Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Local Government Legislation Amendment Bill 2005
Local Government Legislation
Amendment Bill 2005
Explanatory Notes
GENERAL OUTLINE
Objectives of the Bill
The objectives of the Bill are to:
· insert in the Local Government Act 1993 (LGA) a framework for
councillor codes of conduct and their enforcement;
· insert in the LGA provisions requiring councils to establish a general
complaints process;
· amend the LGA to allow councillors to salary sacrifice for
superannuation purposes; and
· make miscellaneous amendments to the LGA, the City of Brisbane
Act 1924 (CoBA), and the Local Government (Community
Government Areas) Act 2004 (LGCGAA).
Reasons for the Bill
Councillor codes of conduct
Currently there is no legislative requirement for Queensland local
governments to adopt a code of conduct for their councillors. A number of
reports from State inquiries about the conduct of public officials have
recommended codes of conduct for elected officials at both the State and
local levels. The approach taken in relation to local government has been
to wait until a code was in place for Members of Parliament (MPs). In
September 2001 conduct requirements for MPs were consolidated in the
Code of Ethical Standards, updated in 2003.
The Department of Local Government, Planning, Sport and Recreation
(DLGPSR) reviewed whether legislation should be developed to require
local governments to adopt a code of conduct for councillors and how such
a requirement might best be incorporated into the local government
framework. A Discussion Paper was released in October 2003 and
responses supported the development of a code of conduct framework.
2
Local Government Legislation Amendment Bill 2005
Consistency with elements of the Code of Ethical Standards for MPs was a
key factor in developing the framework for councillors.
A consultation kit comprising a draft Bill and booklet was released for
public comment in January 2005. Submissions in response to this kit gave
continued support for an enforceable framework for councillor codes of
conduct.
General complaints process
The LGA does not currently require local governments to establish a
general complaints process, although DLGPSR and the Ombudsman have,
in recent years, encouraged councils to adopt such a process. The last
review of the Ombudsman's office recommended State agencies and local
governments be required to have a general complaint process. In addition,
the proposed code of conduct framework requires minor breaches be dealt
with using a general complaints process. This necessitated a statutory
requirement for a general complaints process, however this proposal was
not developed at the time the codes of conduct discussion paper was
released for public comment.
The consultation kit for codes of conduct included the draft legislative
proposals for the complaints process.
Salary sacrificing for councillors
The LGA will be amended to allow councillors to salary sacrifice for
superannuation purposes. This is consistent with provisions for
Commonwealth MPs and proposed provisions for Queensland MPs.
Miscellaneous amendments
The LGA will be amended to allow local government employees to opt out
of mandatory superannuation contributions in order to avoid exceeding the
Commonwealth's reasonable benefits limit. The LGCGAA will be
amended to allow Aboriginal councils to operate commercial activities
without complying with the enterprise provisions of the LGA except where
they have a joint venture with the private sector. The Bill also includes
some minor technical amendments.
Administrative Cost to Government
There are no financial implications for the State as a result of establishing a
code. The extension of the roles of the Crime and Misconduct Commission
3
Local Government Legislation Amendment Bill 2005
and Ombudsman in referring breaches of the code, or the Ombudsman
regarding investigations about enforcement of the code by councils, will be
met within existing resources. Any funding requirements for
implementation and administration will be met by local governments and
DLGPSR.
Consistency with Fundamental Legislative Principles
The Bill does not infringe any Fundamental Legislative Principles. In
relation to new sections 250ZH and 250ZI of the LGA, as provided for by
clause 16 of the Bill, consideration has been given to the question of
whether indemnity for panel members and persons giving information to a
conduct review panel might infringe the Fundamental Legislative Principle
that no-one is immune from prosecution. The immunity only applies if the
person acts honestly and without negligence. In addition, new section
250ZH shifts liability to the local government if liability is prevented from
attaching to the conduct review panel member. Therefore, the provisions
are considered reasonable with adequate justification.
Consultation
In relation to codes of conduct and the general complaints process, a
consultation kit comprising a draft Bill and booklet titled Local
Government Act 1993: Draft Legislative Proposals: A Regulatory
Framework for Councillor Codes of Conduct was released for public
comment in January 2005, with 4 March 2005 as the closing date for
submissions. Copies of the consultation kit were forwarded to all State
MPs, councils and councillors, in addition to people who asked for a copy.
Responses were received from 33 councils, 8 individual councillors, the
Local Government Association of Queensland (LGAQ), Local Government
Managers Australia and 11 community organisations and individuals.
