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PARLIAMENT OF VICTORIA
Local Government Amendment (Councillor
Conduct and Other Matters) Bill 2008
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
3 Principal Act 3
PART 2--COUNCILLOR ALLOWANCES 4
4 New sections 73A and 73B inserted 4
73A Review of allowance categories 4
73B Review of allowance limits and ranges 5
5 Councillor and Mayoral Allowances 6
6 General provisions relating to allowances 7
7 Repeal of sections 74B(3) and 74B(4) 8
8 Advisory panel 8
9 Section 75 substituted 9
75 Reimbursement of expenses of Councillors 9
75A Reimbursement of expenses of members of council
committees 9
75B Councillor reimbursement policy 9
75C Resources and facilities for Councillors 10
PART 3--COUNCILLOR CONDUCT AMENDMENTS 11
10 Definitions 11
11 Disqualifications 11
12 Section 30 substituted 13
30 Relief from disqualification 13
13 Term of office 13
14 Section 76B substituted 13
76B Primary principle of Councillor conduct 13
76BA General Councillor conduct principles 14
15 Code of Conduct 15
16 New sections 76D and 76E inserted 16
76D Misuse of position 16
76E Improper direction and improper influence 18
561191B.I-9/9/2008 i BILL LA INTRODUCTION 9/9/2008
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17 Confidential information 18
18 New Division 1B inserted in Part 4 19
Division 1B--Councillor Conduct Panels 19
81A Definitions 19
81B Application to Councillor Conduct Panel 21
81C Dismissal of application 22
81D Referral to VCAT 22
81E Application on grounds of gross misconduct 23
81F Parties to a VCAT proceeding 24
81G Notice of a Councillor Conduct Panel 24
81H Procedures 24
81I Conduct of a Councillor Conduct Panel 25
81J Determinations by a Councillor Conduct Panel 26
81K Findings and orders by VCAT 28
81L Referral by VCAT to Councillor Conduct Panel 29
81M Notice of determinations and tabling of decisions 30
81N Suspension of matters during election period 31
81O Breach of Act by Councillor 32
81P Investigation by inspector of municipal administration 33
81Q Review by VCAT 33
81R Time period for making application to VCAT 34
81S Councillor Conduct Panels 34
19 New Schedule 5 inserted 34
SCHEDULE 5--Provisions with respect to establishing
Councillor Conduct Panels 34
1 Definitions 34
2 Councillor Conduct Panels 35
3 Establishment of CCP Lists by MAV 35
4 Notifying Councils of intended appointees 37
5 Establishing a Councillor Conduct Panel--duties
of CCP Registrar 38
6 Related applications 39
7 Other duties of CCP Registrar 39
8 Duties of the Chief Executive Officer in relation to
Councillor Conduct Panels 40
9 Councillor Conduct Panel formation 41
10 Conflicts of interest, ineligibility or unavailability
of Councillor Conduct Panel members 41
11 Establishment of Councillor Conduct Panel
impossible based on existing lists 42
12 Dissolution of Councillor Conduct Panel 43
13 Immunity 43
561191B.I-9/9/2008 ii BILL LA INTRODUCTION 9/9/2008
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PART 4--CONFLICT OF INTEREST 45
20 New section 76AA inserted 45
76AA Definitions 45
21 Sections 77A, 77B and 78 substituted 46
77A Direct and indirect interests 46
77B Direct interest 47
78 Indirect interest by close association 48
78A Indirect interest that is an indirect financial interest 50
78B Indirect interest because of conflicting duties 51
78C Indirect interest because of receipt of an applicable
gift 52
78D Indirect interest as a consequence of becoming an
interested party 53
22 Section 79 substituted 54
79 Disclosure of conflict of interest 54
79A Conflict of interest defence 57
79B Conflicting personal interest 57
79C Certain situations where Councillor taken to not
have a conflict of interest 58
79D Person may make submission despite conflict of
interest 60
23 Exemption by Minister 60
24 New sections 80A, 80B and 80C inserted 61
80A Requirements to be observed by an assembly of
Councillors 61
80B Members of Council staff to disclose conflicts of
interest in respect of delegated functions 63
80C Persons to disclose interests to Council when
providing advice 64
25 Register of interests 64
PART 5--MISCELLANEOUS AMENDMENTS 68
26 Amendment of section 28--Qualification to be a Councillor 68
27 Amendment of section 46--Powers of a municipal electoral
tribunal 69
28 Amendment of section 52--Unlawful nomination 69
29 Amendment of section 63--Oath of office 69
30 New sections 66A and 66B inserted--Suspension and leave of
absences of Councillors 70
66A Suspension of Councillor 70
66B Leave of absence of Councillor 70
31 Amendment of section 69A--Multiple extraordinary
vacancies 71
32 Amendment of section 71--Election of Mayor 71
33 Amendment of section 72--Term of office 71
561191B.I-9/9/2008 iii BILL LA INTRODUCTION 9/9/2008
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34 New section 82A inserted--Council must maintain an
internet website 72
82A Council must maintain an Internet website 72
35 Amendment of section 84--Special meetings 73
36 Amendment of section 85--Call of the Council 73
37 Amendment of section 86--Special committees of the
Council 73
38 Sections 87 and 88 substituted--Special committee meetings 74
87 Special committee meetings 74
39 Amendment of section 89--Meetings to be open to the
public 75
40 Amendment of section 90--Voting 75
41 Amendment of section 91--Conduct of meetings 76
42 Amendment of section 93A--Conduct of Council during
election period 76
43 Amendment of section 94--The Chief Executive Officer 76
44 Amendment of section 94A--Functions of the Chief
Executive Officer 77
45 Amendment of section 95--Conduct principles 77
46 New section 95AA inserted--Codes of conduct for Council
staff 77
95AA Code of conduct for Council staff 77
47 Amendment of section 95A--Employment of senior officers
to be regulated by contract 77
48 Amendment of section 98--Delegation 77
49 Amendment of section 125--Council Plan 78
50 Amendment of section 130--Adoption of budget or revised
budget 78
51 Amendment of section 131--Annual report 78
52 Amendment of section 132--Performance statement 78
53 Amendment of section 138--Quarterly statements 79
54 Amendment of section 139--Audit committee 79
55 Amendment of section 154--What land is rateable? 79
56 Amendment of section 163--Special rate and special charge 79
57 Amendment of section 163B--Objection process relating to
certain special rates and charges 80
58 Amendment of section 166-- Variation of special rate or
special charge 80
59 Amendment of section 167--Payment of rates and charges 80
60 Amendment of section 169--Rebates and concessions 81
61 Amendment of section 183--Review of differential rating
by Victorian Civil and Administrative Tribunal 82
62 Amendment of section 185--Application to Victorian Civil
and Administrative Tribunal 82
63 Amendment of section 185AA--Application for declaration 82
64 Amendment of section 185AB--Matters Tribunal must take
into account 83
561191B.I-9/9/2008 iv BILL LA INTRODUCTION 9/9/2008
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65 Amendment of section 185B--Minister may give directions
concerning rates and charges 83
66 Amendment of section 186--Restriction on power to enter into
contracts 83
67 New section 186A inserted--Procurement policy 83
186A Procurement policy 83
68 Amendment of section 189--Restriction on power to sell
land 85
69 Amendment of section 193--Entrepreneurial powers 85
70 Amendment of section 196--Regional libraries 85
71 Repeal of section 197E--Offence to fail to comply with
provisions 85
72 Amendment of section 213--Access of Commissioner to
places and documents 85
73 Amendment of section 219--Suspension of Councillors 86
74 Section 222 substituted--Right of inspection 86
222 Right of inspection 86
75 Amendment of section 223--Right to make submission 87
76 Amendment of section 223A--Appointment of inspectors of
municipal administration 89
77 Amendment of section 223B--Powers of inspectors of
municipal administration 89
78 Amendment of section 228--Indemnity provision 89
79 Amendment of section 232--Proceedings 89
80 Amendment of section 236--Power of delegation 89
81 Amendment of section 237--Council records and information 89
82 Amendment of section 240A--Imposition of surcharge 90
83 Repeal of section 242A--Supreme Court--limitation of
jurisdiction 90
84 Amendment of Schedule 2 90
PART 6--AMENDMENTS TO THE CITY OF MELBOURNE ACT
2001 92
85 Application of certain provisions of the Local Government
Act 1989 92
86 Deputy Lord Mayor 92
87 Term of office of Lord Mayor and Deputy Lord Mayor 92
88 Filling of Vacancies 93
89 Appointment of acting Deputy Lord Mayor 94
90 New section 26A inserted 94
26A Allowance reviews by Minister 94
91 General provisions concerning allowances 94
92 New section 27AA inserted 96
27AA Councillor taken to not have conflict of interest for
purposes Division 1A of Part 4 of the Local
Government Act 1989 96
561191B.I-9/9/2008 v BILL LA INTRODUCTION 9/9/2008
Clause Page
PART 7--AMENDMENTS TO THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 97
93 Amendments to the Victorian Civil and Administrative
Tribunal Act 1998 97
PART 13B--LOCAL GOVERNMENT ACT 1989 97
46E Constitution of Tribunal 97
46F Costs 98
PART 8--REPEAL OF AMENDING ACT 99
94 Repeal of amending Act 99
ENDNOTES 100
561191B.I-9/9/2008 vi BILL LA INTRODUCTION 9/9/2008
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Local Government Amendment
(Councillor Conduct and Other
Matters) Bill 2008
A Bill for an Act to amend the Local Government Act 1989, the City
of Melbourne Act 2001 and the Victorian Civil and Administrative
Tribunal Act 1998 and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The purpose of this Act is to--
(a) amend the Local Government Act 1989
5 to--
(i) further provide for standards of conduct
for Councillors and provide for
arrangements to deal with Councillor
misconduct;
561191B.I-9/9/2008 1 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 1--Preliminary
s. 2
(ii) redefine what constitutes a conflict of
interest and specify further duties with
respect to the disclosure of a conflict of
interest;
5 (iii) alter the provisions relating to the
payment of Councillor allowances;
(iv) provide for increased transparency in
the decision-making processes of
Councils;
10 (v) enhance the operation of the Act;
(b) amend the City of Melbourne Act 2001
to--
(i) alter provisions in relation to the
payment of Councillor allowances;
15 (ii) provide arrangements for the offices of
Lord Mayor and Deputy Lord Mayor in
the event that either is suspended or
required to take leave of absence;
(iii) clarify the operation of the Act;
20 (c) make consequential amendments to the
Victorian Civil and Administrative
Tribunal Act 1998.
2 Commencement
(1) This Act, except Part 4, comes into operation on
25 the day after the day on which it receives the
Royal Assent.
(2) Subject to subsection (3), Part 4 comes into
operation on a day or days to be proclaimed.
(3) If a provision referred to in subsection (2) does
30 not come into operation before 1 January 2009, it
comes into operation on that day.
561191B.I-9/9/2008 2 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 1--Preliminary
s. 3
3 Principal Act
In this Act, the Local Government Act 1989 is See:
Act No.
called the Principal Act. 11/1989.
Reprint No. 9
as at
1 April 2007
and
amending
Act Nos
26/2007,
2/2008,
12/2008 and
35/2008.
LawToday:
www.
legislation.
vic.gov.au
__________________
561191B.I-9/9/2008 3 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 2--Councillor Allowances
s. 4
PART 2--COUNCILLOR ALLOWANCES
4 New sections 73A and 73B inserted
After section 73 of the Principal Act insert--
"73A Review of allowance categories
5 (1) The Minister must, at least once every year,
review the allowance category for each
Council.
(2) In conducting a review under subsection (1),
the Minister must have regard to--
10 (a) changes in the number of residents in
each municipal area; and
(b) variations in the total recurrent revenue
of each Council after adjusting for
inflation.
15 (3) If a review conducted by the Minister under
this section results in a finding that one or
more Councils in the categories of Councils
require alteration, the Minister must specify
by notice published in the Government
20 Gazette, the Councils that are in each
category of Councils following the review.
(4) A notice published under subsection (3), to
the extent that it varies the amounts, limits,
ranges or categories specified in an Order in
25 Council made under section 74B, varies the
Order from the date specified in the notice as
the date on which the variation has effect.
(5) In subsection (2), total recurrent revenue
means the total revenue of the Council
30 reported in the financial statements of the
Council for the previous financial year after
adjusting for any items that are
extraordinary, abnormal or non-recurring.
561191B.I-9/9/2008 4 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 2--Councillor Allowances
s. 4
73B Review of allowance limits and ranges
(1) In this section, adjustment factor means the
percentage increase to be applied to
Councillor and Mayoral allowance limits and
5 ranges.
(2) The Minister must, at least once every year,
review the limits and ranges of Councillor
and Mayoral allowances.
(3) The Minister must have regard to
10 movements in the levels of remuneration of
executives within the meaning of the Public
Administration Act 2004 when reviewing
the limits and ranges of Councillor and
Mayoral allowances under subsection (2).
