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Contents (1993 - 30)
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Local Government Act 1993 No 30
Current version for 8 January 2019 to date (accessed 21 June 2019 at 02:26)
Chapter 14
Chapter 14 Honesty and disclosure of interests
Part 1 Conduct
Division 1 Conduct generally
439AA   Interpretation
(1) Definitions In this Chapter:
code of conduct means a code of conduct adopted under section 440.
model code means the model code of conduct prescribed by the regulations under this Part.
pecuniary interest means 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.
pecuniary interests duty means an obligation imposed on a person by the provisions of a code of conduct that relate to the disclosure of pecuniary interests.
(2) Other persons’ pecuniary interests included as pecuniary interests For the purposes of this Chapter, a person has a pecuniary interest in a matter if the pecuniary interest is the interest of:
(a)  the person, or
(b)  the person’s spouse or de facto partner or a relative of the person, or a partner or employer of the person, or
(c)  a company or other body of which the person, or a nominee, partner or employer of the person, is a shareholder or member.
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) (b) or (c):
(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.
(4) Other exclusions A person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to the matter or if the interest is of a kind specified in a code of conduct as not being required to be disclosed.
439   Conduct of councillors, staff, delegates and administrators
(1)  Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act.
(2)    (Repealed)
(3)  This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.
440   Codes of conduct
(1)  The regulations may prescribe a model code of conduct (the model code) applicable to councillors, members of staff of councils and delegates of councils.
(2)  The regulations may provide that the provisions of the model code relating to the disclosure of pecuniary interests are also to apply to the following persons:
(a)  a member of a committee of a council (including the Audit, Risk and Improvement Committee),
(b)  an adviser to a council.
(3)  A council must adopt a code of conduct (the adopted code) that incorporates the provisions of the model code. The adopted code may include provisions that supplement the model code.
(4)  A council’s adopted code has no effect to the extent that it is inconsistent with the model code as in force for the time being.
(5)  Councillors, members of staff and delegates of a council must comply with the applicable provisions of:
(a)  the council’s adopted code, except to the extent of any inconsistency with the model code as in force for the time being, and
(b)  the model code as in force for the time being, to the extent that:
(i)  the council has not adopted a code of conduct, or
(ii)  the adopted code is inconsistent with the model code, or
(iii)  the model code contains provisions or requirements not included in the adopted code.
(6)  A provision of a council’s adopted code is not inconsistent with the model code merely because the provision makes a requirement of the model code more onerous for persons required to observe the requirement.
(7)  A council must, within 12 months after each ordinary election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with this section.
(8)    (Repealed)
(9)  This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.
440AAA   Content of model code
(1)  A model code of conduct prescribed by the regulations under section 440 may relate to any conduct (whether by way of act or omission) of a person to whom the code applies in carrying out his or her functions that is likely to bring a council or holders of civic office into disrepute.
(2)  In particular, a model code may contain provisions for or with respect to the following conduct:
(a)  conduct that contravenes all or specified provisions of this Act or the regulations in all or specified circumstances,
(b)  conduct that is detrimental to the pursuit of the guiding principles and functions of a council,
(c)  improper or unethical conduct,
(d)  abuse of power and other misconduct,
(e)  action causing, comprising or involving any of the following:
(i)  intimidation, harassment or verbal abuse,
(ii)  discrimination, disadvantage or adverse treatment in relation to employment,
(iii)  prejudice in the provision of a service to the community,
(f)  conduct of a councillor causing, comprising or involving any of the following:
(i)  directing or influencing, or attempting to direct or influence, a member of the staff of the council or a delegate of the council in the exercise of the functions of the member or delegate,
(ii)  an act of disorder committed by the councillor at a meeting of the council or a committee of the council,
(g)  disclosure of pecuniary interests.
(3)  The model code provisions relating to disclosure of pecuniary interests are to make provision for or with respect to the following:
(a)  the manner and form of disclosures of pecuniary interests,
(b)  the pecuniary interests that must, or that are not required to be, disclosed,
(c)  returns listing pecuniary interests, the form of returns and lodging of returns,
(d)  disclosures of pecuniary interests at council or committee meetings,
(e)  presence and participation at council meetings by persons who have relevant pecuniary interests,
(f)  conduct of meetings and other actions if a disclosure of a pecuniary interest is made,
(g)  prohibiting disclosing, or including in a return, false or misleading information relating to pecuniary interests,
(h)  records of disclosures of pecuniary interests.
