Local Council Governance
Peter Janssen
Experienced legal counsel for business people. Author and social commentator. The opinions expressed on Linkedin are my own and not that of the firms with which I am associated.
Local governments' are accountable to the local community for their decisions, actions and services. Numerous scandals and subsequent investigations, proceedings and reports (largely associated with conflicts of interest, abuse of power for gain, and deceit such as using private email accounts to avoid detection) have shown how an unhealthy corporate governance culture and unsound practices, haughty attitudes/ disdain for corporate governance, insider deals and inappropriate relationships between some Councillors and officials and some developers, once they take root from poor or corrupt leadership (and never called out/ corrected), can derail the efficient operation of a council, ‘defraud’ a community and bring government into disrepute. Here is an article on the legal framework of Local Council Governance. Most councillors and most council employees follow these governance principles. However we all need to be reminded of them and work together to inculcate a compliance culture.
LEGISLATION
The relevant legislation for Council’s is as follows:
Local Government Act 2009 (LGA)and Local Government Regulation 2012
Local Government Electoral Act 2011 and Local Government Electoral Regulation 2012
City of Brisbane Act 2010 and City of Brisbane Regulation 2012
Local Government (Dissolution of Ipswich City Council) Act 2018 (see Explanatory notes)
Crime and Corruption Act 2001 (CC Act)
MAYORAL DIRECTIVES, CODES AND POLICIES
Section 170 (1) and (3) of the LGA states effectively prohibits a mayor from giving directions to any council employee other than the CEO (and if any is given this will amount to misconduct under section 150L c) iv) (see also below) , 150 AQ, 150 AR).
However any Section 170 (2) directive to the CEO by the mayor has to be transparent (CEO must record and make available every such directive from a mayor) and must NOT be inconsistent with a resolution, or a document adopted by resolution of the council.{See Section 170 (2) LGA} eg. such as a Code of Conduct.
Most local government councils will have in place a Code of Conduct for employees and councillors (which term includes 'mayors' see Schedule 4 Definitions of LGA).
The Codes are based on the principles contained in the Local Government Act 2009 and the Public Sector Ethics Act 1994 which sets out the ethics values for public sector agencies, entities and officials.
Pursuant to the LGA all Queensland councillors must comply with the mandatory code of conduct. A councillor is elected to serve and represent the interests of the whole community in their local government area. It is important that residents are confident that their council makes its decisions in the overall public interest and not to benefit councillors, their relatives or a particular group in the community.
For this reason, the local government legislation sets out specific requirements for councillors and local governments about:
· registering councillors' financial and non-financial interests
· dealing with conflicts of interests and material personal interests in council decision making
· how councillors use information obtained in their local government role.
City of Brisbane Act 2010 (CoBA) {Note the CoBA sets out the process to be followed for Complaints to CEO of BCC about the conduct or performance of a Councillor including referral to a Councillor Conduct Review Panel}
Code of Conduct for Councillors (and Mayors) in Queensland pursuant to Section 150D LGA
Section 175 D LGA defines 'Conflict of Interest' as:
(1) A
"conflict of interest" is a conflict that—
(a) is between—
(i) a councillor’s personal interests; and
(ii) the public interest; and
(b) might lead to a decision that is contrary to the public interest.
(2) However, a councillor does not have a conflict of interest in a matter—
(a) merely because of—
(i) an engagement with a community group, sporting club or similar organisation undertaken by the councillor in the councillor’s capacity as a councillor; or
(ii) membership of a political party; or
(iii) membership of a community group, sporting club or similar organisation if the councillor is not an office holder for the group, club or organisation; or
(iv) the councillor’s religious beliefs; or
(v) the councillor having been a student of a particular school or the councillor’s involvement with a school as a parent of a student at the school; or
(b) if the councillor has no greater personal interest in the matter than that of other persons in the local government area.
(3) Also, a councillor who is nominated by the local government to be a member of a board of a corporation or other association does not have a personal interest in matters relating to the corporation or association merely because of the nomination or appointment as a member.