15 (4) If a review conducted by the Minister under
this section results in a finding that
Councillor and Mayoral allowances should
be adjusted, the Minister must specify by
notice published in the Government
20 Gazette--
(a) an adjustment factor; and
(b) the new limits and ranges of allowances
for each category of Councils, adjusted
in accordance with the adjustment
25 factor.
(5) If a notice is published in the Government
Gazette under subsection (4), a Council must
increase Councillor and Mayoral allowances
in accordance with the adjustment factor
30 specified in the notice.".
561191B.I-9/9/2008 5 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 2--Councillor Allowances
s. 5
5 Councillor and Mayoral Allowances
(1) After section 74(1) of the Principal Act insert--
"(1A) A Council may review and determine the
level of the Councillor allowance and the
5 Mayoral allowance after an Order in Council
is made by the Governor in Council under
section 74B that varies the limits or ranges of
allowances payable by the Council.
(1B) A Council may review and determine the
10 level of the Councillor allowance and the
Mayoral allowance after--
(a) the Minister, by notice published in the
Government Gazette under section 73A
or 74C, has changed the category of the
15 Council; or
(b) an Order in Council under section 74B
has been made changing the category of
the Council.".
(2) In section 74(2) of the Principal Act, for
20 "subsection (1) are payable during the next 4
financial years" substitute "subsections (1), (1A)
or (1B) are payable from the date of the resolution
of the Council determining the levels of
allowances".
25 (3) For section 74(3) of the Principal Act
substitute--
"(3) A Council can only vary the allowances
determined under subsection (1) if--
(a) the Council has conducted a review
30 under subsection (1), (1A) or (1B); or
(b) the Council is required to increase
allowances in accordance with a notice
published under section 73B specifying
an adjustment factor.".
561191B.I-9/9/2008 6 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 2--Councillor Allowances
s. 6
6 General provisions relating to allowances
(1) After section 74A(1) of the Principal Act insert--
"(1A) If a Councillor is appointed to act as Mayor
under section 73(3) for a continuous period
5 exceeding 50 days, the acting Mayor may be
paid a Mayoral allowance instead of a
Councillor allowance for the period that he
or she is acting as Mayor.".
(2) For section 74A(2) of the Principal Act
10 substitute--
"(2) Subject to subsection (3), a Council must pay
a Councillor allowance or Mayoral
allowance as specified in the most recent
of--
15 (a) the relevant Order in Council made
under section 74B; or
(b) a Minister's notice published under
section 73A, 73B or 74C.
(2A) In addition to complying with the relevant
20 Order in Council or Minister's notice referred
to in subsection (2), a Council must pay a
Councillor allowance or Mayoral allowance
in accordance with any review and
determination made by a Council under
25 section 74.".
(3) In sections 74A(3) and 74A(4) of the Principal
Act omit "under section 74".
(4) After section 74A(4) of the Principal Act insert--
"(5) A person elected to be a Councillor is
30 entitled to receive a Councillor allowance
from the date the person takes the oath of
office under section 63.
561191B.I-9/9/2008 7 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 2--Councillor Allowances
s. 7
(6) A Councillor elected to be Mayor is entitled
to receive a Mayoral allowance from the date
he or she is elected under section 71.".
7 Repeal of sections 74B(3) and 74B(4)
5 Sections 74B(3) and 74B(4) of the Principal Act
are repealed.
8 Advisory panel
(1) For section 74C(2) of the Principal Act
substitute--
10 "(2) A Council may make a submission to the
local government panel requesting the panel
to consider a change of category for the
Council.
(2A) The Minister may request a local
15 government panel to review the category of
Council for a particular Council with respect
to allowances.".
(2) For section 74C(3) of the Principal Act
substitute--
20 "(3) If after considering a submission under
subsection (2) or a request made by the
Minister under subsection (2A), the local
government panel finds that the category of
Council for the Council should be changed
25 or set at a particular level with respect to
allowances, the local government panel may
recommend to the Minister that the change
be made pursuant to the findings of the local
government panel.".
30 (3) In section 74C(4) of the Principal Act, after "(3)"
insert "by notice in the Government Gazette".
561191B.I-9/9/2008 8 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 2--Councillor Allowances
s. 9
9 Section 75 substituted
For section 75 of the Principal Act substitute--
"75 Reimbursement of expenses of Councillors
(1) A Council must reimburse a Councillor for
5 expenses if the Councillor--
(a) applies in writing to the Council for
reimbursement of expenses; and
(b) establishes in the application to Council
that the expenses were reasonable bona
10 fide Councillor out-of-pocket expenses
incurred while performing duties as a
Councillor.
(2) In this section, duties as a Councillor means
duties performed by a Councillor that are
15 necessary or appropriate for the purposes of
achieving the objectives of a Council having
regard to any relevant Act, regulations,
Ministerial guidelines or Council policies.
75A Reimbursement of expenses of members
20 of council committees
A Council may reimburse members of
council committees for necessary out-of-
pocket expenses incurred while performing
duties as a committee member.
25 75B Councillor reimbursement policy
(1) A Council must adopt and maintain a policy
in relation to the reimbursement of expenses
for Councillors and members of Council
committees.
561191B.I-9/9/2008 9 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 2--Councillor Allowances
s. 9
(2) A policy adopted by Council under this
section must be consistent with--
(a) the prescribed types of Councillor out-
of-pocket expenses that must be
5 reimbursed if the expenses are
reasonable and bona fide; and
(b) the prescribed procedures to be
followed by Councils in relation to the
reimbursement of out-of-pocket
10 expenses.
(3) A Council must keep a copy of the policy
adopted and maintained under this section
available for inspection at the office of the
Council.
15 75C Resources and facilities for Councillors
A Council must make available for the
Mayor and the Councillors the minimum
resources and facilities prescribed for the
purposes of this section.".
__________________
561191B.I-9/9/2008 10 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 3--Councillor Conduct Amendments
s. 10
PART 3--COUNCILLOR CONDUCT AMENDMENTS
10 Definitions
Insert the following definitions in section 3(1) of
the Principal Act--
5 "Councillor Code of Conduct means the code of
conduct developed by a Council under
section 76C;
Councillor conduct principles means the
principles specified in sections 76B
10 and 76BA;
Department means the Department of Planning
and Community Development;
Secretary means Secretary to the Department;".
11 Disqualifications
15 (1) After section 29(1)(f) of the Principal Act
insert--
"(fa) he or she has been disqualified under
section 81K after a finding of gross
misconduct and the period of disqualification
20 specified in the order made by VCAT under
that section has not expired; or".
(2) In section 29(2)(a) of the Principal Act for
"76B(3), 77 or 79" substitute "76D, 79, 80A
or 80B".
25 (3) After section 29(3) of the Principal Act insert--
"(4) If a Councillor is charged with an offence
referred to in subsection (2), the Secretary
may apply to VCAT for an order requiring
the Councillor to take leave of absence from
30 the office of Councillor until the proceedings
in respect of the charge are finally
determined.
561191B.I-9/9/2008 11 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 3--Councillor Conduct Amendments
s. 11
(5) Before VCAT makes an order under
subsection (4), VCAT must have regard to
the nature and circumstances of the charge.
(6) An order made under subsection (4) ceases
5 to have effect if--
(a) the relevant charge is withdrawn; or
(b) the Councillor is not convicted of the
offence.
(7) If--
10 (a) a person is not capable of becoming a
Councillor or cannot continue to be a
Councillor because he or she has been
convicted of an offence referred to in
subsection (2); and
15 (b) that person lodges an appeal in respect
of the conviction--
he or she is taken to be on leave of absence
from the office of Councillor and their
allowance must be withheld until the appeal
20 is determined or withdrawn.
(8) If the conviction referred to in subsection (7)
is quashed following the appeal--
(a) the leave of absence the Councillor was
required to take ceases; and
25 (b) the Councillor is entitled to receive any
allowances that were withheld during
the leave period.".
561191B.I-9/9/2008 12 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 3--Councillor Conduct Amendments
s. 12
12 Section 30 substituted
For section 30 of the Principal Act substitute--
"30 Relief from disqualification
(1) Any person convicted of an offence referred
5 to in section 29(2), and disqualified, may
apply to VCAT for relief from that
disqualification after a period of 4 years from
the date of the conviction.
(2) VCAT may grant a person who has made an
10 application under subsection (1) relief from
disqualification if VCAT is satisfied that the
person is a fit and proper person to seek
office as a Councillor having regard to--
(a) the nature of the offence that gave rise
15 to the disqualification; and
(b) the conduct of the person since the
disqualification; and
(c) any other relevant considerations.".
13 Term of office
20 After section 72(1)(c) of the Principal Act
insert--
"(ca) if he or she becomes ineligible to hold office
under section 81K; or".
14 Section 76B substituted
25 For section 76B of the Principal Act substitute--
"76B Primary principle of Councillor conduct
It is a primary principle of Councillor
conduct that, in performing the role of a
Councillor, a Councillor must--
30 (a) act with integrity; and
561191B.I-9/9/2008 13 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 3--Councillor Conduct Amendments
s. 14
(b) impartially exercise his or her
responsibilities in the interests of the
local community; and
(c) not improperly seek to confer an
5 advantage or disadvantage on any
person.
76BA General Councillor conduct principles
In addition to acting in accordance with the
primary principle of Councillor conduct
10 specified in section 76B, in performing the
role of a Councillor, a Councillor must--
(a) avoid conflicts between his or her
public duties as a Councillor and his or
her personal interests and obligations;
15 (b) act honestly and avoid statements
(whether oral or in writing) or actions
that will or are likely to mislead or
deceive a person;
(c) treat all persons with respect and have
20 due regard to the opinions, beliefs,
rights and responsibilities of other
Councillors, council officers and other
persons;
(d) exercise reasonable care and diligence
25 and submit himself or herself to the
lawful scrutiny that is appropriate to his
or her office;
(e) endeavour to ensure that public
resources are used prudently and solely
30 in the public interest;
561191B.I-9/9/2008 14 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 3--Councillor Conduct Amendments
s. 15
(f) act lawfully and in accordance with the
trust placed in him or her as an elected
representative;
(g) support and promote these principles by
5 leadership and example and act in a
way that secures and preserves public
confidence in the office of Councillor.".
15 Code of Conduct
(1) In the heading to section 76C of the Principal Act
10 before "Code" insert "Councillor".
(2) For section 76C(1) of the Principal Act
substitute--
"(1) A Council must develop and approve a
Councillor Code of Conduct for the Council
15 within 12 months after the commencement
of section 15 of the Local Government
Amendment (Councillor Conduct and
Other Matters) Act 2008.".
(3) In section 76C(2) of the Principal Act--
20 (a) after "the" (where first occurring) insert
"Councillor";
(b) for "6 months" substitute "12 months".
(4) In section 76C(3) of the Principal Act--
(a) after "A" insert "Councillor";
25 (b) for paragraph (a), substitute--
"(a) must include the Councillor conduct
principles;"
(c) in paragraph (b), for "must" substitute
"may";
30 (d) paragraph (c) is repealed.
(5) Section 76C(4) of the Principal Act is repealed.
561191B.I-9/9/2008 15 BILL LA INTRODUCTION 9/9/2008
Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 3--Councillor Conduct Amendments
s. 16
(6) In section 76C(5) of the Principal Act after "A"
insert "Councillor".
(7) After section 76C(5) of the Principal Act insert--
"(5A) A Councillor Code of Conduct is inoperative
5 to the extent that it is inconsistent with any
Act or regulation.".
(8) In section 76C(6) of the Principal Act after
"current" insert "Councillor".
(9) After section 76C(6) of the Principal Act insert--
10 "(7) On and from the commencement of
section 15 of the Local Government
Amendment (Councillor Conduct and
Other Matters) Act 2008, a Councillor
Code of Conduct is taken to include the
15 Councillor conduct principles.".
16 New sections 76D and 76E inserted
After section 76C of the Principal Act insert--
"76D Misuse of position
(1) A person who is, or has been, a Councillor or
20 member of a special committee must not
misuse his or her position--
(a) to gain or attempt to gain, directly or
indirectly, an advantage for themselves
or for any other person; or
25 (b) to cause, or attempt to cause, detriment
to the Council or another person.
Penalty: 100 penalty units.
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Part 3--Councillor Conduct Amendments
s. 16
(2) For the purposes of this section,
circumstances involving the misuse of a
position by a person who is, or has been, a
Councillor or member of a special committee
5 include--
(a) making improper use of information
acquired as a result of the position he or
she held or holds; or
(b) disclosing information that is
10 confidential information within the
meaning of section 77(2); or
(c) directing or improperly influencing, or
seeking to direct or improperly
influence, a member of Council staff in
15 contravention of section 76E; or
(d) exercising or performing, or purporting
to exercise or perform, a power, duty or
function that he or she is not authorised
to exercise or perform; or
20 (e) using public funds or resources in a
manner that is improper or
unauthorised.
(3) This section--
(a) has effect in addition to, and not in
25 derogation from, any Act or law
relating to the criminal or civil liability
of Councillors or members of special
committees; and
(b) does not prevent the institution of any
30 criminal or civil proceedings in respect
of that liability.
