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Contents (1993 - 30)
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Local Government Act 1993 No 30
Current version for 25 June 2019 to date (accessed 23 October 2019 at 06:46)
Chapter 14 Part 1 Division 3
Division 3 Misconduct
440F   Definitions
(1)  In this Chapter:
misconduct of a councillor means any of the following:
(a)  a contravention by the councillor of this Act or the regulations,
(b)  a failure by the councillor to comply with an applicable requirement of a code of conduct,
(c)  a failure by a councillor to comply with an order issued by the Departmental Chief Executive under this Division,
(d)  an act of disorder committed by the councillor at a meeting of the council or a committee of the council,
(e)  an act or omission of the councillor intended by the councillor to prevent the proper or effective functioning of the council or a committee of the council.
(2)  For the purposes of determining whether a person has engaged in misconduct, the person does not breach a provision of a code of conduct that requires the disclosure of a pecuniary interest if the person did not know and could not reasonably be expected to have known that the matter under consideration at a meeting was a matter in which the person had a pecuniary interest.
(3)  A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something.
440G   Formal censure of councillor for misconduct
(1)  A council may by resolution at a meeting formally censure a councillor for misconduct.
(2)    (Repealed)
(3)  A council may pass a formal censure resolution only if it is satisfied that the councillor has engaged in misconduct on one or more occasions.
(4)  The council must specify in the formal censure resolution the grounds on which it is satisfied that the councillor should be censured.
(5)  A motion for a formal censure resolution may, without limitation, be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council.
440H   Departmental Chief Executive may investigate or seek report on misconduct of councillor
(1)  The Departmental Chief Executive may conduct an investigation for the purpose of determining whether a councillor has engaged in misconduct.
(2)  The Departmental Chief Executive may conduct such an investigation:
(a)  on his or her own initiative, or
(b)  if the general manager of a council refers an allegation of misconduct by a councillor to the Departmental Chief Executive, or
(c)  if a council, by resolution, refers an allegation of misconduct by a councillor to the Departmental Chief Executive, or
(d)  if the Ombudsman states in a report that the Ombudsman is satisfied that a councillor has or may have engaged in misconduct, or
(e)  if the Independent Commission Against Corruption states in a report that the Commission is satisfied that a councillor has or may have engaged in misconduct.
(3)  For the purpose of an investigation, the Departmental Chief Executive may, by order in writing served on any person, direct the person to do any one or more of the following:
(a)  provide written information, by the date specified in the order, and to verify the information by statutory declaration,
(b)  produce, at a time and place specified in the order, any document specified in the order that is in the person’s custody or control.
Note.
 Failure to comply with the direction is an offence under section 661.
(3A)  However, the Departmental Chief Executive is to withdraw the direction if it appears to the Departmental Chief Executive that:
(a)  the person does not consent to compliance with the direction, and
(b)  the person would not, in court proceedings, be required to comply with a similar direction on grounds of privilege against self-incrimination or legal professional privilege, and
(c)  the privilege is not a privilege in favour of a public authority or former public authority,
(and, if the direction is required to be withdrawn, the person is not guilty of an offence against section 661).
(4)  The Departmental Chief Executive may take copies of or extracts from any document to which the Departmental Chief Executive gains access under this section.
(5)  The Departmental Chief Executive may arrange for a departmental report to be prepared in relation to an investigation conducted under this section.
(5A)  The Departmental Chief Executive may arrange for a departmental report to be prepared about whether a councillor has engaged in misconduct without an investigation being carried out under this section if:
(a)  the matter has been referred to the Departmental Chief Executive by the council and the Departmental Chief Executive is of the opinion that the report may be based on the findings of an investigation conducted by or on behalf of the council, or
(b)  the Departmental Chief Executive is of the opinion that the alleged misconduct, if proven, would be minor in nature and, were it to warrant disciplinary action, the disciplinary action would be comprised only of counselling or reprimanding the councillor, or
(c)  the Departmental Chief Executive otherwise considers it appropriate to do so.