Every Code or policy in the public sector in Queensland including local councils are expected to promulgate, inculcate and enforce standards that uphold those shared values such as the primacy of the public interest, fairness, honesty, respect and use of public funds. For example, see:
· the Gold Coast City Council Code of Conduct for Employees.
· The Brisbane City Council Code of Conduct for Councillors
Note the Code of Conduct calls for the maintenance of an up to date register of conflict of interests. See GCCC Policy for Registering Conflict of Interest and Conflict of Interest Register GCCC
The Policy for GCCC employees’ conflict of interest requires employees to declare an actual, perceived or potential conflict of interest.
The definitions provided to GCCC staff in policy are as follows:
? An actual conflict of interest involves a direct conflict between current duties and responsibilities and existing private interests.
? A perceived or apparent conflict of interest can exist where it could be perceived, or appears, that private interests could improperly influence the performance of an employee’s duties – whether or not this in fact the case.
? A potential conflict of interest arises where private interests could conflict with official duties in the future.
There is a clear requirement in the policy for employees to avoid involvement in any activity that might give the appearance of a conflict of interest with respect to their duties. Employees must declare any conflict through their manager to the CEO.
See generally as an example GCCC Policy on Conflict of Interest Rule 7.2 Duty :
Each councillor, the CEO, and all senior executive employees (Senior executive employee – contracted senior employees of the Council who report (directly or indirectly) to the CEO. As at October 2016 the senior executive employees are the Directors of each Directorate, the Manager Executive Services, the Manager Corporate Assurance, the City Solicitor, and the Digital City Program Manager) are responsible for maintaining a complete and current register of interests by submitting to either the CEO or the Mayor as appropriate a standard form for all the interests stipulated in part 8 of this policy. In addition the primary parties are responsible to submit complete and current registers for related persons when necessary
Part 8 of the Register of Interests Policy [ROIP] reflects Schedule 5 of the LGA Regulation 2012 that requires disclosure of all actual and potential interests ( financial or non-financial interest of a relevant person of which the relevant person is aware and that raises, appears to raise, or could raise, a conflict with the relevant person’s duty under the Act) including directorships and shareholdings beneficial interests in trusts. Self Managed Super entities, JV's, partnerships, landholdings, debts over $10K, bank accounts, gifts over $500, hospitality benefits, sources of income over $500 that may amount to a conflict of interest. The Register of Interests Policy (‘the ROIP’) supports the local government principles in section 4 of the Act. Transparent and effective processes, decision making in the public interest, good governance, and ethical and legal behaviour are particularly relevant to the ROIP.
Note: Chapter 5 LGA relates to Monitoring and Enforcing LGA. Part 3 Investigation of Local Government Records, is about investigations conducted by the department or a local government into the accuracy of the local government’s registers or records that are required to be kept under the LGA : the CEO is NOT subject to direction by mayor See Section 148 I LGA.
Indeed, Part 4 Offences under this Part states in Section 149 that the mayor, CEO or an authorized person must NOT obstruct a local government official (including CEO) in the exercise of a power under LGA or a local law unless that person ( for example, the mayor), has a 'reasonable excuse'. No one can without a reasonable excuse, obstruct a local government worker (i.e. a council employee or agent) in the exercise of a power under Part 2 Division 2 { i.e. Sections 138-148 LGA dealing with the ability of council to perform its function or ensure a person complies with the LGA and other local government legislation including complying with a 'remedial notice' under Section 138AA}.
Section 150L LGA defines 'misconduct' of a councillor (which term includes a mayor) as:
conduct—
(a) adversely affects, directly or indirectly, the honest and impartial performance of the councillor’s functions, or the exercise of the councillor’s powers; or
(b) is or involves—
(i) a breach of the trust placed in the councillor, either knowingly or recklessly; or
(ii) a misuse of information or material acquired in, or in connection with, the performance of the councillor’s functions, whether the misuse is for the benefit of the councillor or for the benefit, or to the detriment, of another person; or
(c) contravenes any of the following—
(i) an order of the local government or the conduct tribunal;
(ii) the acceptable requests guidelines of the local government under section 170A ;
(iii) a policy of the local government about the reimbursement of expenses;
(iv) section 150R (2) , 170 (3) , 171 (3) or 175G .