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Part 3--Councillor Conduct Amendments
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76E Improper direction and improper
influence
(1) A Councillor must not improperly direct or
improperly influence, or seek to improperly
5 direct or improperly influence, a member of
Council staff in the exercise of any power or
in the performance of any duty or function
by the member.
(2) A Councillor must not direct, or seek to
10 direct, a member of Council staff--
(a) in the exercise of a delegated power, or
the performance of a delegated duty or
function of the Council; or
(b) in the exercise of a power or the
15 performance of a duty or function
exercised or performed by the member
as an authorised officer under this Act
or any other Act; or
(c) in the exercise of a power or the
20 performance of a duty or function the
member exercises or performs in an
office or position the member holds
under another Act; or
(d) in relation to advice provided to the
25 Council or a special committee,
including advice in a report to the
Council or special committee.
(3) This section does not apply to a decision of
the Council or a special committee that is
30 made within the powers, duties or functions
conferred under this or any other Act.".
17 Confidential information
The penalty at the foot of section 77(1) of the
Principal Act is repealed.
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Part 3--Councillor Conduct Amendments
s. 18
18 New Division 1B inserted in Part 4
After section 81 of the Principal Act insert--
"Division 1B--Councillor Conduct Panels
81A Definitions
5 In this Division--
CCP Registrar means a member of Council
staff who is not the Chief Executive
Officer and who is appointed in writing
by the Chief Executive Officer to be the
10 Councillor Conduct Panel Registrar for
the Council under clause 8(1) of
Schedule 5;
Councillor Conduct Panel means a panel of
2 people established by the MAV under
15 Schedule 5;
gross misconduct by a Councillor means
behaviour that--
(a) contravenes--
(i) the Councillor conduct
20 principles; and
(ii) a section of this Act, the
contravention of which has a
penalty of at least 10 penalty
units; or
25 (b) demonstrates that a Councillor is
not of good character or is
otherwise not a fit and proper
person to hold the office of
Councillor;
30 MAV means the body corporate known as
the Municipal Association of Victoria
established under the Municipal
Association Act 1907;
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Part 3--Councillor Conduct Amendments
s. 18
misconduct by a Councillor means--
(a) conduct by a Councillor that is in
breach of the Councillor Code of
Conduct; or
5 (b) the failure of a Councillor to
comply with a direction of a
Councillor Conduct Panel where
the Panel has not made a finding
of misconduct against the
10 Councillor;
serious misconduct by a Councillor
means--
(a) the failure of a Councillor to
comply with a direction of a
15 Councillor Conduct Panel
following a finding of misconduct
made by the Councillor Conduct
Panel in respect of the Councillor;
or
20 (b) the failure of a Councillor to cease
conduct that contravenes the
Councillor Code of Conduct after
a Councillor Conduct Panel or
VCAT has made a finding of
25 misconduct or serious misconduct
against the Councillor in respect
of that behaviour; or
(c) conduct by a Councillor that
contravenes the Councillor
30 conduct principles after the
Councillor has had a previous
finding of misconduct, serious
misconduct or gross misconduct
made against them by a
35 Councillor Conduct Panel or
VCAT in the last 4 years; or
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Part 3--Councillor Conduct Amendments
s. 18
(d) conduct by a Councillor that
contravenes--
(i) the Councillor conduct
principles; and
5 (ii) section 76E or 77.
81B Application to Councillor Conduct Panel
(1) An application for a Councillor Conduct
Panel to make a finding of misconduct
against a Councillor, or to authorise an
10 application to VCAT for a finding of serious
misconduct, may be made by--
(a) the Council, following a resolution of
the Council to make an application to a
Councillor Conduct Panel under this
15 section in respect of a Councillor's
conduct; or
(b) a Councillor; or
(c) a group of Councillors.
(2) An application made by a Councillor or
20 group of Councillors must be lodged with
the CCP Registrar.
(3) An application made under this section
must--
(a) specify the ground or grounds for the
25 application;
(b) set out the circumstances, actions or
inactions of the Councillor who is the
subject of the application that are
alleged as constituting misconduct or
30 serious misconduct;
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(c) if the Councillor Code of Conduct
provides processes for resolving
internal disputes between
Councillors--
5 (i) the reasons why the matter cannot
be resolved by those processes; or
(ii) if those processes were used, the
reasons why the matter was not
resolved through those processes;
10 (d) if the application is made by the
Council or a group of Councillors, state
the name and address of the Councillor
whom the Council has, or group have,
appointed as representative of the
15 Council or group.
81C Dismissal of application
A Councillor Conduct Panel may dismiss an
application made by a Councillor or group of
Councillors under section 81B at any time
20 if--
(a) the application is frivolous, vexatious,
misconceived or lacking in substance;
or
(b) insufficient reasons have been given to
25 explain why the matter cannot be
resolved by internal dispute resolution
processes.
81D Referral to VCAT
(1) A Councillor who is the subject of an
30 application made under section 81B (the
respondent) may apply to the Councillor
Conduct Panel for referral of the matter to
VCAT at any time before the Panel
determines the matter.
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(2) A Councillor Conduct Panel must refer an
application made under section 81B to
VCAT for determination if the respondent
makes an application under subsection (1).
5 (3) A Councillor Conduct Panel may refer an
application made under section 81B to
VCAT for determination if the Panel
considers that it cannot make a determination
because a person fails to attend a Panel
10 hearing or to provide information that the
Panel has requested.
(4) If an application made under section 81B has
been referred to VCAT for determination, a
Councillor Conduct Panel must--
15 (a) in writing, advise the applicant, the
respondent, the relevant Council and
the Minister of the referral;
(b) provide VCAT with a copy of the
application made under section 81B
20 and any other documents the Panel
considers relevant to the application.
(5) The applicant in the application made under
section 81B is taken to be the applicant in the
application referred to VCAT under this
25 section.
81E Application on grounds of gross
misconduct
(1) VCAT may hear an application made by the
Secretary that alleges gross misconduct by a
30 Councillor.
(2) An application made under subsection (1)
may only be made by the Secretary.
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81F Parties to a VCAT proceeding
(1) The applicant and respondent are parties to a
proceeding referred to, or commenced in,
VCAT under section 81D, 81E or 81J(1)(b).
5 (2) In addition to any other parties, the following
may request to be joined as parties to a
VCAT proceeding referred to, or
commenced, under section 81D or
81J(1)(b)--
10 (a) the Secretary;
(b) the relevant Council.
81G Notice of a Councillor Conduct Panel
(1) A Councillor Conduct Panel must--
(a) fix a time and, subject to subsection (2),
15 a place that is within the municipal
district of the relevant Council, for the
hearing to be conducted; and
(b) serve by post a notice of the time and
place of the hearing on the applicant,
20 respondent and Council.
(2) For the purposes of subsection (1)(a), a
Councillor Conduct Panel may fix a place for
the hearing that is not within the municipal
district of the relevant Council if the Panel
25 considers it necessary or appropriate in the
circumstances.
81H Procedures
(1) A Councillor Conduct Panel may--
(a) request a person to attend a hearing and
30 answer questions;
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Part 3--Councillor Conduct Amendments
s. 18
(b) request information from the applicant,
the respondent or the Council,
including confidential information held
by the Council.
5 (2) Members of a Councillor Conduct Panel that
are provided with confidential information
must ensure that the information is not
released to the public.
81I Conduct of a Councillor Conduct Panel
10 (1) A Councillor Conduct Panel must not make
a determination under section 81J until it has
conducted a hearing.
(2) The following applies to a hearing of a
Councillor Conduct Panel--
15 (a) the proceedings must be conducted
with as little formality and technicality
as the requirements of this Act and the
proper consideration of the matter
permit;
20 (b) there is no right to representation at the
hearing except if the Panel considers
that a party requires representation to
ensure that the hearing is conducted
fairly;
25 (c) the proceedings must not be open to the
public;
(d) if the hearing is based on an application
made by Council or group of
Councillors, the appointed
30 representative must represent the
Council or group of Councillors at the
hearing;
(e) the Panel is not bound by rules of
evidence but may inform itself in any
35 way it thinks fit;
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Part 3--Councillor Conduct Amendments
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(f) the Panel is bound by the rules of
natural justice;
(g) the procedure of a Panel is otherwise in
its discretion.
5 (3) At the hearing of an application, the
Councillor Conduct Panel must provide the
respondent with an opportunity to be heard.
81J Determinations by a Councillor Conduct
Panel
10 (1) After a Councillor Conduct Panel has
conducted a hearing, the Panel may--
(a) make a finding of misconduct against a
Councillor; or
(b) authorise an applicant to make an
15 application to VCAT if the Panel
considers that there are reasonable
grounds on which VCAT may make a
finding of serious misconduct against a
Councillor; or
20 (c) whether or not a finding of misconduct
against a Councillor has been made,
make a finding that remedial action is
required; or
(d) in addition to any findings made under
25 paragraphs (a) to (c), direct that the
Council amend its Councillor Code of
Conduct in a particular way or to
address a particular issue; or
(e) dismiss the application.
30 (2) If a Councillor Conduct Panel makes a
finding of misconduct against a Councillor,
the Panel may--
(a) reprimand that Councillor; or
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Part 3--Councillor Conduct Amendments
s. 18
(b) direct that Councillor to make an
apology in a form or manner
determined by the Panel; or
(c) direct that Councillor to take leave of
5 absence for a period specified by the
Panel not exceeding 2 months,
commencing on a date specified by the
Panel.
(3) If a Councillor Conduct Panel makes a
10 finding that remedial action is required under
subsection (1)(c), the Panel may--
(a) direct the Councillor who is the subject
of the application to attend mediation;
or
15 (b) direct the Councillor who is the subject
of the application to attend training; or
(c) direct the Councillor who is the subject
of the application to attend counselling.
(4) For the purposes of subsection (3), a
20 Councillor Conduct Panel may set
reasonable conditions in respect of how or
when remedial action is to be undertaken.
(5) Any necessary expenses incurred by
Councillors in attending mediation, training
25 or counselling must be paid by the Council.
(6) If a Councillor Conduct Panel directs the
Council to amend its Councillor Code of
Conduct, the Council must comply with that
direction within 3 months of the direction
30 being made.
(7) This section does not apply to a Councillor
Conduct Panel formed for the purposes of
hearing a referral from VCAT under
section 81L.
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81K Findings and orders by VCAT
(1) In the case of an application referred to, or
commenced in, VCAT under sections 81D,
81E or 81J(1)(b), VCAT may make any of
5 the following findings--
(a) that a Councillor has engaged in
conduct that constitutes misconduct;
(b) that a Councillor has engaged in
conduct that constitutes serious
10 misconduct;
(c) that a Councillor has engaged in
conduct that constitutes gross
misconduct.
(2) VCAT may, in relation to a finding of
15 misconduct under subsection (1)(a)--
(a) reprimand that Councillor; or
(b) make any or all of the following
orders--
(i) that the Councillor must make an
20 apology in a form and manner
determined by VCAT;
(ii) that the Councillor must take
leave of absence for a period
specified by VCAT not exceeding
25 2 months and commencing on a
date specified by VCAT.
(3) VCAT may make any or all of the following
orders in relation to a finding of serious
misconduct under subsection (1)(b)--
30 (a) that the Councillor is suspended from
office for a period specified by VCAT
not exceeding 6 months;
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(b) that the Councillor is ineligible to hold
the office of Mayor for a period
specified by VCAT not exceeding
4 years;
5 (c) that the Councillor is ineligible to chair
a special committee of the Council for a
period specified by VCAT not
exceeding 4 years.
(4) VCAT may make any or all of the following
10 orders in relation to a finding of gross
misconduct under subsection (1)(c)--
(a) that the Councillor is disqualified for a
period specified by VCAT not
exceeding 4 years and his or her office
15 is vacated;
(b) that the Councillor is suspended from
office for a period specified by VCAT
not exceeding 6 months;
(c) that the Councillor is ineligible to hold
20 the office of Mayor for a period
specified by VCAT not exceeding
4 years.
(5) If VCAT makes a finding of serious
misconduct or gross misconduct by a
25 Councillor, the Councillor becomes
ineligible to hold the office of Mayor for the
remainder of the Council's term, unless
VCAT otherwise orders.
81L Referral by VCAT to Councillor Conduct
30 Panel
(1) VCAT may refer a matter to a Councillor
Conduct Panel, whether or not VCAT has
made a finding under section 81K, if VCAT
considers that--
35 (a) remedial action is required; or
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(b) the Councillor Code of Conduct
requires amendment.
(2) A Councillor Conduct Panel formed for the
purposes of this section may--
5 (a) direct the Councillor who is the subject
of the referral to attend mediation; or
(b) direct the Councillor who is the subject
of the referral to attend training; or
(c) direct the Councillor who is the subject
10 of the referral to attend counselling;
(d) direct that the Council amend its
Councillor Code of Conduct in a
particular way or to address a particular
issue.
