Part 10 Honesty and disclosure of interests
(cf Chapter 14 of Local Government Act 1993)
Division 1 Honesty, care and diligence
176 Conduct of councillors, Board members and staff of Aboriginal Land Councils
(cf section 439 of Local Government Act 1993)
(1) Every councillor, Board member and member of staff of an Aboriginal Land Council or an advisory committee, must:(a) act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act, and(b) act for a proper purpose in carrying out his or her functions under this or any other Act, and(c) not use his or her office or position for personal advantage, and(d) not use his or her office or position to the detriment of an Aboriginal Land Council.(2) Although this section places certain duties on officers and members of staff of a Council, and on councillors, nothing in this section gives rise to, or can be taken into account in, any civil cause of action.
(cf section 440 of Local Government Act 1993)
(1) Every Local Aboriginal Land Council must, within such period as the Registrar directs, prepare and submit to the Registrar for approval a code of conduct to be observed by all officers and members of staff of the Council.(2) The New South Wales Aboriginal Land Council must, within such period as the Registrar directs, prepare and submit to the Registrar for approval a code of conduct to be observed by all councillors and members of staff of the Council.(3) An Aboriginal Land Council may, with the approval of the Registrar, amend or replace its code of conduct.(4) The Registrar may prepare and issue a model code of conduct. A Council may, but need not, adopt the model code.(5) A code of conduct prepared in accordance with this section may declare that the breach of a specified provision of the code (a dismissal provision):(a) by a Board member of a Local Aboriginal Land Council—allows the Council by majority vote to remove that person from office, or(b) (Repealed)(c) by a councillor of the New South Wales Aboriginal Land Council—causes a councillor to vacate his or her office as councillor.(6) Until a code of conduct for an Aboriginal Land Council is approved by the Registrar in accordance with this section, the code of conduct prescribed by the regulations is the code of conduct for that Aboriginal Land Council.
Division 3 Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal
178 Establishment of Pecuniary Interest and Disciplinary Tribunal
(cf section 487 of Local Government Act 1993)
For the purposes of this Part, there is established a tribunal to be known as the Aboriginal Land Councils Pecuniary Interest and Disciplinary Tribunal.
179 Constitution of Pecuniary Interest and Disciplinary Tribunal
(cf section 488 of Local Government Act 1993)
(1) The Pecuniary Interest and Disciplinary Tribunal consists of one part-time member, appointed by the Governor, who is an Australian legal practitioner 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 an officer or a member of staff of an Aboriginal Land Council or a councillor.(3) Schedule 2 has effect with respect to the Pecuniary Interest and Disciplinary Tribunal.
180 Functions of Pecuniary Interest and Disciplinary Tribunal
(cf section 489 of Local Government Act 1993)
(1) The Pecuniary Interest and Disciplinary Tribunal has exclusive jurisdiction at first instance to decide allegations of contraventions of Division 4.(2) Accordingly, proceedings at first instance to decide allegations of contraventions of Division 4 may not be brought before, or entertained by, any other tribunal or any court.(3) The Pecuniary Interest and Disciplinary Tribunal has such other functions as are conferred or imposed on it by or under this or any other Act.
(cf section 490 of Local Government Act 1993)
The Pecuniary Interest and Disciplinary 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.
(cf section 440F of Local Government Act 1993)
(1) In this Division:member of staff means a member of staff of, or a consultant to, an Aboriginal Land Council.
misbehaviour of a person means any of the following:
(a) a contravention by the person of this Act or the regulations,(b) a failure by the person to comply with an applicable code of conduct,(c) if the person is a councillor or a Board member—an act of disorder committed by a councillor at a meeting of the New South Wales Aboriginal Land Council or by a Board member at a meeting of the Board or of the Local Aboriginal Land Council,but does not include a contravention of the disclosure requirements of Division 4.(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.
181B Formal censure for misbehaviour
(cf section 440G of Local Government Act 1993)
(1) The New South Wales Aboriginal Land Council may by resolution at a meeting formally censure a councillor or a member of staff of the Council for misbehaviour.(2) A Local Aboriginal Land Council or a Board of a Council may by resolution at a meeting formally censure a Board member or member of staff of the Council for misbehaviour.(3) A formal censure resolution may be passed only if the Council or Board is satisfied that the person has misbehaved on one or more occasions.(4) The Council or Board must specify in the formal censure motion the grounds on which it is satisfied that the person should be censured.