Drafts of the salary sacrificing and other miscellaneous amendments were
forwarded to the LGAQ, the Urban Local Government Association,
LGSuper and Brisbane City Council.
Consultations on the draft Bill have also been held with representatives of
the key stakeholders in Government including the Department of the
Premier and Cabinet, Queensland Treasury, Government Superannuation
Office, the Crime and Misconduct Commission (CMC), the Queensland
Ombudsman, the Office of the Public Service Commissioner, the
Department of Justice and Attorney-General, and the Department of
Aboriginal and Torres Strait Islander Policy.
4
Local Government Legislation Amendment Bill 2005
Notes on the Provisions
This section provides explanatory notes on each clause of the Bill. The
index to the Bill contains numbers down the left hand side under the
heading of section. These numbers correlate with the clauses in this paper.
The clauses of a Bill only become sections of an Act when the Bill is
passed by Parliament.
The clauses contain provisions that either amend existing provisions
(sections) of the City of Brisbane Act 1924 (CoBA), the Local Government
Act 1993 (LGA) and the Local Government (Community Government
Areas) Act 2004 (LGCGAA) or insert new sections in these Acts.
Part 1 - Preliminary
Clause 1 Short title
Clause 1 provides the short title, the Local Government Legislation
Amendment Act 2005.
Part 2 - Amendment of City of Brisbane Act
1924
Clause 2 Act amended in pt 2
Clause 2 applies the amendments in part 2 to the CoBA.
Clause 3 Amendment of s 3A (Application of the Local
Government Act)
Clause 3 amends section 3A to include regulatory provisions for councillor
codes of conduct and a general complaints process in the list of LGA
matters that apply to Brisbane City Council. It is intended that the code of
conduct framework and requirement for a general complaints process will
apply to all local governments. This amendment is necessary because,
unless expressly provided for, the provisions of the LGA do not apply to
5
Local Government Legislation Amendment Bill 2005
Brisbane City Council. This is due to the fact that Brisbane City Council
operates under the LGA and the CoBA.
Clause 4 - Amendment of s 39C(Council register)
Clause 4 amends section 39 to clarify that Brisbane City Council is no
longer required to keep its council register in a printed form with this
document to be available to the public on demand for both inspection and
sale purposes. This is consistent with the provision that applies to other
local governments in section 513A of the LGA.
Clause 5 - Amendment of s 116 (Preparation of annual financial
statements)
Clause 5 amends section 116 to clarify that Brisbane City Council's annual
financial statements are to be prepared in accordance with the Australian
Accounting Standards, consistent with provisions under the LGA.
Clause 6 - Amendment of s 119 (Annual report)
Clause 6 amends section 119 of the CoBA to require Brisbane City Council
to include in its annual report information about how it has dealt with
councillor code of conduct breaches. These measures are intended to
inform the community about code breaches by councillors and how the
council has dealt with them. This amendment is necessary because the
annual reporting requirements for Brisbane City Council are set out in the
CoBA. A similar amendment of the LGA for other councils is in clause 19.
Clause 7 - Amendment of s 127 (Financial management
standards)
Clause 7 amends section 127(2)(e) to enable standards for a code of
competitive conduct to also apply to building certification business
activities. This is consistent with provisions for other local governments in
the LGA.
Clause 8 Amendment of sch 2 (Dictionary)
Clause 8 inserts into schedule 2 definitions for code of conduct, conduct
review panel, and general complaints process.
6
Local Government Legislation Amendment Bill 2005
Part 3 - Amendment of Local Government Act
1993
Clause 9 Act amended in pt 3
Clause 9 applies the amendments in part 3 to the LGA.
Clause 10 Amendment of s 9 (Act applies only so far as
expressly provided)
Clause 10 amends section 9 to include regulatory provisions for councillor
codes of conduct and a general complaints process in the list of LGA
provisions that apply to Brisbane City Council. This provision corresponds
with the provision in clause 3.
Clause 11 - Amendment of s 237 (Remuneration for service on
local government and advisory committees)
Clause 11 inserts an additional subsection in section 237. The provision
makes it clear that where a councillor enters into an arrangement with the
local government to salary sacrifice for superannuation, their remuneration
entitlement under this section is to be reduced by the amount the councillor
nominated in the arrangement.
