Local Government Bill 2018

Division 7—Councillor Conduct Panels and VCAT

The purpose of this Division is to ensure arrangements for dealing with applications alleging misconduct by Councillors. The arrangements allow for consideration of misconduct at different levels of significance and for the possible types of disciplinary action to vary depending on the relevant level. Misconduct matters may be heard by a Councillor Conduct Panel or VCAT and hearings can be conducted with as little formality as possible while being bound by the rules of natural justice.

Clause 187 requires the Minister to establish a panel list from which members of Councillor Conduct Panels must be selected.

To be on the panel list, a person must be an Australian lawyer, admitted for at least 5 years, or have other relevant experience.

Clause 188 provides for the making of an application to convene a Councillor Conduct Panel.

Subclause (1) states that a Councillor Conduct Panel may hear applications alleging misconduct or serious misconduct. Misconduct and serious misconduct are defined in clause 3.

Misconduct relates to failures arising from a Council's internal resolution procedure. It includes a failure to comply with the procedure or with a Council direction following a procedure. It also includes repeated breaches of the Councillor Code of Conduct after an adverse finding by the internal arbiter.

Serious misconduct relates to failures arising from Councillor Conduct Panel hearings as well as specific types of conduct. The specific types of conduct include bullying, disclosure of confidential information, failure to disclose a conflict of interest, prohibited direction of council staff and sexual harassment.

Subclause (2) allows an application alleging misconduct to be made by a Council, a Councillor or a group of Councillors.

Subclause (3) allows an application alleging serious misconduct to be made by a Council, a Councillor, a group of Councillors or the Chief Municipal Inspector.

Subclause (4) states that an application for a Councillor Conduct Panel by a Council, a Councillor, a group of Councillors or the Chief Municipal Inspector must be made within 3 years of the alleged misconduct.

Subclause (5) states that an application alleging a failure to disclose a conflict of interest may only be made by the Chief Municipal Inspector. This ensures the Chief Municipal Inspector has a prior opportunity to consider whether the failure constitutes an offence under clause 168 that should be prosecuted in a Court instead of by a Councillor Conduct Panel.

An application for a Councillor Conduct Panel that relates to conflicts of interest under subclauses (3) and (5) may only be made from the general election in October 2020.

Subclause (6) provides for an application for a Councillor Conduct Panel to be in the manner specified by the Principal Councillor Conduct Registrar.

Subclause (7) specifies matters that must be included in an application for a Councillor Conduct Panel.

Subclause (8) requires an application from a group of Councillors to include the contact details of the Councillor who will represent the group.

Clause 189 subclause (1) requires the Principal Councillor Conduct Registrar to establish a Councillor Conduct Panel if satisfied that—

• 
  the application is not frivolous, vexatious, misconceived or lacking in substance;
  

• 
  the application demonstrates that there is sufficient evidence to support the allegation;
  

• 
  the Council has taken sufficient and appropriate steps to resolve the matter or there are good reasons for not taking such steps.
  

Subclause (2) requires the Principal Councillor Conduct Registrar to reject an application if not satisfied under subclause (1).

Subclause (3) says that the Principal Councillor Conduct Registrar must establish a Councillor Conduct Panel to hear an application from the Chief Municipal Inspector.

Subclause (4) says that the rejection of an application does not prevent a further application being made in respect to the same conduct.

Clause 190 provides for the Principal Councillor Conduct Registrar to establish a Councillor Conduct Panel that consists of—

• 
  an Australian lawyer who is the chairperson; and
  

• 
  another member with relevant experience.
  

Clause 191 describes the steps to be taken by the Principal Councillor Conduct Registrar if the Registrar receives a subsequent application that appears to be related to a previously lodged Panel application.

Clause 192 includes provisions to ensure a person is not charged with an offence for an action that is also subject to an application to a Councillor Conduct Panel. This specifically relates to serious misconduct hearings relating to the release of confidential information, failing to comply with conflict of interest requirements or directing a member of Council staff.