181C Process for initiating suspension or other action
(cf section 440H of Local Government Act 1993)
(1) The process for the suspension of, or taking action against, a person is initiated by:(a) a request made by the New South Wales Aboriginal Land Council or Local Aboriginal Land Council or Board by resolution communicated to the Registrar, in which the Council or Board states its belief that grounds may exist that warrant a councillor’s or Board member’s expulsion or action being taken against a member of staff of the Council concerned, or(b) a request made by the Registrar to the Council or Board for a report from the Council or Board in relation to a councillor’s or Board member’s or member of staff’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 or Board member’s suspension or action being taken against a member of staff, or(d) a report made by the Independent Commission Against Corruption in which the Commission recommends that consideration be given to suspending a councillor or Board member or taking action against a member of staff under this Division.(2) The Council or Board must make a report to the Registrar requested under subsection (1) (b) before the date specified in the Registrar’s request or any later date allowed by the Registrar.(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 Registrar 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 provision of this or any other Act that authorises the making of a report or recommendation concerning suspension of a councillor or Board member or taking action against a member of staff.
181D Grounds on which a person may be suspended or action taken
(cf section 440I of Local Government Act 1993)
(1) The grounds on which a councillor or Board member may be suspended from office or action taken against a member of staff under this Division are as follows:(a) the person’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 person’s suspension or the action being taken,(b) the person’s behaviour has involved one incident of misbehaviour that is of such a nature as to warrant the person’s suspension or the action being taken.(2) The process for the suspension of or taking other action against a person cannot be initiated by a request made by an Aboriginal Land Council or a Board unless:(a) where subsection (1) (a) applies—the person has:(i) on 2 or more occasions been formally censured for incidents of misbehaviour that occurred during the period concerned, or(ii) in the case of a councillor or Board member—on at least one occasion been expelled from a meeting of the Council or Board for an incident of misbehaviour during the period concerned, or(b) where subsection (1) (b) applies—the person has:(i) been formally censured for the incident of misbehaviour concerned, or(ii) in the case of a councillor or Board member—been expelled from a meeting of the Council or Board for the incident of misbehaviour concerned.(3) Subsection (2) does not affect the Registrar’s power to initiate the process for the suspension of a person or to take action against a member of staff.(4) Furthermore, subsection (2) does not prevent the Registrar from initiating the process for the suspension of a person as a result of a request or report referred to in section 181C.
181E How requests and reports are to be dealt with
(cf section 440J of Local Government Act 1993)
(1) The Registrar may conduct an investigation into any or all of the matters raised by or connected with a request or report referred to in section 181C or authorise an investigator referred to in section 216 to conduct such an investigation and to prepare a report into those matters.(2) The conduct of an investigation by the Registrar or the preparation of a report by an investigator is a prerequisite to a decision by the Registrar to suspend the councillor or Board member from office or take action against a member of staff, 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 person’s suspension or action being taken.
181F Suspension by Registrar for misbehaviour
(cf section 440K of Local Government Act 1993)
(1) The Registrar may by order in writing suspend a councillor or Board member from office for a period not exceeding 3 months:(a) if the Registrar has conducted an investigation or considered an investigator’s report into the matters concerned and is satisfied that grounds exist that warrant the person’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 or Board member’s suspension.(2) A copy of the order must be served on the councillor or Board member.(3) A councillor or Board member, while suspended from office under this section:(a) is not entitled to exercise any functions of the 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 office.
181G When suspension order takes effect
(cf section 440L of Local Government Act 1993)
The period of suspension under an order made by the Registrar commences on the date 7 days after the service of the order on the councillor or Board member or the date specified in the order for the commencement of the period of suspension, whichever is the later.
181H Appeals against suspension
(cf section 440M of Local Government Act 1993)
(1) A councillor or Board member against whom an order of suspension is made by the Registrar 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 Registrar.(5) If the order is quashed, any fee or other remuneration withheld is payable to the councillor or Board member.(6) If the order is amended, the order as amended has effect as if it had been made in that form by the Registrar.(7) The regulations may make provision for or with respect to the making, hearing and determination of appeals under this section.