Note, contravention of policies regarding reimbursement of expenses amounts to misconduct and can be referred to OIA.
(2) Also, the conduct of a councillor is
"misconduct" if the conduct—
(a) is part of a course of conduct leading to the local government deciding to take action under section 150AG to discipline the councillor for inappropriate conduct on 3 occasions within a period of 1 year; or
(b) is of the same type stated in an order of the local government that if the councillor engages in the same type of conduct again, it will be dealt with as misconduct.
(3) For subsection (2) (a) , the conduct that led to the 3 occasions of disciplinary action, taken together, is the misconduct.
(4) It does not matter if the conduct happened outside the State.
Section 175 G of LGA States:
Duty to report another councillor’s material personal interest or conflict of interest at a meeting 175G Duty to report another councillor’s material personal interest or conflict of interest at a meeting
(1) This section applies if—
(a) a matter is to be discussed at a meeting of the local government or any of its committees; and
(b) the matter is not an ordinary business matter; and
(c) a councillor at the meeting reasonably believes, or reasonably suspects, that another councillor at the meeting has a material personal interest, real conflict of interest or perceived conflict of interest in the matter; and
(d) the other councillor has not informed the meeting about the interest under section 175C (2) or 175E (2) .
(2) The councillor who has the belief or suspicion must, as soon as practicable, inform the person who is presiding at the meeting about—
(a) the belief or suspicion; and
(b) the facts and circumstances that form the basis of the belief or suspicion.
Note— Contravention of subsection (2) is misconduct that could result in disciplinary action being taken against a councillor. See sections 150L (1) (c) (iv) , 150AQ and 150AR .
Under the Code of Conduct for Councillors, standard 1 (Carry out RESPONSIBILITIES conscientiously and in the best interests of the Council and the community), states that a Councillor will, at a minimum,
1.4 Report any suspected wrongdoing to the appropriate entity in a timely manner
Note that since November 2018, the definition of 'corrupt conduct'in section 15 of the CC Act was broadened to include even members of the public whose conduct in matters such as tendering and procurement, licensing, resource and asset management, payments of public funds, and fraudulent appointments. impairs public confidence. If councillors become aware of potential or actual conduct of this nature, they ought notify CCC. Depending on CCC response, council/councilors may refer the matter to QPS for criminal investigation or investigate the matter internally according to their policies and procedures. The important thing to do is document everything carefully and seek legal advice.
Consequences of a Councillor failing to comply with the Code of Conduct
Failure to comply with the standards of behaviour in this Code of Conduct, or other conduct prescribed in this Code of Conduct may give rise to a complaint against a Councillor’s conduct and subsequent disciplinary action under the Act.
A complaint about the conduct of a Councillor must be submitted to the Office of the Independent Assessor [OIA] who will assess the complaint and determine the category of the allegation. In order of most to least serious, the categories of complaint are corrupt conduct, misconduct, inappropriate conduct [section 150K LGA] and then unsuitable meeting conduct [ section 150H of the LGA].
If it is a matter of misconduct, the complaint can be referred to the Independent Assessor who upon investigation may then refer the matter to the Councillor Conduct Tribunal [CCT] to be heard and determined. The Councillor Conduct Tribunal has been established under the Local Government (Councillor Complaints) and Other Legislation Amendment Act 2018.
If the allegation one of corrupt conduct it has to be dealt with by the CCC.
Since November 2019, the law [CC Act] requires [ new section 40A], all councils to keep full records of complaints received and investigations held regarding allegations of 'corrupt conduct' if the matter is not referred by Council to CCC including recording any conflict of interest details. See Generally Fact Sheet
REPORTS and INVESTIGATIONS
The last couple of years have seen a lot of activity in the local government sector in Queensland. Several reforms and reports have been prepared following the aftermath of corporate governance failures in the local government sector in Queensland.