Clause 12 - Amendment of s 238 (Superannuation benefits for
councillors)
Clause 12 inserts an additional subsection in section 238. This provision
makes it clear that where a councillor enters into an arrangement with the
local government to salary sacrifice for superannuation, the limits on a
local government to make superannuation contributions for councillors set
out in subsections (3)(a) and (3)(b) do not apply.
Clause 13 - Insertion of new s 238A
238A - Councillor may make salary sacrifice arrangements
Clause 13 inserts a new section 238A that enables councillors to enter into
an arrangement with a local government to salary sacrifice for
superannuation. Arrangements are limited to 50% of a councillor's
remuneration entitlement. This is consistent with provisions for
Commonwealth MPs and what is proposed for State MPs.
7
Local Government Legislation Amendment Bill 2005
Clause 14 Amendment of s 242 (Requirements of councillors
before acting in office)
Clause 14 amends section 242 of the LGA to require councillors to
formally accept and agree to comply with their code of conduct as part of
making their declaration of office. This is intended to ensure that
councillors are aware of their ethical obligations and responsibilities and
represents a formal and ceremonial commitment to those obligations and
responsibilities.
This provision is not intended to affect in any way a councillor's obligation
to comply with their code of conduct. The code applies to a councillor as a
consequence of its adoption by the council (see clause 16).
Clause 15 Insertion of new s 243A
243A - Compliance with code of conduct
Clause 15 inserts a new section 243A to make it clear that a councillor is
required to comply with the ethical and behavioural obligations set out in
their code of conduct. The provisions also make it clear that the code of
conduct framework is a disciplinary framework in addition to the existing
framework for offence provisions in the LGA.
Clause 16 Insertion of new ch 4, pt 3A
Part 3A - Code of conduct for councillors
Clause 16 inserts a new part 3A (Code of conduct for councillors) in
chapter 4 (Local government councillors). The new part 3A sets out most
of the new provisions for establishing a regulatory framework for
councillor codes of conduct including how to make and adopt a code,
categories of breaches, mechanisms to investigate possible breaches and
penalties for code breaches. The purpose of mandatory councillor codes of
conduct is to document appropriate behavioural standards for local
government councillors and to provide an accountability measure to deal
with breaches of these behavioural standards.
8
Local Government Legislation Amendment Bill 2005
Part 3A - Code of conduct for councillors
Division 1 - Preliminary
New division 1 sets in place the basic requirement that councils have a code
of conduct for councillors and establishes basic parameters such as
timeframes and who are covered. It also provides for a model code which
is intended to help councils in developing their own codes. The model
code will automatically apply as a default for any councils that do not
develop their councillor code of conduct by 1 March 2006.
Section 250A - Application of part to Brisbane City Council
New section 250A applies part 3A to Brisbane City Council. It is
intended that the code of conduct framework will apply to all councils
under the LGA. This amendment is necessary because, unless
expressly provided for, the provisions of the LGA do not apply to
Brisbane City Council. This is due to the fact that Brisbane City
Council operates under the LGA and the CoBA.
Section 250B - Definitions for pt 3A
New section 250B provides a definition, for the code of conduct
framework, of "committee of a local government." For Brisbane City
Council a committee in this context is a committee to which powers
may be delegated under section 39B of the CoBA. For other councils
a committee is defined as being a standing committee or advisory
committee or an advisory committee if all the members are
councillors. New section 250B also defines statutory obligation as
being, for the code of conduct framework, an obligation required of
councillors under the LGA. The only exception to this is the
obligation for councillors (created under new section 243A) to comply
with their code of conduct.
Section 250C - Requirement to adopt code of conduct for
councillors
New section 250C requires each council to adopt by resolution a code
of conduct for its councillors. This provision will make it mandatory
9
Local Government Legislation Amendment Bill 2005
for councils to have a code of conduct in place to guide and regulate
the behavioural standards of its councillors. Councils will have until 1
March 2006 to adopt a code of conduct consistent with the
requirements set out in new division 3.
Section 250D - Model code of conduct for councillors
New section 250D provides for a model code of conduct. The
Minister for Local Government has a discretionary power to make a
model consistent with the content provisions proposed in new division
2. A requirement for gazettal of a model code of conduct ensures that
interested parties, including communities, will be informed that a
model code has been made. Councils may, if they wish, adopt the
model code as their own code of conduct. For those councils that fail
to adopt a code of conduct as required, the model code of conduct will
automatically apply as their code.
Section 250E - Application and duration of code of conduct
New section 250E provides that a councillor code of conduct applies
to all councillors in performing the duties of their office. A code of
conduct continues to apply to councillors until it or another code is
adopted following the review required within six months of each
election.