181I Actions by Registrar against members of staff for misbehaviour
(1) The Registrar may take action under this section in relation to a member of staff:(a) if the Registrar has conducted an investigation or considered an investigator’s report into the matters concerned and is satisfied that grounds exist that warrant the action, 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 taking of action.(2) The Registrar may:(a) counsel the member of staff, or(b) reprimand the member of staff, or(c) recommend that the Council take disciplinary action against the member of staff (including counselling or reprimanding the member of staff), or(d) recommend dismissal of the member of staff.
181J Appeals against action against members of staff
(1) A member of staff against whom a decision is made by the Registrar to take action may appeal against the decision to the Pecuniary Interest and Disciplinary Tribunal.(2) Such an appeal may not be made more than 28 days after the date notice of the decision was served on the member of staff.(3) The Tribunal may stay the decision until such time as the Tribunal determines the appeal.(4) The Tribunal may:(a) confirm the decision, or(b) quash the decision, or(c) amend the decision consistently with the powers of the Registrar.(5) If the decision is amended, the decision as amended has effect as if it had been made in that form by the Registrar.(6) The regulations may make provision for or with respect to the making, hearing and determination of appeals under this section.
181K Referral of matters to Pecuniary Interest and Disciplinary Tribunal
(cf section 440N of Local Government Act 1993)
(1) The Registrar may refer a matter that is the subject of a request or report referred to in section 181C for consideration by the Pecuniary Interest and Disciplinary Tribunal instead of suspending the councillor or Board member or taking action against the member of staff concerned under this Division.(2) However, a matter that is the subject of a request by an Aboriginal Land Council or Board may not be referred to the Tribunal unless the councillor or Board member concerned has previously been suspended or dealt with under this Division for misbehaviour.(3) The conduct of an investigation on the preparation and consideration of an investigator’s report is not a prerequisite to a decision by the Registrar to refer a matter to the Tribunal, but the Registrar may take into consideration any such investigation or any investigator’s report 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 Registrar. A report may contain or be accompanied by such material and observations as the Registrar thinks fit.(5) The regulations may make provision for or with respect to the reference of matters to the Tribunal under this section.
181L Alternatives to suspension or referral to Pecuniary Interest and Disciplinary Tribunal
(cf section 440O of Local Government Act 1993)
(1) The Registrar may, after conducting an investigation or considering a request or report made under section 181C and any relevant investigation or investigator’s report prepared under section 181E, decide to take no further action on the request or report, whether or not an investigation or a report by an investigator has been authorised, started or completed, if satisfied that no further action is warranted.(2) The Registrar may, at any time, exercise the power to issue a compliance direction to a councillor or Board member or member of staff under this Act.(3) The Registrar may, instead of suspending a councillor or Board member from office under this Division or taking action in relation to a member of staff or referring the matter to the Pecuniary Interest and Disciplinary Tribunal, refer the matter to the Aboriginal Land Council or Board of a Local Aboriginal Land Council with recommendations as to how the Council or Board might resolve the matter, by alternative dispute resolution or otherwise.
181M Expenses to be borne by Aboriginal Land Councils
(cf section 440P of Local Government Act 1993)
(1) The Registrar may recover the reasonable expenses incurred by or in respect of the Registrar considering and dealing with a request made under section 181C, including the expenses of any investigation by the Registrar or an investigator and investigator’s report into the matters raised by or connected with the request.(2) The Registrar may make a determination of the amount of the expenses referred to in subsection (1) and serve a notice requiring the amount so determined to be paid in recovery of the Registrar’s expenses on:(a) in the case of a councillor or a member of its staff—the New South Wales Aboriginal Land Council, or(b) in the case of a Board member or a member of its staff—the Local Aboriginal Land Council.(3) An amount equal to the expenses as so determined is payable to the Registrar as a debt by the Council concerned, except as determined by the Minister.(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 Registrar must give effect to any decision of that 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 the investigator.
(cf section 440Q of Local Government Act 1993)
(1) The Registrar is required to prepare a written statement of reasons for:(a) imposing or deciding not to impose a period of suspension or taking or deciding not to take action in relation to a member of staff, or(b) referring a matter to the Pecuniary Interest and Disciplinary Tribunal.(2) The statement of reasons is to be provided to the councillor, Board member or member of staff concerned.
181O Other proceedings or actions not affected
Nothing in this Division affects or limits any proceedings or other action that may be taken in respect of a councillor, Board member or member of staff.