Operation Wingate and Report Aug- October 2016 relating to Ipswich City Council. The CCC investigation identified alleged criminal and corrupt activity, including corruption offences, attempting to pervert the course of justice, fraud, breach of bail, extortion and perjury. It also identified significant governance failures and cultural issues. As at 30 June 2019, 16 people, including council employees, two mayors, two Chief Executive Officers (CEOs) and one Chief Operating Officer, have been charged with 91 criminal offences, including official corruption. On 14 August 2018 the CCC tabled a report entitled Culture and corruption risks in local government: Lessons from an investigation into Ipswich City Council (Operation Windage). On 21 August the Ipswich City Council was sacked by the State Government and an administrator was appointed.
Operation Belcarra Report by Crime and Corruption Commission 4 October 2017. This is a blueprint for addressing corruption risk in local government and how it can be avoided by good corporate governance.
Belcarra stage 1 reforms including prohibition of donations from property developers and
new regime for dealing with conflicts of interest.
Queensland Audit Office report 28 June 2018
Councillor complaints framework implemented 3 December 2018 including creation of OIA
Belcarra stage 2 reforms 30 October 2019
Operation Yabber Report 24 January 2020 into Gold Coast City Council tabled to the Qld parliament pursuant to Crime and Corruption Act 2001.
The CCC has stated (see for example page 11 of the January 2020 Yabber Report) that from their point of view, councillor disciplinary breaches in that case did not fall within the definition of corrupt conduct under the CC Act and “corrupt conduct” by elected representatives, such as local government councillors, is limited to circumstances where the alleged conduct would, if proved, amount to a criminal offence. [ The term “criminal offence” includes simple offences such as breaches of the offence provisions of the Local Government Act 2009.]
However, this may not be quite accurate in that section 15 1) c) ii) says that it can also be "corrupt conduct" if it were misconduct so serious that it amounted to effectively a ‘sackable offence’ and involve the other elements of Section 15.
The Yabber Investigation commenced in August 2018 investigate allegations of corrupt conduct relating to senior employees and councillors at the GCCC before the 2019 amendments The scope of the 2018 operation was wide and considered numerous allegations from multiple complaints.
Allegations examined during Operation Yabber broadly included:
? Failing to declare conflicts of interest across various issues involving numerous councillors and staff
? Voting on proposals when gifts and benefits were received from proposal applicants
? Voting on proposals while having a material interest in the outcome
? Acting in conflict with council policies and procedures
? Providing misleading information to council for self-benefit
? Misusing council funds
? Allegations relating to decisions involving Black Swan Lake and the Waterglow developments.
This report said there was no suggestion that the GCCC had the same issues as Ipswich City Council but did say there were concerns about failures to properly declare and mange conflicts of interest (the doorway to potential corruption for some) and possible inappropriate interaction of Mayor’s Chief of Staff and other council officers and how such failures degrade confidence in the integrity of Council governance (and one may add, in government generally with populists all too ready to say people have to ‘drain the swamp’).
Some conduct of the Mayor nevertheless has been referred to the OIA for further review as possible misconduct {see Section 150L LGA}. (Page 22 of the Report).
The Chief of Staff’s conduct has been referred to the CEO of the GCCC for appropriate disciplinary action. Note: According to the findings of the CCC (at page 14 of their report) , the Chief of Staff is a 'senior executive employee' within the meaning of the GCCC ROIP as he reports to (or through to) the CEO, not the Mayor.
The CEO and not the Mayor is responsible for his performance and conduct. Accordingly the Chief of Staff is bound by all GCCC policies procedures the Code of Conduct and his contractual duties (inc 3.1 g).
The CEO has the responsibility under the LGA to discipline the Chief of Staff (See Section 197 LGA). LG Regulations Part 3 Div 1 relate to Disciplinary action against local government employees. Regulation 279 states:
The chief executive officer may take disciplinary action
against a local government employee if the chief executive
officer is satisfied the employee has—
(a) failed to perform their responsibilities under the Act; or
(b) failed to perform a responsibility under the Act in
accordance with the local government principles; or
(c) taken action under the Act in a way that is not consistent
with the local government principles.