15 (3) For the purposes of subsections (2)(a), (2)(b)
and (2)(c), a Councillor Conduct Panel may
set reasonable conditions in respect of how
or when remedial action is to be undertaken.
(4) Any necessary expenses incurred by
20 Councillors in attending mediation, training
or counselling must be paid by the Council.
(5) If a Councillor Conduct Panel directs the
Council to amend its Councillor Code of
Conduct, the Council must comply with that
25 direction within 3 months of the direction
being made.
81M Notice of determinations and tabling of
decisions
(1) After a Councillor Conduct Panel has made a
30 determination under section 81J, the Panel
must give a copy of the decision to--
(a) the Council; and
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Part 3--Councillor Conduct Amendments
s. 18
(b) the parties to the matter; and
(c) the Minister.
(2) A copy of the decision given to the Council
under subsection (1)(a) must be tabled at the
5 next ordinary meeting of the Council and
recorded in the minutes for that meeting.
(3) A Councillor Conduct Panel must give a
written statement of reasons for the decision,
within 28 days of making a determination,
10 to--
(a) the Council; and
(b) the parties to the matter; and
(c) the Minister.
(4) A statement of reasons provided in
15 accordance with subsection (3) is taken to be
a statement of reasons provided in
accordance with section 46(1) of the
Victorian Civil and Administrative
Tribunal Act 1998.
20 (5) A record of the decision of VCAT, made in
respect of an application or review under this
Division in relation to a Councillor of a
Council, must be tabled at the next ordinary
meeting of the Council and recorded in the
25 minutes of that meeting.
81N Suspension of matters during election
period
(1) Applications and proceedings made and
conducted under this Division must be
30 suspended during the election period for a
general election.
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(2) If an application is made to a Councillor
Conduct Panel or VCAT for a finding of
misconduct or serious misconduct against a
person who is a Councillor before a general
5 election, and that person is not returned to
the office of Councillor as a result of the
general election, the application made
against that person who was a Councillor
before the election lapses.
10 (3) If an application is made to a Councillor
Conduct Panel or VCAT for a finding of
misconduct or serious misconduct against a
person who is a Councillor before a general
election, and that person is returned to the
15 office of Councillor as a result of the general
election, the application made against the
Councillor may resume, whether or not the
applicants were returned as a result of the
general election.
20 (4) An application under section 81E against a
person who is a Councillor before a general
election must resume after the general
election is held whether or not the person is
returned to the office of Councillor.
25 81O Breach of Act by Councillor
(1) This section applies if it appears to a
Councillor Conduct Panel that a Councillor
has committed an offence under this Act.
(2) A Councillor Conduct Panel must by notice
30 in writing notify the Secretary that a
Councillor appears to have committed an
offence under this Act as soon as the Panel
becomes aware of the apparent offence.
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81P Investigation by inspector of municipal
administration
(1) The Secretary may at any time (whether or
not the Secretary has received a notice under
5 section 81O), by notice, require a Councillor
Conduct Panel to suspend or stop the Panel's
consideration of a matter.
(2) If the Secretary has given notice to a
Councillor Conduct Panel under
10 subsection (1), the Secretary must refer the
matter that was before the Panel to an
inspector of municipal administration for
investigation under section 223B.
(3) The inspector of municipal administration
15 must commence an investigation into a
matter referred to him or her within 28 days
of the referral under subsection (2).
81Q Review by VCAT
(1) In this section, party means the applicant or
20 respondent to an application made to, and
matter heard by, a Councillor Conduct Panel,
under this Division.
(2) Subject to subsection (3), a party who is
affected by the decision made by a
25 Councillor Conduct Panel under this
Division may apply to VCAT for review of
the decision.
(3) A person is not entitled to apply for review
of a decision made by a Councillor Conduct
30 Panel to--
(a) dismiss the application because it is
frivolous, vexatious, misconceived or
lacking in substance; or
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(b) dismiss the application because
insufficient reasons have been given to
explain why the matter cannot be
resolved by internal dispute processes;
5 or
(c) authorise or not authorise an applicant
to make an application to VCAT on the
grounds of serious misconduct by a
Councillor.
10 81R Time period for making application to
VCAT
An application for review under section 81Q
must be made within 28 days of the
Councillor Conduct Panel giving a statement
15 of reasons under section 81M.
81S Councillor Conduct Panels
Schedule 5 has effect with respect to the
establishment of Councillor Conduct
Panels.".
20 19 New Schedule 5 inserted
After Schedule 4 to the Principal Act insert--
"SCHEDULE 5
PROVISIONS WITH RESPECT TO
ESTABLISHING COUNCILLOR CONDUCT
25 PANELS
1 Definitions
In this Schedule--
CCP Registrar has the same meaning as it
has in section 81A;
30 List A means the list of persons established
and maintained by the MAV under
clause 3(2);
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List A member means a person appointed to
be a member of List A by the MAV
under clause 3(2);
List B means the list of persons established
5 and maintained by the MAV under
clause 3(3);
List B member means a person appointed to
be a member of List B by the MAV
under clause 3(3);
10 local legal practitioner has the same
meaning as in the Legal Profession
Act 2004;
local practising certificate has the same
meaning as in the Legal Profession
15 Act 2004;
MAV has the same meaning as it has in
section 81A.
2 Councillor Conduct Panels
(1) Unless subclause (2) applies, a Councillor
20 Conduct Panel is to consist of 2 persons
selected and appointed by the MAV in
accordance with clause 3.
(2) If it is not possible to establish a Councillor
Conduct Panel using persons selected and
25 appointed by the MAV, one or both positions
on the panel must be filled by a person
approved by the Minister under clause 11.
3 Establishment of CCP Lists by MAV
(1) The MAV must establish and maintain
30 2 lists, to be known as List A and List B, of
eligible persons from which members of a
Councillor Conduct Panel must be selected.
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(2) For the purposes of establishing List A, the
MAV must select at least 5 persons who are
local legal practitioners and have held a local
practising certificate for at least 5 years and
5 appoint them as List A members.
(3) For the purposes of establishing List B, the
MAV must select at least 7 persons with
relevant experience in municipal governance
and appoint them as List B members.
10 (4) A List A member or List B member must not
be a person--
(a) who has been convicted of an offence
specified in section 29(2); or
(b) who is an undischarged bankrupt; or
15 (c) who has property that is subject to
control under the law relating to
bankruptcy; or
(d) who is, or has been, in the last 3 years,
an employee, contractor or member of
20 the board of management of the MAV
or any other body that represents the
interests of councils, councillors or
council staff.
(5) The MAV must appoint persons to List A
25 and List B within 6 months after the
commencement of section 19 of the Local
Government Amendment (Councillor
Conduct and Other Matters) Act 2008.
(6) Subject to subclause (7), the MAV may
30 determine how often the Lists are updated.
(7) A person appointed to List A or List B may
not be removed from that list for a period of
2 years unless the person--
(a) resigns from the position; or
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2008
Part 3--Councillor Conduct Amendments
s. 19
(b) is removed from the list under
clause 4(5).
4 Notifying Councils of intended appointees
(1) The MAV must, once the MAV has selected
5 or updated potential List A members and List
B members, notify all Councils in writing, at
least 30 days before the selected persons are
appointed to the appropriate list, of--
(a) the names of the people on List A and
10 List B; and
(b) the order of the names on List A and
List B; and
(c) the process used by the MAV in
selecting the persons for List A and
15 List B; and
(d) the schedule of fees set for Councillor
Conduct Members.
(2) The MAV must publish List A and List B on
the Internet website maintained by the MAV
20 and ensure that the order of names in each
list appears in the same order of which
Councils were advised under subclause (1).
(3) If the MAV considers that a person on List A
or List B is no longer a fit and proper person
25 to be on that list, the MAV may apply to the
Minister for the Minister's consent to remove
the person from the list.
(4) In determining whether to consent to the
removal of a person from a list, the Minister
30 must have regard to the principles of natural
justice and whether the person is a fit and
proper person to sit on a Councillor Conduct
Panel.
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Part 3--Councillor Conduct Amendments
s. 19
(5) If the Minister consents to the removal of a
person from a list, the MAV must remove
that person from the list.
5 Establishing a Councillor Conduct
5 Panel--duties of CCP Registrar
(1) A CCP Registrar must, without undue delay,
take the steps set out in subclause (2)--
(a) on receipt of an application lodged by a
Councillor or group of Councillors; or
10 (b) following a resolution of a Council to
apply for a Councillor Conduct Panel;
or
(c) following a referral made by VCAT
under section 81L(1).
15 (2) Unless clause 6 applies, a CCP Registrar
must notify the MAV that a Councillor
Conduct Panel is required and ensure that--
(a) if subclause (1)(a) or (1)(b) applies, a
copy of the application is provided to
20 all parties; or
(b) if subclause (1)(c) applies, a copy of the
basis of the referral by VCAT is
provided to all parties.
(3) The CCP Registrar must provide the
25 members of the Councillor Conduct Panel
with copies of the application or the basis for
the referral by VCAT as soon as possible
after the MAV has advised the CCP
Registrar of who those members are.
30 (4) The CCP Registrar must not provide a copy
of the application or referral or any other
document relevant to a matter to any person
other than in accordance with this Act unless
the Councillor Conduct Panel instructs the
35 CCP Registrar to do so.
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Part 3--Councillor Conduct Amendments
s. 19
6 Related applications
(1) If a CCP Registrar receives an application
(a subsequent application) that appears to be
related to another application for which a
5 Councillor Conduct Panel has already been
formed, the CCP Registrar must forward the
subsequent application directly to the
existing Councillor Conduct Panel.
(2) On receipt of the subsequent application, the
10 Councillor Conduct Panel must decide,
based on the subject matter of the subsequent
application, either--
(a) to join the subsequent application to the
application the Panel was formed to
15 hear; or
(b) to return the subsequent application to
the CCP Registrar without hearing the
matter.
(3) If the Councillor Conduct Panel returns the
20 subsequent application to the CCP Registrar
under subclause (2)(b), the CCP Registrar
must take the steps set out in clause 5(2)(a).
(4) In subclause (1), receives an application is
taken to include a resolution of the Council
25 to make an application.
7 Other duties of CCP Registrar
A CCP Registrar must--
(a) attend Councillor Conduct Panel
hearings; and
30 (b) keep a written record of Councillor
Conduct Panel hearings; and
(c) keep copies of all documents requested
by, and given to, a Councillor Conduct
Panel; and
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Part 3--Councillor Conduct Amendments
s. 19
(d) ensure that venues and resources are
made available for hearings conducted
by, and deliberations of, a Councillor
Conduct Panel; and
5 (e) at the conclusion of a Councillor
Conduct Panel process, seal the records
of the Panel and give those records to
the Chief Executive Officer.
8 Duties of the Chief Executive Officer in
10 relation to Councillor Conduct Panels
(1) The Chief Executive Officer must appoint, in
writing, a member of Council staff to be the
CCP Registrar.
(2) The Chief Executive Officer must--
15 (a) ensure the members of a Councillor
Conduct Panel are paid in accordance
with the schedule of fees set by the
MAV; and
(b) subject to subclause (3), ensure the
20 sealed records of the Councillor
Conduct Panel are stored safely and
made accessible only in accordance
with subclause (3) for a period of
7 years after the conclusion of the
25 matter.
(3) If VCAT, a court or an Inspector of
Municipal Administration requests the sealed
records referred to in subclause (2), the Chief
Executive Officer must comply with that
30 request.
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Part 3--Councillor Conduct Amendments
s. 19
9 Councillor Conduct Panel formation
(1) The MAV must, on receipt of a notification
from a CCP Registrar that a Panel is
required, select a person from List A and a
5 person from List B to form a Councillor
Conduct Panel in accordance with this clause
without undue delay.
(2) The MAV must select the person at the
beginning of each list on the first occasion
10 that a Councillor Conduct Panel is requested
and thereafter must select the next person
(after the person who has most recently been
selected) on each list to form a Panel.
(3) If a Councillor Conduct Panel member
15 excuses himself or herself under clause 10,
the MAV must select the next person that
appears on the list after the excused Panel
member.
(4) The person selected from List A is the
20 chairperson for the Councillor Conduct
Panel.
(5) The MAV must notify the CCP Registrar of
the members selected for the Councillor
Conduct Panel as soon as possible after the
25 selection has been made.
10 Conflicts of interest, ineligibility or
unavailability of Councillor Conduct
Panel members
(1) A person selected to be a member of a
30 Councillor Conduct Panel must excuse
himself or herself if--
(a) the Panel member has been a
Councillor, employee, consultant or
contractor of the Council in respect of
35 which the matter before the Panel
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2008
Part 3--Councillor Conduct Amendments
s. 19
relates at any time in the preceding
5 years; or
(b) the Panel member has a close personal
or professional relationship with any
5 Councillor of the Council in respect of
which the matter before the Panel
relates; or
(c) the Panel member has a conflict of
interest of any kind; or
10 (d) the Panel member has become
ineligible to be on a List under
clause 3(4).