Division 4 Duties of disclosure
182 Definition of “pecuniary interest”
(cf section 442 of Local Government Act 1993)
(1) For the purposes of this Part, 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 183.(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.
183 Persons who have pecuniary interests
(cf section 443 of Local Government Act 1993)
(1) For the purposes of this Part, 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 by 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.Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.(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.
Subdivision 2 Disclosure of pecuniary interests at meetings
184 Disclosure and presence in meetings
(cf section 451 of Local Government Act 1993)
(1) An officer or member of staff of an Aboriginal Land Council or a councillor who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.(2) Unless the Aboriginal Land Council determines otherwise, the officer, member of staff or councillor must not be present at, or in sight of, the meeting of the Aboriginal Land Council:(a) at any time during which the matter is being considered or discussed by the Council, or(b) at any time during which the Council is voting on any question in relation to the matter.
185 Disclosures to be recorded
(cf section 453 of Local Government Act 1993)
A disclosure made at a meeting of an Aboriginal Land Council must be recorded in the minutes of the meeting.
(cf section 454 of Local Government Act 1993)
A general notice given to a meeting of an Aboriginal Land Council in writing by an officer or a member of staff of the Aboriginal Land Council or a councillor to the effect that the officer, staff member or councillor, or the officer’s, staff member’s or councillor’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 officer’s, staff member’s or councillor’s interest in a matter relating to the specified company, body or person that may be the subject of consideration by the Council after the date of the notice.
(cf section 456 of Local Government Act 1993)
(1) A consultant, engaged by an Aboriginal Land Council, who gives advice on any matter at any meeting of the Council 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 a consultant.
188 Circumstances in which sections 184 and 187 are not breached
(cf section 457 of Local Government Act 1993)
A person does not breach section 184 or 187 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.
Division 5 Complaints concerning non-disclosure
189 Complaints concerning failure to disclose pecuniary interests
(cf section 460 of Local Government Act 1993)
(1) A person may make a complaint to the Registrar, or the Registrar may make a complaint, that a person has or may have contravened Division 4.(2) A complaint must:(a) be in writing, and(b) identify the complainant and the person against whom the complaint is made, and(c) give particulars of the grounds of the complaint, and(d) be verified by statutory declaration, and(e) be lodged with the Registrar.(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 Registrar.
190 Registrar may require further information
(cf section 461 of Local Government Act 1993)
The Registrar may require the complainant to provide further particulars of the complaint within the time specified by the Registrar.
191 Inquiries regarding complaints
(cf section 462 of Local Government Act 1993)
(1) The Registrar may make inquiries regarding a complaint.(2) The Registrar may decide not to make inquiries regarding a complaint but to request the Minister to appoint an investigator under Division 1 of Part 11 to investigate a matter to which the complaint relates.
192 Decision not to inquire into complaint
(cf section 463 of Local Government Act 1993)
(1) The Registrar may decide to take no action concerning a complaint if the Registrar 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 inquiry,(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 Registrar.(2) If the Registrar decides to take no action concerning a complaint, the Registrar must notify the complainant and give the reasons for the decision, unless the Registrar is the complainant.
193 Referral and investigation of complaints by other authorities
(cf section 464 of Local Government Act 1993)
(1) An authority who receives a matter for the purpose of investigation is authorised by this Act to refer the matter to the Registrar if the matter involves a possible contravention of Division 4.(2) A matter referred to the Registrar under this section is taken to be a complaint made by the Registrar.Note. Authority is defined in section 4 to mean the Ombudsman, the Independent Commission Against Corruption, the Commissioner of Police or the Director of Public Prosecutions.
194 Pecuniary Interest and Disciplinary Tribunal to be notified of inquiries
(cf section 465 of Local Government Act 1993)
The Registrar must notify the Pecuniary Interest and Disciplinary Tribunal of a decision to make inquiries regarding a complaint or to refer a complaint for investigation to an authority.
195 Persons to be notified of complaint
(cf section 466 of Local Government Act 1993)
(1) The Registrar must, within 3 months after receiving a complaint, making a complaint or having a matter referred to the Registrar under section 193, 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 Registrar must, unless the Registrar is the complainant, notify the complainant whether any action has been, or is intended to be, taken concerning the complaint.(3) However, at the time the notice is given to the person against whom the complaint is made, the Registrar is not obliged to notify the complainant of the decision not to make inquiries regarding a complaint if notice of that decision has already been given under section 192 (2).