Disciplinary action includes suspension, dismissal, demotion or written reprimand (See Reg 280-282).
No criminal allegations have been alleged.
One of the provisions that are contained in the Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Bill 2019 that may become law in 2020 is a proposed Section 170AA which says that the Minister must make a councillor advisor code of conduct that sets out standards of behaviour for councillor advisors in performing their functions for a local government or the council under this Act or the City of Brisbane Act 2010
REFORM
There has been significant legislative reform.
Local Government Legislation (Implementing Stage 2 of Belcarra) Amendment Regulation 2019
Local Government Legislation Amendment Regulation 2019
Local Government Legislation (Implementing Stage 2 of Belcarra) Amendment Regulation 2019
Read about the stage 2 reforms or listen to the podcast
Local Government Legislation (Implementing Stage 2 of Belcarra) Amendment Regulation 2019
Local Government Legislation Amendment Regulation 2019
Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Bill 2019 introduced to Parliament on 28 November 2019.
This new law will bring in
· changes to register of interest requirements
· new and clarified conflict of interest requirements
· new requirements for political advisors.
Read the information paper (PDF, 262KB) with a summary of the proposed Bill.
The Bill (the Bill) introduced into the Queensland parliament on 28 November 2019; particularly Chapter 5 Amendments relating to dishonest conduct of Councillors and other local government matters Part 1 and Part 2.
It is not without its controversy, especially as it relates to Ministerial conduct and penalties. See article by Stuart Layt in the Brisbane Times.
KEEPING THE POLITICIANS PROFESSIONAL (free from conflict of interest temptations) HONEST ACCOUNTABLE
Queensland rate payers have several Public sector integrity agencies that investigate corruption and breach of standards and which provide resources in prevention and education (of councillors), including:
· the Crime and Corruption Commission ( CCC ),
· the Queensland Integrity Commissioner (QIC),
· the Queensland Ombudsman
· the Queensland Audit Office ,
· the Councillor Conduct Tribunal (QCT) established under the auspices of Local Government (Councillor Complaints) and Other Legislation Amendment Act 2018 (LGCC Act) , and
· The Office of the Independent Assessor (OIA). The OIA latest institution to be formed to fight local government corruption and to educate councillors about ethical standards such as avoiding conflicts of interest is OIA will start taking complaints against Councillors after the March 2020 local government elections.
By virtue of sections 21-25 of the CC Act, the CCC has the responsibility to prevent major crime and corruption and to investigate matters that may involve corrupt conduct by anyone who holds an appointment in a unit of public administration in Queensland.
A person holds an appointment in a unit of public administration if they hold any office, place or position in that unit, whether the appointment is by way of election or selection. This includes local government councillors and mayors.
Section 15 of the CC Act, defines “Corrupt Conduct “
“(1) Corrupt conduct means conduct of a person, regardless of whether the person holds or held an appointment, that—
(a) adversely affects, or could adversely affect, directly or indirectly, the performance of functions or the exercise of powers of—
(i) a unit of public administration; or
(ii)a person holding an appointment; and
(b) results, or could result, directly or indirectly, in the performance of functions or the exercise of powers mentioned in paragraph (a) in a way that—
(i) is not honest or is not impartial; or
(ii) involves a breach of the trust placed in a person holding an appointment, either knowingly or recklessly; or
(iii) involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and
(c) would, if proved, be—
(i) a criminal offence; or
(ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.
(2) Corrupt conduct also means conduct of a person, regardless of whether the person holds or held an appointment, that—
(a) impairs, or could impair, public confidence in public administration; and
(b) involves, or could involve, any of the following—
(i) collusive tendering;
(ii) fraud relating to an application for a licence, permit or other authority under an Act with a purpose or object of any of the following (however described)—
(A) protecting health or safety of persons;
(B) protecting the environment;
(C) protecting or managing the use of the State’s natural, cultural, mining or energy resources;
(iii) dishonestly obtaining, or helping someone to dishonestly obtain, a benefit from the payment or application of public funds or the disposition of State assets;
(iv) evading a State tax, levy or duty or otherwise fraudulently causing a loss of State revenue; or
(v) fraudulently obtaining or retaining an appointment; and
(c) would, if proved, be—
(i) a criminal offence; or
(ii) a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.”