(2) A Councillor Conduct Panel member may
excuse himself or herself if the Panel
15 member is unavailable at the time the Panel
must hear and deliberate the matter.
(3) A Councillor Conduct Panel member who
excuses himself or herself under this clause
must provide their reasons for doing so in
20 writing to the MAV.
11 Establishment of Councillor Conduct
Panel impossible based on existing lists
(1) If it is not possible to establish a Councillor
Conduct Panel using the persons appointed
25 to List A and List B, the MAV may
recommend to the Minister a person or
persons the MAV considers to be suitable to
be a member or members of a Councillor
Conduct Panel.
30 (2) The Minister may approve the person or
persons recommended under subclause (1) to
be a member or members of a Councillor
Conduct Panel.
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Part 3--Councillor Conduct Amendments
s. 19
12 Dissolution of Councillor Conduct Panel
(1) A Councillor Conduct Panel is dissolved
when any of the following occurs--
(a) the Panel dismisses an application
5 under section 81C;
(b) the Panel gives notice of the Panel's
decision and the Panel has given a
statement of reasons under section 81M
to the persons specified in
10 section 81M(3);
(c) the matter has been referred to VCAT;
(d) the consideration of the matter by the
Panel has been stopped by the Secretary
under section 81P.
15 (2) If a Councillor Conduct Panel has been
dissolved under subclause (1) and the matter
that the Panel had been considering requires
further consideration at a subsequent time by
a Panel, a new Panel must be established to
20 consider the matter.
13 Immunity
(1) A member of a Councillor Conduct Panel
under this Act is not personally liable for
anything done or omitted to be done in good
25 faith--
(a) in the exercise of a power or the
discharge of a duty under this Act; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power
30 or the discharge of a duty under this
Act.
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Part 3--Councillor Conduct Amendments
s. 19
(2) Any liability resulting from an act or
omission that would but for subsection (1)
attach to a member of a Councillor Conduct
Panel attaches to the Council.".
__________________".
__________________
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2008
Part 4--Conflict of Interest
s. 20
PART 4--CONFLICT OF INTEREST
20 New section 76AA inserted
After the heading to Division 1A of Part 4 of the
Principal Act insert--
5 "76AA Definitions
In this Division--
assembly of Councillors (however titled)
means a planned or scheduled meeting
of at least 3 Councillors and one
10 member of Council staff which
considers matters that are intended or
likely to be--
(a) the subject of a decision of the
Council; or
15 (b) subject to the exercise of a
function, duty or power of the
Council that has been delegated to
a person or committee--
but does not include a meeting of the
20 Council, a special committee of the
Council, a club, association, peak body,
political party or other organisation;
matter means a matter with which a Council,
special committee or a member of
25 council staff is concerned and that will
require--
(a) a power to be exercised, or a duty
or function to be performed, or a
decision to be made, by the
30 Council or a special committee in
respect of the matter;
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Part 4--Conflict of Interest
s. 21
(b) a power to be exercised, or a duty
or function to be performed, or a
decision to be made by a member
of council staff in respect of the
5 matter;
relevant person means a person who is a--
(a) Councillor; or
(b) member of a special committee; or
(c) member of Council staff.".
10 21 Sections 77A, 77B and 78 substituted
For sections 77A, 77B and 78 of the Principal Act
substitute--
"77A Direct and indirect interests
(1) A relevant person has a conflict of interest in
15 respect of a matter if the relevant person has
a direct interest or indirect interest in the
matter.
(2) A relevant person has a direct interest in a
matter if the relevant person has an interest
20 of a kind described in section 77B.
(3) A relevant person has an indirect interest in a
matter if the relevant person has--
(a) a close association as specified in
section 78; or
25 (b) an indirect financial interest as
specified in section 78A; or
(c) a conflicting duty as specified in
section 78B; or
(d) received an applicable gift as specified
30 in section 78C; or
(e) become an interested party as specified
in section 78D.
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Part 4--Conflict of Interest
s. 21
(4) A relevant person does not have a conflict of
interest in a matter if the direct interest or
indirect interest of the relevant person is so
remote or insignificant that the direct interest
5 or indirect interest could not reasonably be
regarded as capable of influencing any
actions or decisions of the relevant person in
relation to the matter.
(5) A relevant person does not have a conflict of
10 interest in a matter if the direct interest or
indirect interest the relevant person holds is
one held as a resident, ratepayer or voter and
the interest--
(a) is held in common with other residents,
15 ratepayers or voters; and
(b) does not exceed the interests held by
other residents, ratepayers or voters.
77B Direct interest
(1) A person has a direct interest in a matter if
20 there is a reasonable likelihood that the
benefits, obligations, opportunities or
circumstances of the person would be
directly altered if the matter is decided in a
particular way.
25 (2) Without limiting subsection (1), a person has
a direct interest in a matter if--
(a) there is a reasonable likelihood that the
person will receive a direct benefit or
loss that can be measured in financial
30 terms if the matter is decided in a
particular way;
(b) there is a reasonable likelihood that the
residential amenity of the person will
be directly affected if the matter is
35 decided in a particular way.
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Part 4--Conflict of Interest
s. 21
78 Indirect interest by close association
(1) In this section--
daughter means a biological daughter, step-
daughter, adopted daughter, or female
5 child for whom the person has custodial
responsibilities;
direct relative means the spouse, domestic
partner, son, daughter, mother, father,
brother or sister of the person;
10 domestic partner of a person means--
(a) a person who is in a registered
relationship with the person; or
(b) an adult person to whom the
person is not married but with
15 whom the person is in a
relationship as a couple where one
or each of them provides personal
or financial commitment and
support of a domestic nature for
20 the material benefit of the other,
irrespective of their genders and
whether or not they are living
under the same roof, but does not
include a person who provides
25 domestic support and personal
care to the person--
(i) for fee or reward; or
(ii) on behalf of another person
or an organisation (including
30 a government or government
agency, a body corporate or
a charitable or benevolent
organisation);
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Part 4--Conflict of Interest
s. 21
family member means--
(a) a spouse or domestic partner of
the person; or
(b) a son, daughter, mother, father,
5 brother or sister that regularly
resides with the person;
relative means--
(a) a direct relative of the person;
(b) a direct relative of a person who is
10 the direct relative of the person;
son means a biological son, step son,
adopted son or male child for which the
person has custodial responsibilities.
(2) A person has an indirect interest by close
15 association in a matter if--
(a) a family member of the person has a
direct interest or an indirect interest in a
matter; or
(b) a relative of the person has a direct
20 interest in a matter; or
(c) a member of the person's household has
a direct interest in a matter.
(3) For the purposes of the definition of
domestic partner in subsection (1)--
25 (a) registered relationship has the same
meaning as in the Relationships Act
2008; and
(b) in determining whether persons who
are not in a registered relationship are
30 domestic partners of each other, all the
circumstances of their relationship are
to be taken into account, including any
one or more of the matters referred to in
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Part 4--Conflict of Interest
s. 21
section 35(2) of the Relationships Act
2008 as may be relevant in a particular
case; and
(c) a person is not a domestic partner of
5 another person only because they are
co-tenants.
78A Indirect interest that is an indirect
financial interest
(1) A person has an indirect financial interest in
10 a matter if the person is likely to receive a
benefit or incur a loss, measurable in
monetary terms, as a consequence of a
benefit received or loss incurred by another
person who has a direct or indirect interest in
15 the matter.
(2) Without limiting subsection (1), a person has
an indirect financial interest that is a conflict
of interest if--
(a) the person has a beneficial interest in
20 shares of a company or other body that
has a direct interest in the matter,
except in the circumstances specified in
subsection (3);
(b) the person is owed money from another
25 person and that other person has a
direct interest in the matter.
(3) If a person, and family members of the
person, hold shares in a company or body
that has a direct or indirect interest in a
30 matter with a combined total value that does
not exceed $10 000 and the total value of
issued shares of the company or body
exceeds $10 million, the person's indirect
financial interest is not a conflict of interest.
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Part 4--Conflict of Interest
s. 21
(4) Subsection (2)(b) does not apply if the other
person is an authorised deposit-taking
institution.
(5) For the purposes of determining the value of
5 shares under this section, the share value is
to be taken from--
(a) the close of business on the most recent
of 30 June or 31 December; or
(b) if the person has lodged an ordinary
10 return since the most recent of 30 June
or 31 December, the close of business
on the date the return was submitted.
78B Indirect interest because of conflicting
duties
15 (1) A person has an indirect interest in a matter
because of a conflicting duty if the person--
(a) is a manager or a member of a
governing body of a company or body
that has a direct interest in a matter;
20 (b) is a partner, consultant, contractor,
agent or employee of a person,
company or body that has a direct
interest in a matter;
(c) is a trustee for a person who has a
25 direct interest in a matter.
(2) A person has an indirect interest in a matter
because of a conflicting duty if the person
held a position or role specified in
subsection (1) and, in that position or role,
30 dealt with the matter.
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(3) A person does not have an indirect interest
because of a conflicting duty if--
(a) the person is only an employee in the
service of the Crown or of a body
5 established by or under any Act for a
public purpose and the person has no
current or expected responsibilities as
that employee in relation to a matter;
(b) the person only holds a position in a
10 not-for-profit organisation for which
the person receives no remuneration
and the person--
(i) was appointed or nominated to
that position by the Council; or
15 (ii) was appointed to the relevant
special committee of the Council
to be a representative of the not-
for-profit organisation;
(c) the person is only a Councillor who
20 holds a position in the Municipal
Association of Victoria or in another
body that has the purpose of
representing the interests of Councils;
(d) the person only holds a position that
25 has been prescribed for the purposes of
this section.
78C Indirect interest because of receipt of an
applicable gift
(1) In this section, applicable gift means one or
30 more gifts with a total value of $200 or
more, received from a person or persons
specified in subsection (2), in the 5 years
preceding the decision or the exercise of the
power, duty or function.
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Part 4--Conflict of Interest
s. 21
(2) A person has an indirect interest in a matter
if the person has received an applicable gift,
directly or indirectly, from--
(a) a person who has a direct interest in the
5 matter; or
(b) a director, contractor, consultant, agent
or employee of a person, company or
body that the person knows has a direct
interest in a matter; or
10 (c) a person who gives the applicable gift
to the person on behalf of a person,
company or body that has a direct
interest in the matter.
78D Indirect interest as a consequence of
15 becoming an interested party
A person has an indirect interest in a matter
if the person has become an interested party
in the matter by--
(a) initiating civil proceedings in relation
20 to the matter or becoming a party to
civil proceedings in relation to the
matter; or
(b) exercising a right under the common
law, an Act or regulation to--
25 (i) lodge an appeal in relation to the
matter; or
(ii) make an objection or submission
in relation to the matter.".
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Part 4--Conflict of Interest
s. 22
22 Section 79 substituted
For section 79 of the Principal Act substitute--
"79 Disclosure of conflict of interest
(1) If a Councillor or member of a special
5 committee has a conflict of interest in a
matter which is to be, or is likely to be,
considered or discussed at a meeting of the
Council or the special committee, the
Councillor or member must--
10 (a) if he or she intends to be present at the
meeting, disclose the conflict of interest
in accordance with subsection (2);
(b) if he or she does not intend to be
present at the meeting, disclose the
15 conflict of interest in accordance with
subsection (3).
(2) A Councillor or member of a special
committee who has a conflict of interest and
is attending the meeting of the Council or
20 special committee must make a full
disclosure of that interest--
(a) by either--
(i) advising the Council or special
committee at the meeting of the
25 details required under
paragraphs (b) and (c)
immediately before the matter is
considered at the meeting; or
(ii) advising the Chief Executive
30 Officer in writing of the details
required under paragraphs (b)
and (c) before the meeting; and
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Part 4--Conflict of Interest
s. 22
(b) classifying the type of interest that has
given rise to the conflict as either--
(i) a direct interest; or
(ii) an indirect interest and specifying
5 the particular kind of indirect
interest under section 78, 78A,
78B, 78C, or 78D; and
(c) describing the nature of the interest;
and
10 (d) if the Councillor or member advised the
Chief Executive Officer of the details
under paragraph (a)(ii), the Councillor
or member must make a disclosure of
the class of interest only to the meeting
15 immediately before the matter is
considered at the meeting.
(3) A Councillor or member of a special
committee who has a conflict of interest and
will not be attending the meeting of Council
20 or special committee must make a full
disclosure of that interest to the Chief
Executive Officer or Chairperson that--
(a) is in writing; and
(b) classifies the type of interest that has
25 given rise to the conflict as either--
(i) a direct interest; or
(ii) an indirect interest and specifying
the particular kind of indirect
interest under section 78, 78A,
30 78B, 78C, or 78D; and
(c) describes the nature of the interest.
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Part 4--Conflict of Interest
s. 22
(4) If a Chairperson has been given a written
disclosure under subsection (3), he or she
must give the written disclosure to the Chief
Executive Officer.