Division 2 - Content of codes of conduct for
councillors
New division 2 sets out the required elements for councillor codes of
conduct. They are: statutory obligations for councillors, ethics principles
for local governments, criteria for a repeat breach, and information about
making a complaint.
Section 250F - Statutory and additional obligations of
councillors
The statutory obligations for councillors are, as defined in new section
250B, the obligations that the LGA places on councillors. Codes must
also state whether or not for each of these obligations contravention
attracts a penalty.
10
Local Government Legislation Amendment Bill 2005
Councils may also use the ethics principles (see new section 250G) as
a basis for additional ethical and behavioural obligations with which
councillors must comply. These additional obligations must, if
included, be based on 1 or more of the ethics principles and be
consistent with the statutory obligations. Councils will thus have
some discretion in deciding what additional ethical and behavioural
obligations might be appropriate for their councillors.
Section 250G - Ethics principles for local government
councillors
New section 250G(1) makes reference to the ethics principles for local
government councillors that are set out in Schedule 1. New section
250G(2) requires the ethics principles to be included in a local
government's councillor code of conduct.
The principles as set out in Schedule 1 have been adapted from the
Statement of Fundamental Principles in the Code of Ethical Standards
that apply to Members of the Queensland Parliament.
Section 250H - Code must state what a repeat breach is
New section 250H requires councils to decide what constitutes a
repeat breach and to state this in the code. Possible examples include:
· x meeting breaches within a specified time period;
· x minor breaches within a specified time period; and
· x meeting or minor breaches within a specified time period.
Section 250I - Information about making a complaint
Information is to be included that indicates how a person can find out
how to make a complaint about a councillor breaching their code of
conduct. This may be a reference to the relevant part of the council's
website or a contact telephone number.
Division 3 - Procedure for making code of conduct for
councillors
New division 3 sets out the process councils must undertake when
preparing and adopting their code of conduct. The process includes
11
Local Government Legislation Amendment Bill 2005
requirements for giving public notice of a proposed code, receiving and
considering properly made comments, and for making the code available
for inspection and purchase.
Section 250J - Notice of draft code of conduct for
councillors
New section 250J requires a council to give public notice once a new
or amended code of conduct for councillors is drafted.
Section 250K - Requirement to consider comments
New section 250K requires a council to allow six weeks to consider
public comment before resolving to adopt the code.
Section 250L - Code of conduct to be available for
inspection and purchase
New section 250L requires a council to ensure its code of conduct is
available for inspection and purchase.
Division 4 - Enforcement of code of conduct for
councillors
New division 4 sets out measures for enforcing councillor codes of
conduct. The enforcement framework has processes for reviewing code
breach matters (including an independent mechanism for more serious
code breach matters) and penalties for code breaches.
Subdivision 1 - Preliminary
Section 250M - Categories of code of conduct breaches
New subdivision 1 nominates and defines four categories of code
breaches:
· Meeting - code breaches involving misbehaviour at meetings of
the council or committees of the council.
12
Local Government Legislation Amendment Bill 2005
· Minor code breaches that are not otherwise defined. This
category includes misbehaviour that is otherwise (not meeting or
statutory related) inconsistent with the behavioural standards set
out in the code of conduct (e.g. inappropriate behaviour towards
other councillors or council employees).
· Statutory behaviour that contravenes legislative provisions that
either do not include a penalty (e.g. direction of staff) or are not
pursued by the CMC as official misconduct.
· Repeat minor or meeting code breaches that are ongoing.
Councils are required to determine the criteria for determining a
repeat breach.
Categorising breaches on this basis recognises the range of councillor
misconduct that may result in a code of conduct breach and allows an
appropriate response depending on the magnitude and/or type of code
breach.
Section 250N - References in div 4 to code of conduct
breaches
New section 250N provides that, in new division 4, a reference to a
code breach may also mean a reference to an alleged code breach.
Subdivision 2 - Meeting breaches
New subdivision 2 outlines the process for dealing with meeting
breaches including how a complaint about a meeting breach can be
made and when and how a complaint is to be dealt with by a local
government. Meeting breaches involve the misbehaviour of a
councillor during meetings of the council or committees of the
council.
Section 250O - Making a complaint about a meeting breach
New section 250O provides that a complaint of a meeting breach must
be made by a councillor present at the council or committee meeting.