Other sections of the CC Act, broaden the scope of “Corrupt Conduct “ to include matters committed outside Queensland matters that take place after a person leaves office and even includes steps to corrupt outcomes even if the plot never comes to fruition.
For a discussion of what was the old definition and how and why it was amended in November 2018, see Fact Sheet on Section 15
“16 Conduct happening over time, or at any time, may be corrupt conduct
(1) Conduct may be corrupt conduct even though—
(a) it happened before the relevant commencement; or
(b) some or all of the effects or elements necessary to constitute corrupt conduct happened before the relevant commencement; or
(c) a person involved in the conduct is no longer the holder of an appointment.
(2) Conduct engaged in by, or in relation to, a person at a time when the person is not the holder of an appointment may be corrupt conduct, if the person becomes the holder of an appointment.
(3) In this section—
relevant commencement means—
(a) generally—the commencement of this Act; and
(b) for corrupt conduct under section 15(2)—the commencement of that subsection.
17 Conduct outside Queensland may be corrupt conduct
Conduct may be corrupt conduct regardless of—
(a)where the conduct happens; or
(b)whether the law relevant to the conduct is a law of Queensland or of another jurisdiction.
18 Conspiracy or attempt to engage in conduct may be corrupt conductA conspiracy or an attempt to engage in conduct is not excluded from being corrupt conduct if, had the conspiracy or attempt been brought to fruition by the taking of a further step, the further step could constitute or involve—
(a) an offence; or
(b) grounds for terminating a person’s services in a unit of public administration, if the person is or were the holder of an appointment in the unit.
19 Corrupt conduct not affected by time limitations
Conduct does not stop being corrupt conduct only because a proceeding or an action for an offence to which the conduct is relevant can no longer be brought or continued or that action for termination of services because of the conduct can no longer be taken.”
Note after the definition in section 15 CC Act was amended i March 2019 [ New section 15 (2), private citizens as well as public officials can be guilty of 'corrupt conduct' in certain instances.
For more information about CCC and Local government councils see CCC publications including:
"Corruption in Focus " updated as at January 2020
" Corruption in the Queensland public sector - it's not just about public servants "
"Complains Management Recognising opportunities for improvement Guidelines for local governments " See Section 268 (1) LGA and Section 306 LGR that requires local council's to establish a complaint's management process. Note Appendix B Code of Conduct of Complaints Management under heading
" Integrity ": Council officers are obliged to maintain the integrity and good public image of the Council. Complaints may relate to perceived or actual conflicts of interest. Managing conflicts of interest and reminding officers to make decisions in favour of the overall public interest may deter complaints of this nature.
See for example City of Gold Coast's: "Complaints (Administrative Actions) Policy and Procedures " [ C(AA) PP] effective from Oct 2018.
C(AA) PP 1.3.5. Misconduct, official misconduct, criminal matters
Allegations of official misconduct are referred to the Corporate Assurance Branch for investigation and recommendation to the CEO. Allegations of misconduct or a criminal matter are referred to the Manager Corporate Assurance Branch
C(AA) PP 1.3.6. Complaints under the Public Interest Disclosure Act 2010
Public interest disclosure, i.e. whistle blower, complaints are referred to the Corporate Assurance Branch.
C(AA) PP 1.4. Complaints about a Councillor/Mayor
Complaints about Councillors, including the Mayor, come within Chapter 6 Part 2 Division 6 of the Act and are referred to Office of CEO Branch, Office of the CEO and are dealt with in accordance with those provisions.