(6)  The preparation of a departmental report is a prerequisite to a decision by the Departmental Chief Executive to take disciplinary action against a councillor, unless the disciplinary action is taken on the basis of a report by the Ombudsman or Independent Commission Against Corruption.
(7)  This section authorises reports relating to misconduct to be made by the Ombudsman or Independent Commission Against Corruption and a reference to a report of the Ombudsman or Independent Commission Against Corruption is a reference to a report made to the Departmental Chief Executive under the authority of this subsection or under any other provision of this or any other Act.
(8)  The powers conferred on the Departmental Chief Executive by this section may also be exercised for the purposes of determining if an administrator has engaged in conduct that would be misconduct if the administrator were a councillor.
(9)  In this section:
administrator means an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66).
440I   Departmental Chief Executive may take disciplinary action for misconduct
(1)  The Departmental Chief Executive may take disciplinary action against a councillor if the Departmental Chief Executive is satisfied that:
(a)  the councillor has engaged in misconduct (whether on the basis of a departmental report or a report by the Ombudsman or Independent Commission Against Corruption), and
(b)  disciplinary action is warranted.
(2)  The Departmental Chief Executive may take one or more of the following actions (and any such action is disciplinary action):
(a)  counsel the councillor,
(b)  reprimand the councillor,
(c)  by order, direct the councillor to cease engaging in the misconduct,
(d)  by order, direct the councillor to apologise for the misconduct in the manner specified in the order,
(e)  by order, direct the councillor to undertake training,
(f)  by order, direct the councillor to participate in mediation,
(g)  by order, suspend the councillor from civic office for a period not exceeding 3 months,
(h)  by order, suspend the councillor’s right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 3 months (without suspending the councillor from civic office for that period).
(3)  In determining which disciplinary action, if any, to take against a councillor who has engaged in misconduct, the Departmental Chief Executive may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters.
(3A)  Before taking disciplinary action against a councillor, the Departmental Chief Executive is to:
(a)  give the councillor written notice:
(i)  specifying the grounds on which it is proposed to take disciplinary action against the councillor, and
(ii)  specifying the disciplinary action that the Departmental Chief Executive proposes to take against the councillor, and
(iii)  inviting the councillor to make submissions within a specified period (of not less than 14 days) about the proposal, and
(b)  consider any submissions made by the councillor in accordance with the notice.
(4)  The Departmental Chief Executive is to notify the councillor of any decision to take disciplinary action under this section and the reasons for the decision.
(5)  A copy of the decision and the statement of reasons for the decision are to be provided to the council.
(6)  The Departmental Chief Executive is to make any decision to suspend a councillor from civic office or to suspend a councillor’s right to be paid any fee or other remuneration under this section, and the statement of reasons for the decision, publicly available.
(7)  The Departmental Chief Executive may make any other decision to take disciplinary action against a councillor, and the statement of reasons for the decision, publicly available.
(8)  No liability (including liability in defamation) is incurred for making a decision publicly available as permitted or required by this section or for publishing in good faith a fair report or summary of such a decision.
440J   Alternatives to disciplinary action by the Departmental Chief Executive
(1)  The Departmental Chief Executive may before, during or after an investigation into an allegation of misconduct by a councillor decide to take no further action against the councillor, if satisfied that no further action is warranted.
(2)  The Departmental Chief Executive may, instead of taking disciplinary action against a councillor:
(a)  refer the matter to the council concerned with recommendations as to how the council might resolve the matter, by alternative dispute resolution or otherwise, or
(b)  refer the matter to the Civil and Administrative Tribunal for consideration.
(3)  A matter is referred to the Tribunal under this section by means of a report presented to the Tribunal by the Departmental Chief Executive. A report may contain or be accompanied by such material and observations as the Departmental Chief Executive thinks fit.
(4)  The Departmental Chief Executive is to notify the councillor concerned of any decision to refer the matter to the Tribunal.
(5)  The regulations may make provision for or with respect to the reference of matters to the Tribunal under this section.