5 (5) The Chief Executive Officer must--
(a) keep written disclosures given to him or
her under this section in a secure place
for 3 years after the date the Councillor
or member of a special committee who
10 made the disclosure ceases to be
Councillor or member of a committee;
and
(b) destroy the written disclosure when the
3 year period referred to in
15 paragraph (a) has expired.
(6) While the matter is being considered or any
vote is taken in relation to the matter, the
Councillor or member of a special committee
must--
20 (a) leave the room and notify the Mayor or
the Chairperson of the special
committee that he or she is doing so;
and
(b) remain outside the room and any
25 gallery or other area in view or hearing
of the room.
(7) The Mayor or the Chairperson of the special
committee must cause the Councillor or
member of a special committee to be notified
30 that he or she may return to the room after--
(a) consideration of the matter; and
(b) all votes on the matter.
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Part 4--Conflict of Interest
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(8) If a Councillor or member of a special
committee discloses a conflict of interest, the
Chief Executive Officer or the Chairperson
must record in the minutes of the meeting--
5 (a) the declaration of the conflict of
interest; and
(b) the classification of the interest that has
given rise to the conflict, and if the
Councillor or member has disclosed the
10 nature of the interest to the meeting, the
nature of the interest.
(9) Unless section 80 applies, a Councillor or
member of a special committee who fails to
comply with this section is guilty of an
15 offence.
Penalty: 100 penalty units.
79A Conflict of interest defence
It is a defence to a prosecution under
section 79(9), 80A(3), 80B(2) or 80C(2) if
20 the relevant person proves that he or she did
not know--
(a) that he or she had a conflict of interest
in relation to the matter; or
(b) that a matter in respect of which he or
25 she had a conflict of interest was
considered or discussed at the relevant
meeting.
79B Conflicting personal interest
(1) This section does not apply to a Councillor
30 or member of a special committee who has a
conflict of interest in the matter.
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Part 4--Conflict of Interest
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(2) If a Councillor or a member of a special
committee considers that he or she has a
personal interest in relation to a matter that is
in conflict with his or her public duty in
5 relation to the matter, the Councillor or
member may, immediately before the matter
is considered at the relevant meeting, apply
to the Council or special committee to be
exempted from voting on the matter.
10 (3) If a Councillor or member of a special
committee makes an application under
subsection (2), he or she must give reasons in
support of the application.
(4) A Council or special committee may consent
15 to an application made under subsection (2)
and must not unreasonably withhold consent.
(5) If a Council or special committee consents to
an application under subsection (4), sections
79(6), 79(7), 79(8) and 79(9) apply as if the
20 personal interest that is the subject of an
application under subsection (2) were a
conflict of interest specified under this Act.
79C Certain situations where Councillor taken
to not have a conflict of interest
25 (1) A Councillor is taken to not have a conflict
of interest for the purposes of this Division if
the matter relates to--
(a) the nomination or appointment by the
Council of the Councillor to a position
30 for which the Councillor will not be
remunerated;
(b) the election of the Mayor under
section 71 or the appointment of an
acting Mayor under section 73(3);
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(c) a decision in relation to the payment of
allowances to the Mayor or Councillors
under section 74 or 74C(2);
(d) the adoption of a policy in relation to
5 the reimbursement of expenses under
section 75A;
(e) the adoption of a Councillor Code of
Conduct under section 76C;
(f) an application to a Councillor Conduct
10 Panel or VCAT under Division 1B;
(g) an application for an exemption under
section 80;
(h) the appointment of members and
Chairpersons of special committees;
15 (i) a resolution that has the effect of
making the Councillors eligible or
ineligible for the superannuation
guarantee under taxation legislation.
(2) If a budget or revised budget to be approved
20 by a Council includes funding for a matter in
respect of which a Councillor has a conflict
of interest the Councillor is taken to not have
a conflict of interest for the purposes of
approving the budget or revised budget if--
25 (a) the Council approved the matter and the
proposed funding previously; and
(b) the Councillor disclosed the nature of
the conflict of interest under this
Division when the decision in respect
30 of the funding was originally
considered and made.
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79D Person may make submission despite
conflict of interest
(1) Subject to subsection (2), a relevant person
who has a conflict of interest in a matter and
5 who has made a written submission under
section 223 in respect of the matter, may
present his or her submission under section
223(1)(c) to the Council or committee of the
Council.
10 (2) The relevant person who has a conflict of
interest in a matter must not be at the
meeting of the Council or committee of the
Council any longer than is required for the
person to be heard in support of the person's
15 written submission.".
23 Exemption by Minister
(1) For section 80(1) of the Principal Act
substitute--
"(1) Despite section 79--
20 (a) a Council may apply, in writing, to the
Minister for an exemption of any
Councillor from any or all of the
provisions of section 79 if the Council
is of the opinion that the transaction of
25 any Council or special committee
business would be impeded because of
the number of Councillors affected by
section 79;
(b) a Chief Executive Officer of a Council
30 may apply, in writing, to the Minister,
after receiving written declarations of
conflicts of interest from a majority of
Councillors, for an exemption of those
Councillors from any or all of the
35 provisions of section 79.
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(1A) After reviewing an application received from
a Council or a Chief Executive Officer, the
Minister may require the Council or Chief
Executive Officer to provide additional
5 information in respect of the application,
including copies of the written declarations
of conflicts of interests made by Councillors
under section 79.
(1B) In considering an application made by a
10 Council or Chief Executive Officer, the
Minister must have regard to--
(a) the extent of the conflicts of interest of
the Councillors; and
(b) the public interest.".
15 (2) For section 80(2) of the Principal Act
substitute--
"(2) The Minister may, after considering an
application under subsection (1B), exempt in
writing a Councillor from any or all of the
20 provisions of section 79 for an unlimited or
specified period, subject to any conditions
the Minister thinks fit.".
24 New sections 80A, 80B and 80C inserted
After section 80 of the Principal Act insert--
25 "80A Requirements to be observed by an
assembly of Councillors
(1) At an assembly of Councillors, the Chief
Executive Officer must ensure that a written
record is kept of--
30 (a) the names of all Councillors and
members of Council staff attending;
(b) the matters considered;
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(c) any conflict of interest disclosures
made by a Councillor attending under
subsection (3).
(2) The Chief Executive Officer must ensure
5 that the written record of an assembly of
Councillors is--
(a) kept for a period of 4 years after the
date of the assembly; and
(b) made available for public inspection at
10 the offices of the Council for a period
of 12 months after the date of the
assembly.
(3) If a Councillor attending an assembly of
Councillors knows that a matter being
15 considered by the assembly is a matter that,
were the matter to be considered and decided
by Council, the Councillor would have
to disclose a conflict of interest under
section 79, the Councillor must, at the time
20 set out in subsection (4), disclose to the
assembly that he or she has a conflict of
interest and leave the assembly whilst the
matter is being considered by the assembly.
Penalty: 100 penalty units.
25 (4) A Councillor must disclose the conflict of
interest either--
(a) immediately before the matter in
relation to which the Councillor has a
conflict of interest is considered; or
30 (b) if the Councillor realises that he or she
has a conflict of interest after
consideration of the matter has begun,
as soon as the Councillor becomes
aware that he or she has a conflict of
35 interest.
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80B Members of Council staff to disclose
conflicts of interest in respect of delegated
functions
(1) This section applies to a member of Council
5 staff who has been delegated a power, duty
or function of the Council under section 98
or under another Act, either directly or
indirectly.
(2) A member of Council staff who has a
10 conflict of interest in a matter in which they
also have delegated power, duty or function
must--
(a) not exercise the power or discharge the
duty or function; and
15 (b) in the case of the Chief Executive
Officer, disclose the type of interest and
the nature of the interest to--
(i) the Mayor, in writing, as soon as
he or she becomes aware of the
20 conflict of interest in the matter;
and
(ii) the Council by no later than the
next ordinary meeting of the
Council.
25 (c) in the case of any other member of
staff, disclose the type of interest and
the nature of the interest to the Chief
Executive Officer, in writing, as soon
as he or she becomes aware of the
30 conflict of interest in the matter.
Penalty: 100 penalty units.
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80C Persons to disclose interests to Council
when providing advice
(1) This section applies to Council staff and
persons engaged under a contract to provide
5 advice or services to the Council or a special
committee.
(2) A person who is providing advice or a report
to a meeting of the Council or a special
committee, and who has a direct or indirect
10 interest in a matter to which the advice or
report relates, must disclose the type of
interest when providing the advice or report
and before the advice or report is considered
by the Council or the committee.
15 Penalty: 50 penalty units.
(3) A disclosure made by a person under
subsection (2) must be recorded in the
minutes of the meeting.
(4) A person who has made a disclosure under
20 subsection (2) must disclose the nature of the
interest if required to make that disclosure by
the Council or committee.
(5) Sections 77A to 78D apply to a person to
whom this section applies as if the person
25 were a relevant person under this Division.".
25 Register of interests
(1) In section 81(1) of the Principal Act--
(a) in the definition of nominated officer for "by
the Council" substitute "by the Chief
30 Executive Officer";
(b) in paragraph (a) of the definition of return
period for "30 June next following"
substitute "the date the ordinary return is
submitted";
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(c) in paragraph (b) of the definition of return
period for "30 June next following"
substitute "the date the current ordinary
return is submitted".
5 (2) For section 81(2) of the Principal Act
substitute--
"(2) A person who becomes a Councillor or a
member of a special committee must submit
a primary return in the prescribed form to the
10 Chief Executive Officer within--
(a) in the case of a Councillor--
(i) 30 days of election day; or
(ii) 7 days of making the oath of
office of a Councillor; or
15 (b) 30 days of becoming a member of a
special committee.".
(3) After section 81(2A) of the Principal Act insert--
"(2B) The Council must review any exemptions in
force under subsection (2A) within the
20 period of 12 months after a general
election.".
(4) In section 81(4) of the Principal Act for "return"
substitute "primary return".
(5) For section 81(5) of the Principal Act
25 substitute--
"(5) A Councillor, a member of a special
committee or a nominated officer must
submit an ordinary return in the prescribed
form to the Chief Executive Officer on--
30 (a) 30 June or within 40 days of 30 June;
and
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(b) 31 December or within 40 days of
31 December.
Penalty: 50 penalty units.".
(6) For section 81(6)(b) of the Principal Act
5 substitute--
"(b) the name or description of any company or
body in which he or she holds a beneficial
interest unless the total value of the interest
does not exceed $10 000 and the total value
10 of issued shares of the company or body
exceeds $10 million;".
(7) In section 81(7) of the Principal Act--
(a) for paragraph (b) substitute--
"(b) the name or description of any
15 company or body in which he or she
holds or has held a beneficial interest
unless the total value of the interest
does or did not exceed $10 000 and the
total value of issued shares of the
20 company or body exceeds
$10 million;";
(b) for paragraph (e) substitute--
"(e) particulars of any gift of or above the
amount or value of $200 received by
25 him or her, either directly or indirectly,
from a person other than a relative
(within the meaning of section 78) of
him or her;".
(8) After section 81(13) of the Principal Act insert--
30 "(13A) The Chief Executive Officer must maintain a
record of the names of persons who have
inspected the register of interests under
subsection (10).
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(13B) A Councillor, a member of special
committee or a nominated officer, whose
interests are recorded in the register may
inspect the recorded names of people kept
5 under subsection (13A) who have inspected
his or her personal records.".
__________________
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PART 5--MISCELLANEOUS AMENDMENTS
26 Amendment of section 28--Qualification to be a
Councillor
(1) After section 28(1A) of the Principal Act insert--
5 "(1AA) For the purposes of subsection (1A), if the
only entitlement that a person has is an
entitlement to be enrolled as a resident of the
municipal district, the person ceases to be
qualified to continue to be a Councillor at a
10 particular time if at that particular time the
person's principal place of residence is not
located within the municipal district.".
(2) For section 28(1B) of the Principal Act
substitute--
15 "(1B) A Councillor must notify the Chief
Executive Officer in writing if there has been
any change to any entitlement relating to
enrolment of the Councillor under
section 11.
20 (1C) A notification under subsection (1B) must
specify the nature of the change and the date
on which the change occurred.".
(3) In section 28(2) of the Principal Act for "30"
substitute "50".
25 (4) After section 28(3) of the Principal Act insert--
"(4) Despite subsection (3), a Councillor does not
go out of office if the Councillor has only
failed to comply with subsection (3)(b)
within the period specified in
30 subsection (2).".
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27 Amendment of section 46--Powers of a municipal
electoral tribunal
After section 46(2) of the Principal Act insert--
"(3) If a municipal electoral tribunal has declared
5 that a person declared elected was not duly
elected and has not declared another
candidate duly elected instead, an
extraordinary vacancy is caused by the
declaration of the municipal electoral
10 tribunal on the day which applies under
section 38(2A).
(4) If a municipal electoral tribunal has declared
an election for a ward to be void, an
extraordinary vacancy in each office of
15 Councillor for the ward is caused by the
declaration of the municipal electoral
tribunal on the day which applies under
section 38(2A).".