See General Complaints Form for GCCC
As stated above since November 2019, the law [CC Act] requires [ new section 40A CC Act], all councils to keep full records of complaints received and investigations held regarding allegations of 'corrupt conduct' if the matter is not referred by Council to CCC including recording any conflict of interest details. See Generally Fact Sheet
2.2.7. Review options
If the complaint is not upheld, the complainant is advised of other review options. Following a Preliminary Review: The appropriate review option is a Final Review.
Following a Final Review: The review options may be one or more of the following (subject to jurisdiction):
? Queensland Ombudsman
? Office of Information Commissioner (OIC) for privacy complaints
? Queensland Civil and Administrative Tribunal (QCAT) ? Energy and Water Ombudsman Queensland (EWOQ)
? Courts
The C (AA)PP does not interfere with a person’s right to complain directly to an external complaints review avenue, e.g. a court of law, QCAT, EWOQ, or the CCC if the matter relates to official misconduct. Where a complaint is referred directly to the Queensland Ombudsman, the Ombudsman may refer it back to Council to investigate. Unless otherwise determined by the Ombudsman or Manager Office of CEO Branch, the complaint will then be investigated in accordance with the Preliminary Review and Final Review processes.
4.1. Councillors’ role in the complaints management process
a. A Councillor, acting in their official capacity as a Councillor, who receives a complaint from an affected person about an administrative action of Council, at a minimum, is obliged to report the complaint to the relevant area of Council administration for recording and, where appropriate, investigation. Brief notes should include the main aspects of the complaint. The name and contact details of the complainant, should be included, subject to e, below.
d. A Councillor referred complaint will be dealt with in accordance with the C(AA)PP as if it were a complaint made directly to Council administration.
e. A Councillor who withholds the identity of a complainant from Council administration should obtain the agreement of the complainant to do so and after informing the complainant that they can lodge their complaint anonymously and directly with Council administration, if they prefer.
h. If a Councillor does not disclose the identity of the complainant to Council administration, the complaint will be processed as an anonymous complaint.
The role of the Integrity Commissioner involves:
· Providing confidential advice on ethics and integrity matters to Ministers, members of the Legislative Assembly, ministerial staff, senior public servants, and other persons or classes of persons nominated by a Minister.
· Regulating lobbyist activity and maintaining the lobbyists register.
· Raising public awareness of ethics and integrity matters.
· Standard setting on ethics and integrity matters at the request of the Premier.
OAI (Office of the Independent Assessor)
"The OIA was formed to hold councillors who would commit misconduct to account, for the benefit of the community and the benefit of all councillors who are trying to do the right thing.
It investigates complaints about all Queensland councillors, except those from Brisbane City Council.
The OIA does not investigate council services such as rates, parking fines, bin collection or noise complaints.
It only receives complaints about the conduct of individual councilors that is either inappropriate conduct or misconduct."
On the OAI website you will read that Councillor conduct is divided into four categories:
1. Unsuitable meeting conduct
Unsuitable meeting conduct is handled by a council in the council meeting. It is unsuitable meeting conduct when a councillor, in a council meeting, contravenes the code of conduct or a council policy.
2. Inappropriate conduct
Inappropriate conduct must be referred by councils to the Independent Assessor. It is inappropriate conduct when a councillor:
· contravenes a behavioural standard (a breach of the councillor code of conduct), or
· a policy, procedure or resolution of council,
· an order of the chairperson of a council meeting to leave and stay away, or when a councillor received orders for unsuitable meeting conduct three times in one year.
3. Misconduct
Misconduct is handled by the Independent Assessor, with the complaint heard by the Councillor Conduct Tribunal.
It is misconduct when a councillor is dishonest or biased in the exercise of their powers.
Behaviours categorised as misconduct include:
· breaches of trust
· misuse of information or material acquired in or in connection with the performance of the councillor’s function for the benefit or detriment of the councillor or another person
· giving directions to local government employees
· releasing information confidential to council
· failing to report suspected conflicts of interest of other councillors
· failing to comply with an order of the council or the Councillor Conduct Tribunal
· failing to comply with acceptable request guidelines of the council
· failing to comply with a council policy about the reimbursement of expenses
· being disciplined for inappropriate conduct three times in one year.