196 Reports of investigation of complaints by authorities
(cf section 467 of Local Government Act 1993)
An authority who has investigated an allegation that a person has or may have contravened Division 4 (whether or not the allegation was referred for inquiry by the Registrar) is authorised by this Act to send any report prepared by the authority concerning the investigation to the Registrar.Note. Authority is defined in section 4 to mean the Ombudsman, the Independent Commission Against Corruption, the Commissioner of Police or the Director of Public Prosecutions.
197 Presentation of reports to Pecuniary Interest and Disciplinary Tribunal
(cf section 468 of Local Government Act 1993)
(1) The Registrar must present a report to the Pecuniary Interest and Disciplinary Tribunal of the Registrar’s inquiries regarding a complaint carried out by the Registrar.(2) The Registrar must present to the Pecuniary Interest and Disciplinary Tribunal any report received under section 196 from an authority.
Division 6 Proceedings before the Pecuniary Interest and Disciplinary Tribunal
Subdivision 1 Proceedings relating to pecuniary interest matters
198 Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a complaint
(cf section 469 of Local Government Act 1993)
(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 Registrar, unless the Registrar is the complainant.(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 213 (Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions) or 214 (Appeals to Supreme Court) applies.
199 Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing
(cf section 470 of Local Government Act 1993)
(1) After considering the report of the Registrar 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 213 (Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions) and 214 (Appeals to Supreme Court) apply.Note. Section 213 requires the Pecuniary Interest and Disciplinary Tribunal to inform certain parties of decisions in proceedings before it.
Subdivision 2 Proceedings relating to misbehaviour
199A Pecuniary Interest and Disciplinary Tribunal to decide whether or not to conduct proceedings into a referred matter relating to misbehaviour
(cf section 470A of Local Government Act 1993)
(1) After considering a report presented to it under section 181K 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 person to whom the report relates, and(b) to the Council or Board concerned, and(c) to the Registrar.(3) To avoid doubt, a decision by the Pecuniary Interest and Disciplinary Tribunal not to conduct proceedings is not a decision to which section 213 or 214 applies.(4) The Registrar is to be a party to any proceedings conducted by the Pecuniary Interest and Disciplinary Tribunal into a referred matter.
199B Circumstances in which Pecuniary Interest and Disciplinary Tribunal may dispense with hearing
(cf section 470B of Local Government Act 1993)
(1) After considering a report presented to it under section 181K 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 Registrar and the person 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 Registrar and person, 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 not a decision to which section 213 or 214 applies.Note. Section 213 requires the Pecuniary Interest and Disciplinary Tribunal to inform certain parties of decisions in proceedings before it.
Subdivision 3 General provisions
200 General conduct of proceedings
(cf section 471 of Local Government Act 1993)
(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.
201 Private and public hearings
(cf section 472 of Local Government Act 1993)
(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.
202 Representation at hearings
(cf section 473 of Local Government Act 1993)
At a hearing before the Pecuniary Interest and Disciplinary Tribunal, a person is entitled to be represented by an Australian legal practitioner.
203 Presentation of cases at hearings
(cf section 474 of Local Government Act 1993)
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.
204 Power to summon witnesses and take evidence at hearings
(cf section 475 of Local Government Act 1993)
(1) This section applies only to proceedings conducted by hearing.(2) 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.(3) The Pecuniary Interest and Disciplinary Tribunal may require a person appearing in the proceedings to produce a document.(4) 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 or affirmation in a form approved by the Pecuniary Interest and Disciplinary Tribunal, and(b) may administer an oath or affirmation to a person so appearing in the proceedings.(5) 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.(6) 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.
(cf section 476 of Local Government Act 1993)
(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, without reasonable excuse, fails to comply with a notice served on the person under this section is guilty of an offence.Maximum penalty (subsection (2)): 20 penalty units.
206 Privilege concerning answers and documents
(cf section 477 of Local Government Act 1993)
(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.
(cf section 478 of Local Government Act 1993)
(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 199 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 199, to determine proceedings, in relation to the original complaint, any additional complaint or all complaints, without a hearing.
(cf section 479 of Local Government Act 1993)
The Pecuniary Interest and Disciplinary Tribunal may adjourn proceedings for any reason it thinks fit.