13
Local Government Legislation Amendment Bill 2005
Section 250P - When local government must deal with the
complaint
New section 250P requires that meeting breach matters that occur at
council meetings be dealt with at the meeting (unless a quorum is not
present). Meeting breaches that occur during committee meetings
will be referred to the council for consideration at the next council
meeting after the matter is referred to it.
Section 250Q - How local government must deal with
complaint
New section 250Q requires that the council, when dealing with the
complaint, comply with the principles of natural justice. This would
include, for example, allowing the relevant councillor a right of reply
before the council makes its decision. (Note: this is given as an
example only and is not intended to limit a council's application of the
principles of natural justice).
Possible decisions by councils about meeting breach complaints
include: that the complaint is frivolous and vexatious, that the relevant
councillor did/did not commit a meeting breach, and that a penalty be
imposed on the relevant councillor if they were found to have
committed a breach.
A meeting breach by a councillor may constitute a repeat breach.
Whether or not this occurs for a particular meeting breach will depend
on the criteria for a repeat breach as determined by a council in its
code (refer new section 250H). The process for dealing with a repeat
breach complaint is similar to that in place for car licence demerit
points. If the criteria for a repeat breach are met, the council will be
able to refer the repeat breach matter to a conduct review panel for
consideration, with the possibility of additional penalties for being a
repeat offender.
Subdivision 3 - Minor breaches
New subdivision 3 sets out the process for dealing with minor
breaches including how a complaint about a minor breach can be
made and how a council is to deal with the complaint.
14
Local Government Legislation Amendment Bill 2005
Section 250R - Making a complaint about a minor breach
New section 250R provides that a complaint of a minor breach is
initially dealt with by the council's general complaints process with
the possibility of resolution between the complainant and the relevant
councillor. If the matter is resolved using the council's general
complaints process it is not recorded as a code breach. If the matter is
not resolved using this process it will then pass to the council for
determination.
Section 250S - How local government must deal with
complaints officer's report
New section 250S requires that the council, when dealing with the
complaint, comply with the principles of natural justice. This would
include, for example, allowing the councillor about whom the
complaint has been made the opportunity to consider the report before
the meeting and to give a reply at the meeting prior to the decision
being made by the council. (Note: these are given as examples only
and are not intended to limit a council's application of the principles
of natural justice).
Possible decisions by councils about minor breach complaints
include: that the complaint is frivolous and vexatious, that the relevant
councillor did/did not commit a meeting breach, and that a penalty be
imposed on the relevant councillor if they were found to have
committed a breach.
A minor breach by a councillor may constitute a repeat breach.
Whether or not this occurs for a particular minor breach will depend
on the criteria for a repeat breach as determined by a council in its
code (refer new section 250H). The process for dealing with a repeat
breach complaint is similar to that in place for car licence demerit
points. If the criteria for a repeat breach are met, the council will be
able to refer the repeat breach matter to a conduct review panel for
consideration, with the possibility of additional penalties for being a
repeat offender.
15
Local Government Legislation Amendment Bill 2005
Subdivision 4 Repeat breaches and statutory
breaches
New subdivision 4 sets out the processes for dealing with repeat and
statutory breaches including how a complaint can be made, provision
for review by a local government conduct review panel, and provision
for a decision by the council.
Section 250T - Making a complaint about a statutory
breach
New section 250T introduces a process for a person to make a
complaint about a statutory breach and notes that this does not limit
their ability to make a complaint under existing provisions of the
Crime and Misconduct Act 2001 or the Ombudsman Act 2001.
Section 250U - Referring complaints about statutory
breaches to conduct review panel
New section 250U provides that the chief executive officer must refer
a complaint about a statutory breach to the conduct review panel if (a)
it does not have to be referred to the CMC or (b) the CMC or
Ombudsman recommends it be dealt with by the conduct review
panel. Through this process it is intended that the LGA will provide
an accountability measure for statutory breaches that are not dealt
with as official misconduct matters.
Section 250V - Review of complaints by conduct review
panel
New section 250V requires the conduct review panel to investigate
complaints about statutory and repeat breaches and to give a report to
the council about its investigation. Reports by conduct review panels
may make the following findings about a complaint:
· the complaint is frivolous and vexatious;
· not enough information is available to make a recommendation;
· the councillor has not breached the code of conduct; or
· the councillor has breached the code of conduct and a penalty is
recommended.
16
Local Government Legislation Amendment Bill 2005
New section 250V also makes it clear that a councillor does not have
access to information about a complaint of a code breach until the
panel has concluded their review and the report of the panel has been
given to the local government. This provision is intended to make
clear, in consideration of section 469, that a councillor does not have
access to information about a review of a possible code breach until
the review has been concluded. A corresponding amendment is
proposed for section 469 in clause 17.