4.Corrupt conduct
Corrupt conduct is handled by the Crime and Corruption Commission. Corrupt conduct is behaviour that:
· adversely affects or could adversely affect the performance of functions or the exercise of powers of the councillor; and
· is not honest or impartial; or
· results or could result directly or indirectly in the performance of functions or the exercise of a councillor’s powers in a way that is
o not honest or impartial; or
o a breach of trust placed in the councillor; or
o a misuse of information acquired by the councillor; and
· is engaged in inappropriate behaviour to the benefit or detriment of a person; and
· if proven, would be a criminal offence.
Resources for Local government councillors:
· Councillor Aid to Duty to report
· Aid Conflict of Interest Meetings
· Aid for Councillors material personal interest
· Personal interests official responsibilities guide councillors
VIDEO
See former video of Carl Wulff the former Ipswich CEO (2006-2013) who from prison laments on his failure to take corporate governance more seriously including how corruption begins with inappropriate offers (bribes) from contractors and developers. He basically says once you accept the first sugar coated bribe from being too close to some unscrupulous developers advances, they’ll leverage that over you for the rest of your life. Just say no and report it…it ruins your life and the culture of the organization rots from corruption and a failure of corporate governance.
QCT (Qld Councillor Conduct Tribunal)
It is main the role of QCT is to hear allegations of misconduct from the investigative body the OIA and to do justice by making disciplinary orders.
Section 150 AQ (1) allows the QCT to conduct a hearing to decide whether there has been misconduct or inappropriate conduct. Section 150AQ (2) LGA states that:
In deciding what action to take, the conduct tribunal may consider—
(a) any previous misconduct of the councillor; and
(b) if the application relates to inappropriate conduct—any previous inappropriate conduct of the councillor; and
(c) any allegation made in the hearing that—
(i) was admitted, or not challenged; and
(ii) the conduct tribunal is reasonably satisfied is true.
The Tribunal may decide (according to Section 150AR LGA):
1. that no action be taken against the councillor;
2. to make one or more of the following orders or recommendations that the councillor—
- make a public admission that the councillor has engaged in misconduct
- attend training or counselling to address the councillor’s conduct, including at the expense of the councillor
- pay to the local government an amount that is not more than the monetary value of 50 penalty units
- reimburse the local government for all or some of the costs arising from the councillor’s misconduct
- is not to act as the deputy mayor or the chairperson of a committee of the local government for the remainder of the councillor’s term
- is not to attend a stated number of local government meetings, up to a maximum of 3 meetings
- is removed, or must resign, from a position representing the local government, other than the office of councillor; or
- an order reprimanding the councillor for the conduct
Whatever decision QCT make has to be made known to the:
· assessor,
· the councillor involved (ho is entitled to Appeal to QCAT under the QCAT Act for a review of the disciplinary decision),
· the local government,
· where possible, the complainant.
The QCT can also conduct investigations and make recommendations.
The QCT is a quasi-judicial body made up of 6 members and a president appointed by the Governor in Council. It is independent of, but administratively supported by, the Qld State government’s Department of Local Government Racing and Multicultural Affairs.
The Integrity Committee is an informal committee that meets four times a year chaired by QIC (Currently Dr Nikola Stepanov . Members include the Heads of other integrity agencies:
The Chairperson of the Crime and Corruption Commission.
The Queensland Ombudsman.
The Commissioner of the Public Service Commission.
The Information Commissioner.
The Auditor-General.
The Electoral Commissioner.
The Queensland Racing Integrity Commissioner.
The Independent Assessor.
See Meeting Notes of QIC Committee
What happens if investigators contact you?
Lastly, if a citizen gets caught up with CCC investigations ( or similar bodies interstate or federally such as Australian Crime Commission), they should seek independent legal advice as soon as possible. There are serious penalties for not co-operating with these authorities including imprisonment.Witness protection may also be available even if you are helping authorities and not just being a witness.
Good summation Peter and very helpful as a reference guide for new Councillors
Capacity Building Coach
4 年A great reference and research resource.