449)✓
×
×
✓
✓
✓
Pecuniary interests (ss 451, 456)✓
✓
✓
×
×
×
Pecuniary interests (s 459)×
×
×
✓
✓
✓
PENALTIES FOR BREACH OF DISCLOSURE REQUIREMENTS (S 482)
Councillor
Committee member
Council adviser
Council employee
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.
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)
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.
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.
(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.