(4)  Nothing in this section limits the matters that may be included in a model code of conduct.
440AAB   Register and tabling of returns
(1)  The general manager must keep a register of returns disclosing interests that are required to be lodged with the general manager under a code of conduct.
(2)  Returns required to be lodged with the general manager must be tabled at a meeting of the council, being the first meeting held after the last day specified by the code for lodgment, or if the code does not specify a day, as soon as practicable after the return is lodged.
440AA   Administration of code of conduct
(1)  The regulations may prescribe a procedure (the model procedure) for administering the model code.
(2)  The model procedure is to set out the procedures for dealing with alleged contraventions of the model code.
(3)  A council must adopt a procedure (the adopted procedure) that incorporates the provisions of the model procedure. The adopted procedure may include provisions that supplement the model procedure.
(4)  A council’s adopted procedure has no effect to the extent that it is inconsistent with the model procedure as in force for the time being.
(5)  Councillors, members of staff and delegates of a council must comply with the applicable provisions of:
(a)  the council’s adopted procedure, except to the extent of any inconsistency with the model procedure as in force for the time being, and
(b)  the model procedure as in force for the time being, to the extent that:
(i)  the council has not adopted the model procedure, or
(ii)  the adopted procedure is inconsistent with the model procedure, or
(iii)  the model procedure contains provisions or requirements not included in the adopted procedure.
(6)  This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor.
Division 2 Serious corrupt conduct
440A   Definition of “serious corrupt conduct”
In this Division:
serious corrupt conduct means corrupt conduct (within the meaning of the Independent Commission Against Corruption Act 1988) that may constitute a serious indictable offence, being:
(a)  in the case of conduct of the holder of a civic office—conduct in connection with the exercise or purported exercise of the functions of the civic office, or
(b)  in the case of conduct of a member of staff of a council—conduct in connection with exercise or purported exercise of the duties of the member of staff.
440B   Dismissal and disqualification from civic office for serious corrupt conduct
(1)  The Governor may dismiss a person from civic office and disqualify the person from holding civic office for a period not exceeding 5 years if:
(a)  the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the person from office with a view to his or her dismissal for serious corrupt conduct, and
(b)  the person is suspended from the civic office by the Minister under this Division, and
(c)  the Minister advises the Governor that the dismissal of the person is necessary in order to protect the public standing of the council concerned and the proper exercise of its functions.
(1A)  If:
(a)  a recommendation has been made as referred to in subsection (1) (a) about a person, and
(b)  the person has since ceased to hold civic office, and
(c)  the Minister advises the Governor that disqualification of the person from holding civic office is necessary in order to protect the public standing of councils and the proper exercise of their functions,
the Governor may disqualify the person from holding civic office for a period not exceeding 5 years.
(2)  Before advising the Governor on a dismissal or disqualification, the Minister is to give the person a reasonable opportunity to show cause why he or she should not be dismissed or disqualified from civic office.
440C   Temporary suspension from civic office for serious corrupt conduct
(1)  The Minister may, without notice or inquiry, suspend a person from civic office:
(a)  if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the person from office with a view to his or her dismissal for serious corrupt conduct, or
(b)  if criminal proceedings for serious corrupt conduct are instituted against the person, or
(c)  if the person makes an admission of serious corrupt conduct.
(2)  A person, while suspended from civic office under this section:
(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 the person would otherwise be entitled as the holder of the civic office.
(3)  A suspension under this section may be removed by the Minister at any time.
(4)  A suspension under this section is removed in the following circumstances:
(a)  if the person is not dismissed from civic office, or criminal proceedings in connection with the serious corrupt conduct are not instituted, within 6 months after the suspension,
(b)  in the case of a person against whom criminal proceedings are instituted in connection with the serious corrupt conduct—if the proceedings are withdrawn or dismissed.
(4A)  However, if the suspension is based on a recommendation made by the Independent Commission Against Corruption or an admission made by the person and the person commences proceedings relating to the recommendation or admission:
(a)  the suspension remains in effect while those proceedings and any related proceedings for review or appeal are dealt with, and
(b)  subsection (4) (a) applies as if the reference to 6 months after the suspension were a reference to 6 months after those proceedings and any related proceedings for review or appeal are finally dealt with or withdrawn.
(5)  If a suspension is removed, any fee or other remuneration withheld may (if the Minister so directs) be subsequently paid to the person concerned.