28 Amendment of section 52--Unlawful nomination
20 In section 52(2) of the Principal Act after "70(2),"
insert "70(2A),".
29 Amendment of section 63--Oath of office
In section 63(1) of the Principal Act--
(a) after "oath of office" insert ", in accordance
25 with section 100 of the Evidence Act 1958";
(b) for "I, AB swear that I will undertake"
substitute "I will undertake".
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30 New sections 66A and 66B inserted--Suspension
and leave of absences of Councillors
After section 66 of the Principal Act insert--
"66A Suspension of Councillor
5 If a Councillor is suspended under this Act,
the Councillor--
(a) ceases to be a Councillor for the term of
the suspension;
(b) is not entitled to receive a Councillor
10 allowance for the term of the
suspension unless this Act otherwise
provides;
(c) must return all Council equipment and
materials to the Council at the
15 beginning of the term of suspension.
66B Leave of absence of Councillor
(1) If a Councillor is required to take leave of
absence under this Act, the Councillor--
(a) may continue to be a Councillor but
20 must not perform the duties or
functions of a Councillor during the
period of leave;
(b) remains entitled to receive a Councillor
allowance unless this Act otherwise
25 provides;
(c) is not entitled to be reimbursed for out-
of-pocket expenses during the period of
leave;
(d) must return all Council equipment and
30 materials to the Council for the period
of leave if the Council requires.
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(2) If a Mayor is required to take a leave of
absence under this Act, the Mayor is, for the
duration of the leave, to be considered as
incapable of acting under section 73(3) and
5 subsection (1) applies to the Mayor as if the
Mayor were a Councillor only.".
31 Amendment of section 69A--Multiple extraordinary
vacancies
After section 69A(3) of the Principal Act insert--
10 "(3A) The Governor in Council may make an
Order in Council recommended by the
Minister under subsection (3).".
32 Amendment of section 71--Election of Mayor
(1) In section 71(1) of the Principal Act for "The"
15 substitute "At a meeting of the Council that is
open to the public, the".
(2) After section 71(1) of the Principal Act insert--
"(2) Before a Mayor is elected under this section,
the Council may resolve to elect a Mayor for
20 a term of 2 years.".
(3) After section 71(3)(a) of the Principal Act
insert--
"(ab) if under subsection (2), the Mayor is elected
for a term of 2 years, the next election of
25 Mayor is 2 years after the last Saturday in
November but not later than 31 December in
the second year after the election; or".
33 Amendment of section 72--Term of office
After section 72(1) of the Principal Act insert--
30 "(2) For the avoidance of doubt, the office of
Mayor becomes vacant under subsection
(1)(b) at 6 a.m. on the day of a general
election whether or not the Mayor has
completed his or her term of office as
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resolved by the Council under
section 71(1).".
34 New section 82A inserted--Council must maintain
an internet website
5 After section 82 of the Principal Act insert--
"82A Council must maintain an Internet
website
(1) A Council must maintain an Internet website.
(2) The Council must ensure that--
10 (a) any public notice required to be given
by the Council is published on the
Internet website;
(b) a copy of each local law made by the
Council and in force is available on the
15 Internet website--
(i) from the date the local law comes
into operation; and
(ii) in a consolidated and up-to-date
form;
20 (c) a list of documents of the Council that
the Council is required to make
available for public inspection under
this Act, and how a member of the
public can examine each document on
25 the list, is published on the Internet
website.
(3) A failure to comply with subsection (2) does
not--
(a) constitute a failure--
30 (i) to publish the public notice; or
(ii) to make the local law available; or
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(iii) to make the documents on the list
publicly available;
(b) affect the validity of the public notice
or the local law or the documents on the
5 list.".
35 Amendment of section 84--Special meetings
(1) After section 84(2) of the Principal Act insert--
"(2A) A Council may by a resolution call a special
meeting of the Council.
10 (2B) The resolution must specify the date and
time of the special meeting and the business
to be transacted.".
(2) In sections 84(3) and 84(4) of the Principal Act
after "notice" insert "or resolution".
15 36 Amendment of section 85--Call of the Council
In section 85(6) of the Principal Act for
"remaining" substitute "continuing to be".
37 Amendment of section 86--Special committees of
the Council
20 After section 86(5) of the Principal Act insert--
"(6) The Council must review any delegations to
a special committee in force under this
section within the period of 12 months after
a general election.
25 (7) A committee that exercises a power, or
performs a duty or function, of the Council
that has been delegated to that committee
under any Act is a special committee for the
purposes of this Act.".
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38 Sections 87 and 88 substituted--Special committee
meetings
For sections 87 and 88 of the Principal Act
substitute--
5 "87 Special committee meetings
(1) The Council must keep a register of
delegations to special committees.
(2) The Council may appoint a Chairperson for a
special committee.
10 (3) If the Council has not appointed a
Chairperson under subsection (2), the
members of a special committee must
appoint a Chairperson.
(4) If the Chairperson is not present at a meeting
15 of a special committee the members must
appoint a Chairperson for that meeting.
(5) A meeting of a special committee must be
held at a time and place determined by the
special committee.
20 (6) If the special committee has not appointed a
time and place for a meeting under
subsection (5), the Chairperson, or if the
Chairperson is incapable of doing so, the
Council, must fix the time and place of the
25 next meeting.
(7) Until approved by the Council a decision of
a special committee which does not relate to
a matter delegated to the special committee
cannot be given effect to.
30 (8) A Council may specify in the instrument of
delegation that a member of a special
committee who is a member of the public or
of Council staff does not have voting rights
on the special committee.".
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39 Amendment of section 89--Meetings to be open to
the public
(1) For section 89(4) of the Principal Act
substitute--
5 "(4) Unless subsection (4A) applies, a Council
must at least 7 days before the holding of--
(a) an ordinary council meeting; or
(b) a special council meeting; or
(c) a meeting of a special committee
10 comprised solely of Councillors--
give public notice of the meeting.
(4A) If urgent or extraordinary circumstances
prevent a Council from complying with
subsection (4), the Council must--
15 (a) give such public notice as is
practicable; and
(b) specify the urgent or extraordinary
circumstances which prevented the
Council from complying with
20 subsection (4) in the minutes.".
(2) In section 89(5) of the Principal Act after
"committee" (where first occurring) insert "that is
not comprised solely of Councillors".
40 Amendment of section 90--Voting
25 After section 90(1)(c) of the Principal Act
insert--
"(ca) voting at a meeting that is open to members
of the public must not be in secret;".
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41 Amendment of section 91--Conduct of meetings
After section 91(3) of the Principal Act insert--
"(3A) A quorum at a meeting of the Council or a
special committee must be at least a majority
5 of the members of the Council or the special
committee.".
42 Amendment of section 93A--Conduct of Council
during election period
(1) For section 93A(6)(c) of the Principal Act
10 substitute--
"(c) to enter into a contract the total value of
which exceeds whichever is the greater of--
(i) $100 000 or such higher amount as may
be fixed by Order in Council under
15 section 186(1); or
(ii) 1% of the Council's revenue from rates
and charges levied under section 158 in
the preceding financial year;".
(2) In section and 93A(6)(d) of the Principal Act after
20 "rates" insert "and charges levied under
section 158".
43 Amendment of section 94--The Chief Executive
Officer
After section 94(1) of the Principal Act insert--
25 "(1A) The Council must make a permanent
appointment to the position of Chief
Executive Officer as soon as is reasonably
practicable after a vacancy in the position
occurs.".
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44 Amendment of section 94A--Functions of the Chief
Executive Officer
(1) In section 94A(1)(c) of the Principal Act for
"Council's corporate plan" substitute "Council
5 Plan".
(2) After section 94A(1)(c) of the Principal Act
insert--
"(ca) developing, adopting and disseminating a
code of conduct for Council staff; and".
10 45 Amendment of section 95--Conduct principles
In section 95(1)(b) of the Principal Act omit "real
or apparent".
46 New section 95AA inserted--Codes of conduct for
Council staff
15 After section 95 of the Principal Act insert--
"95AA Code of conduct for Council staff
(1) A Chief Executive Officer must develop and
implement a code of conduct for Council
staff.
20 (2) A code of conduct for Council staff must
include any matters which are prescribed for
the purposes of this section.
(3) The Chief Executive Officer must ensure
that members of Council staff have access to
25 the code of conduct for Council staff.".
47 Amendment of section 95A--Employment of senior
officers to be regulated by contract
In section 95A(2)(b) of the Principal Act for "it is
signed" substitute "on which it commences".
30 48 Amendment of section 98--Delegation
In section 98(3) of the Principal Act after
"a power" insert ", duty or function".
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49 Amendment of section 125--Council Plan
(1) For section 125(1) of the Principal Act
substitute--
"(1) A Council must prepare and approve a
5 Council Plan within the period of 6 months
after each general election or by the next
30 June, whichever is later.".
(2) In section 125(6) of the Principal Act--
(a) for "Minister" (where secondly occurring)
10 substitute "Secretary";
(b) omit "for Victorian Communities".
(3) For section 125(9) of the Principal Act
substitute--
"(9) A person has a right to make a submission
15 under section 223 on a proposed adjustment
to a Council Plan which relates to a matter
specified under subsection (2)(a), (2)(b)
or (2)(c).".
50 Amendment of section 130--Adoption of budget or
20 revised budget
In section 130(6) of the Principal Act--
(a) for "Minister" (where secondly occurring)
substitute "Secretary";
(b) omit "for Victorian Communities".
25 51 Amendment of section 131--Annual report
In section 131(9) of the Principal Act--
(a) for "Minister" substitute "Secretary";
(b) omit "for Victorian Communities".
52 Amendment of section 132--Performance statement
30 Section 132(3) of the Principal Act is repealed.
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53 Amendment of section 138--Quarterly statements
In section 138(1) of the Principal Act after
"Council" insert "at a Council meeting which is
open to the public".
5 54 Amendment of section 139--Audit committee
After section 139(4) of the Principal Act insert--
"(4A) Sections 76D and 79 apply to members of an
audit committee as if they were members of
a special committee of the Council.".
10 55 Amendment of section 154--What land is rateable?
For section 154(2)(f)(i) of the Principal Act
substitute--
"(i) as a club for or a memorial to persons who
performed service or duty within the
15 meaning of section 3(1) of the Veterans Act
2005; or".
56 Amendment of section 163--Special rate and special
charge
(1) After section 163(2B) of the Principal Act
20 insert--
"(2BA) A Council must not make a declaration under
subsection (1) which has been altered from
the proposed declaration specified in the
public notice if the effect of the alteration is
25 to increase the liability of any person to pay
the special rate or special charge to be
imposed by the proposed declaration
unless--
(a) the alteration is made in response to a
30 submission or objection received by the
Council in response to the proposed
declaration; and
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(b) the increase in the liability of any
person to pay the special rate or special
charge does not exceed 10%.".
(2) After section 163(8) of the Principal Act insert--
5 "(9) For the purposes of subsections (1) and (6),
expenses does not include any expenses
incurred or anticipated to be incurred which
relate to any proceedings or anticipated
proceedings before VCAT, including an
10 application for review under section 185 or
an application for a declaration under
section 185AA.".
57 Amendment of section 163B--Objection process
relating to certain special rates and charges
15 In section 163B(6) of the Principal Act for
"the proposed declaration" substitute "a
declaration".
58 Amendment of section 166--Variation of special
rate or special charge
20 In section 166(3)(b) of the Principal Act for
"a material variation" substitute "an increase
equal to or greater than 10%".
59 Amendment of section 167--Payment of rates and
charges
25 (1) In section 167(3) of the Principal Act for "14 days
after the date of issue of the notice" substitute
"28 days after the date of issue of a notice".
(2) For section 167(4) of the Principal Act
substitute--
30 "(4) A person who is liable to pay a special rate
or special charge must pay the special rate or
special charge--
(a) as a lump sum; or
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(b) if the Council has provided an
instalment plan and the person has
elected to pay the special rate or special
charge in accordance with the
5 instalment plan, in accordance with the
instalment plan.
(5) If the performance of the function or the
exercise of the power in respect of which a
special rate or special charge is to be levied
10 relates substantially to capital works, the
Council must provide an instalment plan in
accordance with subsection (6).
(6) An instalment plan--
(a) must provide for instalments to be paid
15 over a period of at least 4 years;
(b) may include in the amount of an
instalment a component for reasonable
interest costs the total of which must
not exceed the estimated borrowing
20 costs of the Council in respect of the
performance of the function or the
exercise of the power in respect of
which the special rate or special charge
is to be levied by more than 1%.".
25 60 Amendment of section 169--Rebates and
concessions
In section 169(1C) of the Principal Act after
"applies" insert "and subsection (1B)(b) does not
apply".
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Part 5--Miscellaneous Amendments
s. 61
61 Amendment of section 183--Review of differential
rating by Victorian Civil and Administrative
Tribunal
(1) Insert the following heading to section 183 of the
5 Principal Act--
"Review of differential rating by VCAT".
(2) In section 183(1) of the Principal Act, for "the
Victorian Civil and Administrative Tribunal"
substitute "VCAT".