Section 250W - Decision by local government about repeat
breach or statutory breach
New section 250W sets out the process a council must use in
responding to reports of a conduct review panel. If the panel's report
includes recommendations, councils are required to decide by
resolution whether the councillor has breached their code of conduct.
No action is required if the panel considers the complaint to be
frivolous or vexatious or if the panel reports there is insufficient
information to make a recommendation. In the event of a code
breach, a council may impose a penalty in accordance with new
section 250X.
Councils are required to apply natural justice principles in
determining code breach matters. This means that in the decision-
making process, councils should, for example, be unbiased in their
consideration of the findings of the panel and not make a
determination without first hearing from the councillor about whom
the complaint has been made. (Note: these are given as examples only
and are not intended to limit a council's application of the principles
of natural justice).
A council that rejects a recommendation from a conduct review panel
must, in making their decision, include a statement of reasons for the
rejection.
Subdivision 5 - Penalties
New subdivision 5 empowers councils to impose penalties on
councillors found to have breached their code of conduct. Penalties
for code breaches enable councillor codes of conduct to be enforced.
17
Local Government Legislation Amendment Bill 2005
Either or both of the penalties can be imposed to sanction councillors
who have breached their code of conduct.
Section 250X - Penalties local government may impose
New section 250X institutes two penalties for code of conduct
breaches: written reprimand and meeting suspension. A council may
decide to use either or both penalties for a code breach. The use of
meeting suspension for code breaches is similar to the effect of MPs
being suspended from Parliament, namely removal of the opportunity
to influence the decision-making process during the period of
suspension.
The application of the meeting suspension penalty varies according to
the type of code breach. The maximum meeting suspension varies
depending on the type of code breach involved. The maximum
meeting suspension is up to two consecutive ordinary council
meetings for a statutory or repeat breach, and up to one ordinary
council meeting for a minor breach. The maximum penalty that can
be imposed for a meeting breach is one ordinary council meeting and
the remainder of the council meeting in which it is decided that the
councillor has breached the code.
Section 250Y - Effect of suspension of councillor for s 252
New section 250Y provides that suspension from council meetings as
a result of a code of conduct breach will not affect the provision in
section 252 of the LGA relating to absences from council meetings.
Subdivision 6 - Conduct review panel
New subdivision 6 establishes the framework for local government
conduct review panels. The purpose of these panels is to provide an
independent review of some code of conduct matters. Conduct review
panels will review statutory and repeat breach matters and make
recommendations to the council for decision and action.
Section 250Z - Pool of members for conduct review panel
New section 250Z makes councils responsible for appointing a pool of
members and for convening, as required, a panel of at least three
18
Local Government Legislation Amendment Bill 2005
members to consider statutory or repeat breaches. Members are
appointed for a term of not longer than four years.
Section 250ZA - Qualifications for appointment as member
of conduct review panel
New section 250ZA provides that current MPs, councillors, council
employees or members of political parties may not serve on a conduct
review panel.
Section 250ZB - Removal from pool of conduct review
panel members
New section 250ZB provides that members of the pool for conduct
review panels may resign by giving notice to the council.
Section 250ZC - Quorum for meetings of conduct review
panel
New section 250ZC provides the quorum requirements for a meeting
of a conduct review panel. It is intended that the panels would
generally operate on a basis similar to that provided in the LGA for
local government advisory committees, including that decisions are to
be made on a majority basis. Outlining basic requirements for the
operation of conduct review panels provides a degree of consistency
for how panels deal with code breach matters across Queensland.
Section 250ZD - Chairperson of conduct review panel
New section 250ZD provides that, if the council does not appoint a
chairperson, the conduct review panel itself may do so.
Section 250ZE - Meetings of conduct review panel
New section 250ZE enables the conduct review panel to meet when
and where it chooses. It also specifies the voting procedure for a
panel making a decision.
Section 250ZF - Payment of fee to persons on conduct
review panel by local government
New section 250ZF provides that panel members are entitled to
receive a fee for reviewing code breach matters. The amount of fees
19
Local Government Legislation Amendment Bill 2005
payable is a matter for each council to consider in establishing its pool
of panel members, giving consideration to local circumstances.
Section 250ZG - Costs of conduct review panel to be met
by local government
New section 250ZG provides that councils are responsible for the
costs associated with the panel.