440D   Temporary suspension of staff in connection with serious corrupt conduct
(1)  The general manager may suspend a member of staff of a council from duty:
(a)  if the Independent Commission Against Corruption, in a report referred to in section 74C of the Independent Commission Against Corruption Act 1988, recommends that consideration be given to the suspension of the member of staff from duty with a view to the institution of disciplinary or other proceedings against the member of staff for serious corrupt conduct, or
(b)  if criminal proceedings for serious corrupt conduct are instituted against the member of staff, or
(c)  if the member of staff makes an admission of serious corrupt conduct.
(2)  If the general manager so directs, a member of staff, while suspended from duty under this section, is not entitled to any salary or other remuneration to which the person would otherwise be entitled as a member of staff.
(3)  A suspension under this section may be removed by the general manager at any time.
(4)  A suspension under this section is removed in the following circumstances:
(a)  if disciplinary or criminal proceedings in connection with the serious corrupt conduct are not instituted within 6 months after the suspension,
(b)  in the case of a member of staff against whom disciplinary or criminal proceedings are instituted in connection with the serious corrupt conduct—if the proceedings are withdrawn or dismissed.
(4A)  However, if the suspension is based on a recommendation made by the Independent Commission Against Corruption or an admission made by the person and the person commences proceedings relating to the recommendation or admission:
(a)  the suspension remains in effect while those proceedings and any related proceedings for review or appeal are dealt with, and
(b)  subsection (4) (a) applies as if the reference to 6 months after the suspension were a reference to 6 months after those proceedings and any related proceedings for review or appeal are finally dealt with or withdrawn.
(5)  If a suspension is removed, any salary or other remuneration withheld may (if the general manager so directs) be subsequently paid to the member of staff.
(6)  The Minister may exercise the functions of the general manager under this section in connection with:
(a)  conduct of a general manager, or
(b)  conduct of any other member of staff (but only if the Minister is satisfied that the general manager has failed to act under this section without reasonable cause).
(7)  This section does not limit any other power to suspend a member of staff from duty.
440E   Application of Division
This Division applies to serious corrupt conduct, and to criminal proceedings instituted or admissions made in respect of serious corrupt conduct, before or after the commencement of this Division.
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)
Part 2
441–459  (Repealed)
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.
Part 4
487–490  (Repealed)
Part 5 Miscellaneous
490A   Acts of disorder
For the purposes of this Chapter and the code of conduct, a councillor commits an act of disorder if the councillor, at a meeting of the council or a committee of the council, does anything that is prescribed by the regulations as an act of disorder for the purposes of this Chapter and the code of conduct.
490B   Certain regulations not affected
Nothing in this Chapter affects any regulations made, or the power to make regulations, with respect to the conduct of meetings of a council or a committee of a council, and in particular with respect to:
(a)  the keeping of order at any such meetings, or
(b)  censuring a councillor in connection with a breach of a council’s code of meeting practice.
490C   Supreme Court order for recovery of monetary benefits as a result of non-disclosure by councillors (as inserted by the Local Government and Elections Legislation Amendment (Integrity) Act 2016)
(1)  The Departmental Chief Executive may apply to the Supreme Court for an order under this section against a councillor who has been found by the Civil and Administrative Tribunal under this Chapter to have contravened a pecuniary interests duty.
(2)  The Supreme Court may, if satisfied on the balance of probabilities that the councillor obtained a monetary benefit as a result of a decision made by the council relating to a matter in which the councillor had a pecuniary interest and in respect of which the councillor contravened a pecuniary interests duty:
(a)  order the councillor to pay the council an amount that the Court is satisfied represents the amount of the monetary benefit acquired by the councillor, or accrued to the councillor, as a result of the decision, or
(b)  order the councillor to grant the council security over any property of the councillor to secure the payment required by an order under paragraph (a).
(3)  If proceedings are pending in the Civil and Administrative Tribunal that may give rise to a finding in respect of which the Departmental Chief Executive may make application to the Supreme Court for an order under this section, the Supreme Court may, on application by the Departmental Chief Executive, restrain the councillor the subject of the proceedings from disposing or dealing with property of the councillor pending the making and determination of an application for an order under this section.
(4)  In this section:
monetary benefit means any monetary, financial or economic benefit (including an extension of the permitted use of land or the removal of prohibitions or restrictions on the development of land).