Clause 193 prevents an application for a Councillor Conduct Panel to be made for specified actions for which the Councillor has been charged. This means a charge of releasing confidential information, failing to comply with conflict of interest requirements or directing a member of Council staff.

Clause 194 provides for notice to be given of a Councillor Conduct Panel hearing to the parties and the Council.

Clause 195 entitles a Councillor Conduct Panel to—

• 
  request a person to attend a hearing;
  

• 
  request the provision of information;
  

• 
  direct a Councillor to attend a hearing or provide information.
  

Subclause (2) requires Councillor Conduct Panel members to not release confidential information.

Clause 196 requires the Council to provide all reasonable assistance to a Councillor Conduct Panel.

Clause 197 subclause (1) requires a Councillor Conduct Panel to hold a hearing before it may make a final determination

Subclause (2) lists matters applying to Councillor Conduct Panel hearings. Hearings must be conducted with minimal formality while complying with the Bill and being bound by the rules of natural justice. There is no right to representation unless a Councillor Conduct Panel considers it necessary for a fair hearing.

Subclause (3) requires a Councillor Conduct Panel to give the respondent an opportunity to be heard.

Clause 198 provides for the dissolution of a Councillor Conduct Panel when its actions are complete and any VCAT review is concluded.

Clause 199 requires a Councillor Conduct Panel to notify the Chief Municipal Inspector if a Councillor appears to have committed an offence under the Bill.

Clause 200 empowers the Chief Municipal Inspector to require a Councillor Conduct Panel to suspend or stop consideration of a matter, subject to the Chief Municipal Inspector commencing an investigation within 28 days.

Clause 201 describes the directions that may be made by a Councillor Conduct Panel.

Subclause (2) describes the directions that may be made if a Councillor Conduct Panel makes a finding of misconduct. This includes possible suspension for up to 2 months, without an allowance, or becoming ineligible to be the Mayor or Deputy Mayor for a specified period of time.

Subclause (4) describes the directions that may be made if a Councillor Conduct Panel makes a finding of serious misconduct. This includes possible suspension for up to 6 months, without an allowance.

If a finding of serious misconduct is made, the Councillor is automatically ineligible to be the Mayor or Deputy Mayor for the remainder of the term of office unless the Councillor Conduct Panel directs otherwise.

A Councillor Conduct Panel may also direct a Council to amend its Councillor Code of Conduct to address any deficiencies, which must be done within 3 months.

Clause 202 requires a Councillor Conduct Panel to give a copy of its decision and the reasons for its decision to the Council and the parties involved. The decision must be tabled at the next Council meeting.

The tabling requirements in this clause also apply to a record of a decision of VCAT, after reviewing a panel decision.

Clause 203 specifies that certain information relating to Councillor Conduct Panel's is confidential information.

Clause 204 entitles a person affected by a Councillor Conduct Panel decision to apply to VCAT for a review of the decision. This must be done within 28 days of the Councillor Conduct Panel giving its reasons for the decision.

Subclause (4) provides who the parties to the review hearing are.

Clause 205 provides for the Chief Municipal Inspector to apply to VCAT for a finding of gross misconduct against a Councillor. Gross misconduct is defined in clause 3 to be behaviour that demonstrates that the Councillor is not of good character or is otherwise not a fit and proper person to hold the office of Councillor. This behaviour includes egregious behaviour that constitutes sexual harassment

If VCAT makes a finding of gross misconduct it may disqualify the person from being a Councillor for up to 8 years.

Clause 206 assigns powers to VCAT to order the disqualification of a Councillor for up to 8 years if VCAT makes a finding against the Councillor of gross misconduct.

Clause 207 provides for conduct proceedings in a Councillor Conduct Panel or VCAT to be suspended during the election period for a Council general election. Misconduct and serious misconduct hearings may only resume after the election if the Councillor is re-elected. A gross misconduct matter must resume after the election even if the person is not re-elected Councillor.

Clause 208 provides immunity for Councillor Conduct Panel members for actions or omissions taken in good faith.
Part 8—Ministerial oversight