Section 250ZH - Indemnity for panel members
New section 250ZJ provides that panel members have statutory
protection from civil liability. This is consistent with LGA provisions
for councillors and local government employees. See also the note on
this section under the heading above, "Fundamental Legislative
Principles."
Section 250ZI Indemnity for persons giving information
to a conduct review panel
New section 250ZI provides that persons giving information to panels
about code breach matters have statutory protection from civil
liability. This is consistent with LGA provisions for councillors and
local government employees. See also the note on this section under
the heading above, "Fundamental Legislative Principles."
Subdivision 7 - Miscellaneous
Section 250ZJ - Frivolous or vexatious complaint
New section 250ZJ makes it an offence to make a frivolous or
vexatious complaint about a code of conduct breach by a councillor if
the person making the complaint has been given notice that the same
complaint will not be reviewed because it is considered to be frivolous
or vexatious. It is intended that councils have discretion in
determining whether complaints are frivolous and vexatious. If they
determine complaints to be frivolous and vexatious a notice may be
given to the complainant. Should the complainant submit another
code of conduct complaint that is substantially the same, and court
proceedings are commenced, the courts may impose a monetary
penalty on the complainant.
20
Local Government Legislation Amendment Bill 2005
Clause 17 Amendment of s 469 (inspection of records by
members)
Clause 17 amends section 469 by inserting a reference in subsection (4) to
new section 250W(5). This, together with the provision of new section
250W(5), means that a councillor will not have access to material,
information and proceedings of a conduct review panel if the material is the
subject of a complaint being reviewed by the panel (see subdivision 4 of
clause 16). This provision is necessary to protect the integrity of a review
in process in view of the current provision in section 469 giving councillors
access to a council's records. It is intended that the material be available to
councillors following the completion of the review by the panel. However,
this is not intended to prevent a panel from providing a councillor with
access to information held by it during its investigation.
Clause 18 Insertion of new ch 6, pt 5
Part 5 - General complaints process
Clause 18 inserts a new part 5 in chapter 6 that requires councils to put in
place a general complaints process.
Section 501A - Application to Brisbane City Council
New section 501A ensures that the requirement for a general
complaints process applies to Brisbane City Council as well as other
councils.
Section 501B - Definitions for pt 5
New section 501B defines, for the purpose of part 5, the terms
"affected person" and "complaint."
Section 501C - Meaning of administrative action
New section 501C means that the general complaints process will
include all complaints to a council that the Queensland Ombudsman
has jurisdiction to investigate. Complaints about levels of service or
other matters outside the scope of the Ombudsman are not included.
The process will also serve as the first point of review for councillor
misbehaviour that involves minor code breach matters.
21
Local Government Legislation Amendment Bill 2005
Section 501D - Local government to establish general
complaints process
New section 501D requires that councils adopt by resolution a general
complaints process and that they do so by 1 March 2006.
Section 501E - Requirements for general complaints
process
New section 501E sets out the minimum requirements councils must
address in developing their complaints process.
A key element under new subsections 501E(1)(a) and 501E(2) is the
requirement for an independent process. These provisions require a
council to have a complaints officer to investigate complaints who
must be independent of the subject of the complaint. This means in
effect that the general complaints process will need to provide for both
internal and external reviews. Internal review will occur where the
complaint is about an administrative action by council staff that can be
investigated by a more senior officer, an officer of equivalent level
from another branch, or the council itself. External reviews will occur
where the complaint is about a decision of council or involves the
behaviour of a councillor. These sorts of complaints will need to be
investigated by a person who is outside the organisation.
Other matters that must be included in a council's general complaints
process are:
· preliminary procedures before a complaint is made (including
the possibility of mediation);
· how a person may make a complaint;
· how complaints are sent to the complaints officer and then
investigated;
· giving a person who makes a complaint an opportunity to
provide more information;
· a requirement for the complaints officer to give notice of a
decision and the reasons for the decision to both the council and
the affected person;
· a requirement that, if the matter is not resolved to the affected
person's satisfaction, the complaints officer give that person and
the council a written report with recommendations as
appropriate;
22
Local Government Legislation Amendment Bill 2005
· the timeframe for making a report about an unresolved
complaint; and
· recording the number of complaints made and resolved using this
process.
Apart from these minimum requirements, councils may exercise a
wide discretion in determining the operations of their general
complaints process. It is recognised that some councils have
complaints processes in place that can be used and/or adapted to meet
the proposed requirements.