440K   Suspension of a councillor
(1)  A councillor, while suspended from office under this Division:
(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, or to the payment of expenses or to the use of council facilities, to which he or she would otherwise be entitled as the holder of the civic office.
(2)  The period of suspension under an order made by the Departmental Chief Executive commences on the date 7 days after the service of the order on the councillor or the date specified in the order for the commencement of the period of suspension, whichever is the later.
440L   Appeals against disciplinary action
(1)  A councillor against whom disciplinary action (other than disciplinary action comprised only of counselling or reprimanding) is taken by the Departmental Chief Executive may appeal to the Civil and Administrative Tribunal against the decision of the Departmental Chief Executive to take disciplinary action.
Note.
 An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.
(2)  An appeal must be made within 28 days after the day on which the councillor is notified of the Departmental Chief Executive’s decision to take disciplinary action against the councillor.
(3)  The Tribunal may stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines the appeal.
(3A)  If the Tribunal stays a decision for suspension of a councillor for misconduct that has resulted or will result in disqualification from civic office under section 275 (1A), the disqualification ceases to have effect or does not take effect (as the case requires) until such time as the appeal is finally determined or withdrawn.
(4)  On hearing the appeal, the Tribunal may:
(a)  confirm the decision, or
(b)  amend the decision, or
(c)  set aside the decision and substitute a new decision.
(5)  If a decision is amended or substituted, the decision as amended or substituted has effect as if it had been made in that form by the Departmental Chief Executive.
(6)  If the Tribunal sets aside a decision to suspend a councillor, any fee or other remuneration, or expenses, withheld under the suspension is payable to the councillor and any disqualification that resulted from the suspension ceases to have effect.
(7)    (Repealed)
440M   Expenses to be borne by council
(1)  The Departmental Chief Executive may recover from a council the reasonable expenses incurred by or in respect of the Department in the conduct of an investigation into a councillor of the council under this Division.
(2)  The Departmental Chief Executive 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 Departmental Chief Executive.
(4)  The council may apply to the Civil and Administrative Tribunal for an administrative review of whether any part of the expenses so determined are not reasonable expenses.
(5)  The Departmental Chief Executive must give effect to any decision of the Tribunal on an administrative review of the determination of the amount of the expenses.
(6)  A reference in this section to expenses incurred includes a reference to remuneration paid to departmental staff.
440N   Investigation of former councillors
(1)  The Departmental Chief Executive may conduct an investigation for the purpose of determining whether a former councillor engaged in misconduct during the period in which the former councillor was a councillor.
(2)  For that purpose, sections 440H and 440M apply as if a reference in those sections to a councillor includes a reference to a former councillor.
(3)  The Departmental Chief Executive may before, during or after an investigation into an allegation of misconduct by a former councillor decide to refer the matter to the Civil and Administrative Tribunal for consideration.
(4)  Section 440J applies to the referral of the matter to the Tribunal in the same way as it applies to a referral of a matter relating to a councillor to the Tribunal.
440O   Self-incrimination
(1)  This section applies where, under section 440H, the Departmental Chief Executive directs a natural person to provide any information or produce any document for the purposes of an investigation.
(2)  A person is not excused from complying with the direction on the ground that the information or document might incriminate the person or make the person liable to a penalty.
(3)  If the information or document tends to incriminate the person and the person objects to providing the information or producing the document at the time, the fact of the direction or the information or document itself (if produced) may not be used in any criminal proceedings against the person (except in proceedings for an offence relating to the failure to produce a document or information or the production of a document or information that is false or misleading).
(4)  Despite any such objection, the information or document may be used in connection with an investigation and the taking of disciplinary action against the person under this Division and is admissible in proceedings under this Act relating to misconduct.
440P   Service of departmental documents
(1)  Any order, notice or other document that the Departmental Chief Executive is required to serve on or give to a person under this Division may be served on or given to the person by electronic means if the person has given the Department an email address for the service of documents.
(2)  Service is effected when a copy of the order, notice or other document is sent to that email address.
(3)  This section does not prevent service by post or by any other method permitted by or under this Act.
440Q   (Repealed)