(cf section 480 of Local Government Act 1993)
(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) direct that the name of any witness is not to be disclosed in the proceedings, or(b) in the case of a complaint—direct that all or any of the following matters are not to be published:(i) the name and address of any witness,(ii) the name and address of a complainant,(iii) the name and address of the person against whom the complaint was made,(iv) any specified evidence,(v) the subject-matter of a complaint, or(c) in the case of proceedings in relation to a matter referred to the Tribunal under section 181K—direct that all or any of the following matters are not to be published:(i) the name and address of any witness,(ii) the name and address of the person to whom the referred matter relates,(iii) any specified evidence,(iv) 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 person 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 (subsection (4)): 20 penalty units (in the case of an individual) or 150 penalty units (in the case of a corporation).
(cf section 481 of Local Government Act 1993)
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.
211 Decision of Pecuniary Interest and Disciplinary Tribunal—interest matters
(cf section 482 of Local Government Act 1993)
(1) The Pecuniary Interest and Disciplinary Tribunal may, if it finds a complaint against an officer of an Aboriginal Land Council or a councillor is proved:(a) counsel the officer or councillor, or(b) reprimand the officer or councillor, or(c) if the complaint is against a councillor:(i) suspend the councillor from office for a period not exceeding 6 months, or(ii) if the councillor is an officer of the New South Wales Aboriginal Land Council, remove the councillor from that office, or(d) disqualify the officer or councillor from holding office as a councillor or a Board member for a period not exceeding 5 years.Note. Suspension from office as a councillor under this section does not create a casual vacancy in that office.(2) If it finds a complaint against a member of staff of an Aboriginal Land Council is proved, the Pecuniary Interest and Disciplinary Tribunal may:(a) counsel the staff member, or(b) reprimand the staff member, or(c) recommend that the Council take specified disciplinary action against the staff member (including counselling or reprimanding the staff member), or(d) recommend dismissal of the staff member.(3) The Pecuniary Interest and Disciplinary Tribunal may, if it finds a complaint against a consultant to an Aboriginal Land Council is proved:(a) counsel the consultant, or(b) reprimand the consultant, or(c) suspend the consultant from acting as consultant for a period not exceeding 6 months, or(d) disqualify the consultant from acting as a consultant to that Council for a period not exceeding 5 years.
211A 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 181K.(2) The Tribunal may, if it finds that the behaviour concerned of a councillor or Board member warrants action under this section:(a) counsel the councillor or Board member, or(b) reprimand the councillor or Board member, or(c) suspend the councillor or Board member from office for a period not exceeding 6 months, or(d) if the referral relates to a councillor who is an officer of the New South Wales Aboriginal Land Council, remove the councillor from that office, or(e) disqualify the councillor or Board member from holding office as a councillor or Board member for a period not exceeding 5 years.(3) The Tribunal may, if it finds that the behaviour concerned of a member of staff of an Aboriginal Land Council warrants action under this section:(a) counsel the member of staff, or(b) reprimand the member of staff, or(c) recommend that the Council take specified disciplinary action against the member of staff (including counselling or reprimanding the member of staff), or(d) recommend the dismissal of the member of staff, or(e) disqualify the member of staff from holding office in an Aboriginal Land Council for a period not exceeding 5 years.(4) In this section, member of staff has the same meaning as it has in Division 3A.
(cf section 483 of Local Government Act 1993)
A finding of the Pecuniary Interest and Disciplinary Tribunal is to be made on the balance of probabilities.
213 Pecuniary Interest and Disciplinary Tribunal to provide details of its decisions
(cf section 484 of Local Government Act 1993)
(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 Aboriginal Land Council in the case of a matter that has been referred to the Tribunal under section 181K) and, unless the Registrar is that initial complainant, to the Registrar 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 209, make the statement of a decision publicly available.(4) The Registrar may, if he or she thinks fit, and subject to any direction made by the Pecuniary Interest and Disciplinary Tribunal under section 209, make any statement of decision provided to the Registrar by the Pecuniary Interest and Disciplinary Tribunal publicly available.
(cf section 485 of Local Government Act 1993)
(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 181H.(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.
215 Referral of matters by Pecuniary Interest and Disciplinary Tribunal
(cf section 486 of Local Government Act 1993)
Despite section 180 (1) and (2), 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.