Local Government Act 1993 No 30
Current version for 1 July 2020 to date (accessed 9 August 2020 at 01:41)
Chapter 14 Part 3
Part 3 Complaints concerning non-disclosure and proceedings before NCAT
Division 1 Making and investigation of complaints
460   Complaints concerning failure to disclose pecuniary interests
(1)  A person may make a complaint to the Departmental Chief Executive, or the Departmental Chief Executive may make a complaint, that a person (other than a councillor, former councillor, administrator or former administrator) has or may have contravened a pecuniary interests duty.
(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(d)    (Repealed)
(e)  must be lodged with the Departmental Chief Executive.
(3)  The provisions of subsection (2)(b), in so far as they require a complaint to identify the complainant, and (e) do not apply to a complaint made by the Departmental Chief Executive.
461   Departmental Chief Executive may require further information
The Departmental Chief Executive may require the complainant to provide further particulars of the complaint within the time specified by the Departmental Chief Executive.
462   Investigation of complaints
(1)  The Departmental Chief Executive may investigate a complaint.
(2)  The Departmental Chief Executive 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 Departmental Chief Executive has begun to investigate the complaint.
(3)  The Departmental Chief Executive 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 Departmental Chief Executive may decide to take no action concerning a complaint (including a complaint referred to in section 464(2)) if the Departmental Chief Executive 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 Departmental Chief Executive.
(2)  If the Departmental Chief Executive decides to take no action concerning a complaint (including a complaint referred to in section 464(2)), the Departmental Chief Executive 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 Departmental Chief Executive) for the purpose of investigation is authorised by this Act to refer the matter to the Departmental Chief Executive if the matter involves a possible contravention of pecuniary interests duties by a person (other than a councillor, former councillor, administrator or former administrator).
(2)  A matter referred to the Departmental Chief Executive under this section is taken to be a complaint made by the Departmental Chief Executive.
465   NCAT to be notified of investigations
The Departmental Chief Executive must notify the Civil and Administrative 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 Departmental Chief Executive must, within 3 months after receiving a complaint, making a complaint or having a matter referred to the Departmental Chief Executive 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 Departmental Chief Executive 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 Departmental Chief Executive 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 a pecuniary interests duty (whether or not the allegation was referred for investigation by the Departmental Chief Executive), is authorised by this Act to send any report prepared by the authority concerning the investigation to the Departmental Chief Executive.
468   Presentation of reports to NCAT
(1)  The Departmental Chief Executive must present a report to the Civil and Administrative Tribunal of an investigation into a complaint carried out by the Departmental Chief Executive.
(2)  The Departmental Chief Executive must present to the Civil and Administrative Tribunal any report received under section 467 from an authority.
Division 2 Proceedings before NCAT—pecuniary interests matters not involving councillors or administrators
469   NCAT 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 Civil and Administrative Tribunal may decide to conduct proceedings into the complaint.
(2)  If the Civil and Administrative 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 Departmental Chief Executive.
(3)    (Repealed)
470   Circumstances in which NCAT may dispense with hearing
(1)  After considering the report of the Departmental Chief Executive and any other document or other material lodged with or provided to the Tribunal, the Civil and Administrative 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)    (Repealed)
Division 3 Proceedings before NCAT—misconduct matters
470A   NCAT to decide whether or not to conduct proceedings into a referred matter relating to misconduct
(1)  After considering a report presented to it under section 438HA or 440J in relation to a referred matter, the Civil and Administrative Tribunal may decide to conduct proceedings into the matter.
(2)  If the Civil and Administrative 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 Departmental Chief Executive.
(3)    (Repealed)
470B   Circumstances in which NCAT may dispense with hearing
(1)  After considering a report presented to it under section 438HA or 440J and any other document or other material lodged with or provided to the Tribunal in relation to the report, the Civil and Administrative Tribunal may determine the proceedings without a hearing if—
(a)  the Departmental Chief Executive 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 Departmental Chief Executive and the councillor, and
(c)  in the opinion of the Tribunal, public interest considerations do not require a hearing.
(2)    (Repealed)
Division 4 Proceedings before NCAT—general provisions
471–477   (Repealed)
478   Additional complaints
(1)  The Civil and Administrative 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 Civil and Administrative 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 Civil and Administrative 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 Civil and Administrative Tribunal under subsection (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Civil and Administrative Tribunal, just and equitable in the circumstances.
(4)  If another complaint is taken to have been referred to the Civil and Administrative 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 Civil and Administrative Tribunal under section 440J.
479–481   (Repealed)
482   Decision of NCAT—pecuniary interests matters not involving councillors or administrators
(1)  This section applies to complaints relating to breaches of pecuniary interests duties by persons other than councillors, former councillors, administrators or former administrators.
(2)  If it finds a complaint against an employee of the council is proved, the Civil and Administrative 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 Civil and Administrative 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 Civil and Administrative 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.
(4A)  The Civil and Administrative Tribunal may, if it finds a complaint against a delegate of a council (other than the general manager of a council) is proved—
(a)  counsel the delegate, or
(b)  reprimand the delegate, or
(c)  suspend the delegate from acting as a delegate for a period not exceeding 6 months, or
(d)  disqualify the delegate from being a delegate of that council for a period not exceeding 5 years.
(5)  In determining which action, if any, to take against a person under this section, the Tribunal may take into account any previous complaints proved against the person, any action previously taken against the person and any other relevant matters.
(6)    (Repealed)
482A   Decision of NCAT—misconduct matters
(1)  This section applies where a matter has been referred to the Civil and Administrative Tribunal under section 438HA or 440J.
(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
(c1)  disqualify the councillor from holding civic office for a period not exceeding 5 years, 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).
(3)  In determining which action, if any, to take against a councillor, the Tribunal 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.
(4)  In this section, councillor includes a former councillor.
483–485   (Repealed)
486   Referral of matters by NCAT
Despite section 489(1) and (1A), the Civil and Administrative Tribunal may refer a matter before it under this Act 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   Exclusive jurisdiction of NCAT over pecuniary interests contraventions (other than by councillors and administrators)
(1)  The Civil and Administrative Tribunal has exclusive jurisdiction at first instance to decide allegations of contraventions of a pecuniary interests duty by a person other than a councillor, a former councillor, an administrator or a former administrator.
(2)  Accordingly, proceedings at first instance to decide allegations of contraventions of a pecuniary interests duty by a person other than a councillor, a former councillor, an administrator or a former administrator may not be brought before, or entertained by, any other tribunal or any court.