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 and Disciplinary Tribunal to be notified of investigations

The Director-General must notify the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal

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

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

Division 2 Proceedings before the Pecuniary Interest and Disciplinary Tribunal—pecuniary interest matters

469   Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal may decide to conduct proceedings into the complaint.

(2)  If the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal not to conduct proceedings into a complaint is not a decision to which section 484 (Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions) or 485 (Appeals to Supreme Court) applies.

470   Circumstances in which Pecuniary Interest and Disciplinary 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 and Disciplinary 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 and Disciplinary Tribunal to determine proceedings into a complaint without a hearing is a decision to which sections 484 (Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions) and 485 (Appeals to Supreme Court) apply.

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

Division 3 Proceedings before the Pecuniary Interest and Disciplinary Tribunal—misbehaviour matters

470A   Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a referred matter relating to misbehaviour

(1)  After considering a report presented to it under section 440N in relation to a referred matter, the Pecuniary Interest and Disciplinary Tribunal may decide to conduct proceedings into the matter.

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

(a)  to the councillor to whom the report relates, and

(b)  to the council concerned, and

(c)  to the Director-General.

(3)  To avoid doubt, a decision by the Pecuniary Interest and Disciplinary Tribunal not to conduct proceedings into a referred matter is not a decision to which section 484 or 485 applies.

470B   Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing

(1)  After considering a report presented to it under section 440N and any other document or other material lodged with or provided to the Tribunal in relation to the report, the Pecuniary Interest and Disciplinary Tribunal may determine the proceedings without a hearing if:

(a)  the Director-General and the councillor to whom the report relates have agreed that the proceedings may be determined without a hearing, and

(b)  there are no material facts in dispute between the Director-General and the councillor, 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 and Disciplinary Tribunal to determine proceedings in a referred matter without a hearing is a decision to which sections 484 and 485 apply.

Division 4 Proceedings before the Pecuniary Interest and Disciplinary Tribunal—general provisions

471   General conduct of proceedings

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

(2)  In the conduct of any proceedings, the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal decides otherwise.

(2)  In reaching such a decision, the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal, a person is entitled to be represented by an Australian legal practitioner.

474   Presentation of cases at hearings

A party to proceedings before the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal, and

(e)  otherwise adduce, orally or in writing, to the Pecuniary Interest and Disciplinary Tribunal such matters, and address the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal may summon a person to appear in proceedings before the Pecuniary Interest and Disciplinary Tribunal, to give evidence and to produce such documents (if any) as are referred to in the summons.

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

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

(b)  to produce, at that time and place, to the Pecuniary Interest and Disciplinary 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 and Disciplinary 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 and Disciplinary 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)  an Australian 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 and Disciplinary 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 an Australian 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 and Disciplinary Tribunal,

      the Australian 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 and Disciplinary 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 and Disciplinary 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 and Disciplinary 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 and Disciplinary 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 and Disciplinary Tribunal, just and equitable in the circumstances.

(4)  If another complaint is taken to have been referred to the Pecuniary Interest and Disciplinary 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.

(5)  This section does not apply to proceedings in relation to a matter referred to the Pecuniary Interest and Disciplinary and Disciplinary Tribunal under section 440N.

479   Adjournments

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

480   Release of information

(1)  The Pecuniary Interest and Disciplinary 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)  in the case of proceedings in relation to a complaint—direct that the name of any witness is not to be disclosed in the proceedings, or

(b)  in the case of proceedings in relation to a complaint—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, or

(c)  in the case of proceedings in relation to a matter referred to the Tribunal under section 440N—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 the councillor to whom the referred matter relates

•  any specified evidence

•  the subject-matter of the referred matter.

(2)  A direction may be amended or revoked at any time by the Pecuniary Interest and Disciplinary 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 and Disciplinary 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, or the councillor to whom the referred matter relates, as appropriate, and

(c)  such other person as the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal is entitled to be paid such allowances and expenses as the Pecuniary Interest and Disciplinary Tribunal may determine in respect of the person.

482   Decision of Pecuniary Interest and Disciplinary Tribunal—pecuniary interest matters

(1)  The Pecuniary Interest and Disciplinary 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, or

(e)  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 6 months (without suspending the councillor from civic office for that period).

(2)  If it finds a complaint against an employee of the council is proved, the Pecuniary Interest and Disciplinary 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 and Disciplinary 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 and Disciplinary 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.

482A   Decision of Pecuniary Interest and Disciplinary Tribunal—misbehaviour matters

(1)  This section applies where a matter has been referred to the Pecuniary Interest and Disciplinary Tribunal under section 440N.

(2)  The Tribunal may, if it finds that the behaviour concerned warrants action under this section:

(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)  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 6 months (without suspending the councillor from civic office for that period).

483   Standard of proof

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

484   Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions

(1)  The Pecuniary Interest and Disciplinary 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 (or to the relevant council in the case of a matter that has been referred to the Tribunal under section 440N) 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 and Disciplinary Tribunal may also:

(a)  provide the statement of a decision to any other persons that the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal under section 480, make any statement of decision provided to the Director-General by the Pecuniary Interest and Disciplinary Tribunal publicly available.

485   Appeals to Supreme Court

(1)  A party to a proceeding before the Pecuniary Interest and Disciplinary Tribunal may appeal to the Supreme Court against any decision of the Pecuniary Interest and Disciplinary Tribunal in the proceeding, other than a decision of the Tribunal determining an appeal to the Tribunal under section 440M.

(2)  An appeal must be made within 28 days after the day on which the statement of the decision of the Pecuniary Interest and Disciplinary 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 and Disciplinary 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 and Disciplinary Tribunal for decision by the Pecuniary Interest and Disciplinary 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 and Disciplinary Tribunal

Despite section 489 (1) and (1A), the Pecuniary Interest and Disciplinary 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.

486A   Contempt of Pecuniary Interest and Disciplinary Tribunal

(1)  The Pecuniary Interest and Disciplinary Tribunal may report the following matters to the Supreme Court:

(a)  if a person refuses to be sworn or to make an affirmation or refuses or otherwise fails to answer any question that is put to the person by the Tribunal after being called or examined as a witness before the Tribunal,

(b)  if, in proceedings before the Tribunal, a person wilfully threatens or insults:

(i)  a member or officer of the Tribunal, or

(ii)  any witness or person summoned to attend before the Tribunal, or

(iii)  an Australian legal practitioner or other person authorised to appear before the Tribunal,

(c)  if a person misbehaves himself or herself in proceedings before the Tribunal,

(d)  if a person interrupts proceedings before the Tribunal.

(2)  If the Pecuniary Interest and Disciplinary Tribunal reports a matter to the Supreme Court under subsection (1), the Court may deal with the matter as if it were a contempt of the Court. However, a person is not liable to be punished for contempt under this subsection if the person establishes that there was a reasonable excuse for the act or omission concerned.

 

Proceedings before the Pecuniary Interest and Disciplinary Tribunal—pecuniary interest matters