Section 501F - Refusal to investigate complaint
· Councils are provided with discretion to refuse consideration of a
complaint in certain circumstances. These include:
· the complaint is trivial, frivolous or vexatious;
· the person making the complaint does not have a direct interest in
the administrative action being complained about;
· another appeal or review is currently being undertaken about the
matter and it would be reasonable to await the outcome of that
process before considering or continuing to consider the
complaint; and
· circumstances make an investigation unnecessary or
unjustifiable.
Clause 19 Amendment of s 534 (Content of report about other
issues of public interest)
Clause 19 amends section 534 by inserting new requirements relating to
councillor code of conduct matters for inclusion in a council's annual
report. Code of conduct matters to be reported include:
· the number of code breaches by councillors;
· for each breach, the name of the councillor, a summary of the breach
and any penalty applied;
· the number of complaints about alleged code breaches, other than
frivolous or vexatious complaints, referred to the conduct review
panel;
· the number of recommendations by the conduct review panel that
were adopted or not adopted;
23
Local Government Legislation Amendment Bill 2005
· the number of complaints resolved under the general complaints
process and the number of those complaints that related to an alleged
breach of the councillor code of conduct; and
· the number of complaints being investigated by the Queensland
Ombudsman about how the council enforces its councillor code of
conduct, as notified to the council.
Reporting publicly about code of conduct breaches contributes to the
accountability framework for local government by informing the
community about councillors that have chosen not to meet the agreed
behavioural standards set out in their code of conduct. The requirement for
councils to report on how they have responded to reviews by the conduct
review panel provides a measure that indicates the council's efforts in
upholding the agreed behavioural standards for councillors.
Clause 20 - Amendment of s 1182 (Local governments' liability
for permanent employees)
Clause 20 inserts a new subsection in section 1182 to provide an exception
to requirements in the foregoing subsections that require councils to make
superannuation contributions for employees. The exception to these
requirements is set out in new section 1183A and relates to nomination by
an employee that additional contributions exceed their pension Reasonable
Benefits Limit.
Clause 21 - Insertion of new s 1183A
1183A - Election by permanent employee to cease contributions
Clause 21 inserts a new section 1183A to make clear that a local
government employee may elect to stop their local government employer
making superannuation contributions for them in specific circumstances.
The circumstances specified relate to existing provisions in
Commonwealth legislation Superannuation Guarantee (Administration)
Act 1992 that enable employees to elect to have their employer cease
making superannuation contributions where additional contributions
exceed their pension Reasonable Benefits Limits as defined in the Income
Tax Assessment Act 1936 (Cwlth) section 140ZD.
Clause 22 Insertion of new sch 1
Clause 22 inserts a new Schedule 1 listing the ethics principles for local
government councillors.
24
Local Government Legislation Amendment Bill 2005
Clause 23 Amendment of schedule (Dictionary)
Clause 23 amends the Schedule (Dictionary) by:
inserting definitions for: inserting signposts for the definition of:
· CMC · administrative action
· code of conduct, and · affected person
· conduct review panel. · committee
· complaint
· general complaints process
· meeting breach
· minor breach
· repeat breach
· statutory breach, and
· statutory obligation.
Part 4 - Amendment of Local Government
(Community Government Areas) Act
2004
Clause 24 - Act amended in pt 4
Clause 24 applies the amendments in part 4 to the LGCGAA.
Clause 25 - Insertion of new s 11A
11A - Application of enterprise provisions in Local Government Act
1993
Clause 25 inserts a new section into the LGCGAA to exempt the enterprise
provisions in chapter 6, part 4 of the LGA from applying to community
government enterprises except where undertaken through a joint venture
with the private sector. This will mean that most enterprises run by
community governments will be able to continue operating as at present
without complying with the constraints imposed by chapter 6 part 4 of the
LGA. However, for any enterprises that might be undertaken as a joint
25
Local Government Legislation Amendment Bill 2005
venture with the private sector, the constraints set out in the LGA will
apply.
Clause 26 - Amendment of s 14 (Meaning of reviewable
community government matter)
Clause 26 amends section 14 of the LGCGAA to include the matter of
assigning and reassigning councillors of a community government to
indigenous social groupings as a reviewable community government
matter.
Clause 27 - Amendment of s18 (Commissions must have regard
to prescribed issues)
Clause 27 amends section 18 of the LGCGAA to make it consistent with
corresponding provisions in the LGA that apply to other local
governments.
© State of Queensland 2005