10 62 Amendment of section 185--Application to
Victorian Civil and Administrative Tribunal
(1) Insert the following heading to section 185 of the
Principal Act--
"Application to VCAT".
15 (2) In section 185(1) of the Principal Act, for "the
Victorian Civil and Administrative Tribunal"
substitute "VCAT".
(3) In section 185(3) of the Principal Act, for "the
Tribunal" substitute "VCAT".
20 (4) In section 185(4) of the Principal Act, for "the
Tribunal" substitute "VCAT".
63 Amendment of section 185AA--Application for
declaration
(1) In section 185AA(1) of the Principal Act, for "the
25 Victorian Civil and Administrative Tribunal"
substitute "VCAT".
(2) In section 185AA(2) of the Principal Act, for "the
Tribunal" substitute "VCAT".
(3) In section 185AA(3) of the Principal Act--
30 (a) for "The Tribunal's" substitute "VCAT's";
(b) for "the Tribunal" substitute "VCAT".
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64 Amendment of section 185AB--Matters Tribunal
must take into account
(1) Insert the following heading to section 185AB of
the Principal Act--
5 "Matters VCAT must take into account".
(2) In section 185AB of the Principal Act, for "the
Tribunal" substitute "VCAT".
65 Amendment of section 185B--Minister may give
directions concerning rates and charges
10 (1) For section 185B(4) of the Principal Act
substitute--
"(4) An Order does not have effect in respect of a
financial year unless it is published in the
Government Gazette at least 1 month before
15 the start of that financial year.".
(2) Section 185B(9) of the Principal Act is repealed.
66 Amendment of section 186--Restriction on power to
enter into contracts
After section 186(5) of the Principal Act insert--
20 "(5A) This section does not apply in respect of a
contract if--
(a) the contract is a novated contract; and
(b) the original contract was entered into in
accordance with this section; and
25 (c) the Council has undertaken a due
diligence in respect the new party to the
contract.".
67 New section 186A inserted--Procurement policy
After section 186 of the Principal Act insert--
30 "186A Procurement policy
(1) A Council must prepare and approve a
procurement policy.
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(2) A Council must within 12 months after the
commencement of section 67 of the Local
Government Amendment (Councillor
Conduct and Other Matters) Act 2008
5 prepare and approve a procurement policy.
(3) A procurement policy must include any
matters, practices or procedures which are
prescribed for the purposes of this section.
(4) A Council must have regard to guidelines
10 made under subsection (5) in preparing a
procurement policy.
(5) The Minister may make guidelines with
respect to the form or content of a
procurement policy.
15 (6) Guidelines made under subsection (5) must
be published in the Government Gazette.
(7) At least once in each financial year, a
Council must review the current procurement
policy and may, in accordance with this
20 section, amend the procurement policy.
(8) A copy of the current procurement policy
must be available for inspection by the
public--
(a) at the Council office; and
25 (b) on the Council's Internet website.
(9) A Council must comply with its procurement
policy.
(10) In this section procurement policy means the
principles, processes and procedures that will
30 apply to all purchases of goods, services and
works by the Council.".
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Part 5--Miscellaneous Amendments
s. 68
68 Amendment of section 189--Restriction on power to
sell land
In section 189(4) of the Principal Act after
"discontinued" insert "and which the Council has
5 resolved to sell".
69 Amendment of section 193--Entrepreneurial
powers
In sections 193(5C)(a) and 193(5C)(b) of the
Principal Act after "rates" insert "and charges
10 levied under section 158".
70 Amendment of section 196--Regional libraries
After section 196(7) of the Principal Act insert--
"(7A) For the purposes of the application of
sections 75 to 81 by subsection (7)(a), a
15 member of the governing body of a regional
library, who is a Councillor that was
appointed to the governing body by the
Council, is taken to not have a conflict of
interest in a matter only because he or she is
20 a Councillor.".
71 Repeal of section 197E--Offence to fail to comply
with provisions
Section 197E of the Principal Act is repealed.
72 Amendment of section 213--Access of
25 Commissioner to places and documents
At the foot of section 213(4) of the Principal Act
insert--
"Penalty: 50 penalty units".
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Part 5--Miscellaneous Amendments
s. 73
73 Amendment of section 219--Suspension of
Councillors
(1) For section 219(9) of the Principal Act
substitute--
5 "(9) On the expiry of the Order in Council, the
Councillors resume office and the
administrator goes out of office unless--
(a) the Minister has fixed the date on
which a general election for the Council
10 is to be held and has published notice of
that date in the Government Gazette; or
(b) a Bill to dismiss the Council has been
introduced into the Parliament.
(9A) The date fixed for the holding of the general
15 election must be a date that occurs within the
period of 100 days after the date on which
the Order in Council expires.
(9B) If the Bill to dismiss the Council has not
become an Act which is in operation within
20 the period of 100 days after the date on
which the Order in Council expires, the
Councillors resume office and the
administrator goes out of office immediately
after the end of that period.".
25 (2) In section 219(10) of the Principal Act for
"subsection (9)(b)" substitute "subsection (9)(a)".
74 Section 222 substituted--Right of inspection
For section 222 of the Principal Act substitute--
"222 Right of inspection
30 (1) A Council must ensure that a prescribed
document is available for inspection at all
reasonable times.
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Part 5--Miscellaneous Amendments
s. 75
(2) A person is entitled upon payment of the
relevant fee to--
(a) inspect a prescribed document; and
(b) make a copy of a prescribed document.
5 (3) A Council may fix reasonable fees for the
inspection and copying of a prescribed
document.".
75 Amendment of section 223--Right to make
submission
10 (1) For section 223(1) of the Principal Act
substitute--
"(1) The following provisions apply if a person is
given a right to make a submission to the
Council under this section (whether under
15 this or any other Act)--
(a) the Council must publish a public
notice--
(i) specifying the matter in respect of
which the right to make a
20 submission applies;
(ii) containing the prescribed details
in respect of that matter;
(iii) specifying the date by which
submissions are to be submitted,
25 being a date which is not less than
28 days after the date on which
the public notice is published;
(iv) stating that a person making a
submission is entitled to request in
30 the submission that the person
wishes to appear in person, or to
be represented by a person
specified in the submission, at a
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Part 5--Miscellaneous Amendments
s. 75
meeting to be heard in support of
the submission;
(b) if a request has been made under
paragraph (a)(iv), the Council must--
5 (i) provide the person with the
opportunity to be heard in support
of the submission in accordance
with the request at a meeting of
the Council or of a committee
10 determined by the Council;
(ii) fix the day, time and place of the
meeting;
(iii) give reasonable notice of the day,
time and place of the meeting to
15 each person who made a request;
(c) if the committee determined under
paragraph (b)(i) is not responsible for
making the decision in respect of which
the submissions have been made, the
20 committee must provide a report on its
proceedings, including a summary of
hearings, to the Council or the special
committee which is responsible for
making the decision;
25 (d) the Council or special committee
responsible for making the decision
must--
(i) consider all the submissions made
under this section and any report
30 made under paragraph (c);
(ii) notify in writing, each person who
has made a separate submission,
and in the case of a submission
made on behalf of a number of
35 persons, one of those persons, of
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2008
Part 5--Miscellaneous Amendments
s. 76
the decision and the reasons for
that decision.".
(2) After section 223(3) of the Principal Act insert--
"(4) A member of a committee specified in
5 subsection (1)(b)(i) is subject to section 79 as
if that member were a member of a special
committee.".
76 Amendment of section 223A--Appointment of
inspectors of municipal administration
10 In section 223A(4) of the Principal Act for
"Minister" substitute "Secretary".
77 Amendment of section 223B--Powers of inspectors
of municipal administration
In section 223B(4) of the Principal Act for
15 "subsection (1)" substitute "subsection (2)".
78 Amendment of section 228--Indemnity provision
In section 228(1) of the Principal Act omit "to the
Department for Victorian Communities"
(wherever occurring).
20 79 Amendment of section 232--Proceedings
In section 232(1) of the Principal Act omit "to the
Department for Victorian Communities".
80 Amendment of section 236--Power of delegation
In section 236(2) of the Principal Act omit "to the
25 Department for Victorian Communities"
(wherever occurring).
81 Amendment of section 237--Council records and
information
In section 237(1) of the Principal Act omit "to the
30 Department for Victorian Communities"
(wherever occurring).
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2008
Part 5--Miscellaneous Amendments
s. 82
82 Amendment of section 240A--Imposition of
surcharge
(1) For section 240A(1) of the Principal Act
substitute--
5 "(1) This section applies if section 76 or 228 do
not apply and the Secretary considers that--
(a) any expenditure has been incurred in
contravention of any Act, regulation or
local law; or
10 (b) any deficiency or loss has been incurred
by the misconduct of a Councillor or a
member of the Council staff; or
(c) any money which should have been
brought into account has not been
15 brought into account.".
(2) In section 240A(2) of the Principal Act for
"Minister" substitute "Secretary".
(3) In section 240A(4) of the Principal Act for
"Minister" substitute "Secretary" (wherever
20 occurring).
(4) In section 240A(5) of the Principal Act--
(a) for "Minister" substitute "Secretary";
(b) for "the Victorian Civil and Administrative
Tribunal" substitute "VCAT".
25 83 Repeal of section 242A--Supreme Court--
limitation of jurisdiction
Section 242A of the Principal Act is repealed.
84 Amendment of Schedule 2
(1) In clause 9(1) of Schedule 2 to the Principal Act
30 for "before 4 p.m." substitute "before 12 noon".
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2008
Part 5--Miscellaneous Amendments
s. 84
(2) In clause 17(1)(b)(ii) of Schedule 2 to the
Principal Act for "manner; or" substitute
"manner--".
__________________
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Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 6--Amendments to the City of Melbourne Act 2001
s. 85
PART 6--AMENDMENTS TO THE CITY OF MELBOURNE
ACT 2001
See: 85 Application of certain provisions of the Local
Act No.
5/2001. Government Act 1989
Reprint No. 1
5 as at In section 5(1) of the City of Melbourne Act
1 July 2007
and
2001--
amending
Act No. (a) after "73," insert "73A, 73B,";
35/2008.
LawToday: (b) after "74B" insert ", 74C".
www.
legislation.
vic.gov.au
86 Deputy Lord Mayor
10 (1) For section 22(1)(b) of the City of Melbourne
Act 2001 substitute--
"(b) the Lord Mayor is suspended or required to
take leave of absence under the Local
Government Act 1989.".
15 (2) After section 22(1) of the City of Melbourne Act
2001 insert--
"(1A) The Deputy Lord Mayor must also act as the
Lord Mayor during any period in which the
Lord Mayor is absent from the City of
20 Melbourne or is otherwise unable to carry
out the duties of office.".
87 Term of office of Lord Mayor and Deputy Lord
Mayor
(1) In section 23(3) of the City of Melbourne Act
25 2001--
(a) in paragraph (c) for "Court." substitute
"Court; or";
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2008
Part 6--Amendments to the City of Melbourne Act 2001
s. 88
(b) after paragraph (c) insert--
"(d) is disqualified from holding the office
following a finding made by VCAT of
serious misconduct or gross misconduct
5 by the Lord Mayor or Deputy Lord
Mayor under section 81K of the Local
Government Act 1989.".
(2) After section 23(3) of the City of Melbourne Act
2001 insert--
10 "(4) If VCAT makes a finding of serious
misconduct or gross misconduct by the Lord
Mayor of the City of Melbourne under
section 81K of the Local Government Act
1989, the Lord Mayor is disqualified from
15 holding the office of Lord Mayor from the
date of the finding and for the remainder of
the term of office unless VCAT otherwise
orders.
(5) If VCAT makes a finding of serious
20 misconduct or gross misconduct by the
Deputy Lord Mayor of the City of
Melbourne under section 81K of the Local
Government Act 1989, the Deputy Lord
Mayor is disqualified from holding the office
25 of Deputy Lord Mayor from the date of the
finding and for the remainder of the term of
office unless VCAT otherwise orders.".
88 Filling of Vacancies
In section 24(1) of the City of Melbourne Act
30 2001 for "Chief Executive Officer that is not later
than the 100th day after the vacancy arises"
substitute "Minister under section 38 of the Local
Government Act 1989".
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2008
Part 6--Amendments to the City of Melbourne Act 2001
s. 89
89 Appointment of acting Deputy Lord Mayor
In section 25(1) of the City of Melbourne Act
2001 after "vacant" insert "or the Deputy Lord
Mayor is acting as Lord Mayor under
5 section 22(1)".
90 New section 26A inserted
After section 26 of the City of Melbourne Act
2001 insert--
"26A Allowance reviews by Minister
10 (1) The Minister must, at least once every year,
review the amounts of Councillor, Lord
Mayoral and Deputy Lord Mayoral
allowances.
(2) The Minister must have regard to
15 movements in the levels of remuneration of
executives within the meaning of the Public
Administration Act 2004 when reviewing
the amounts of the Councillor, Lord Mayoral
and Deputy Lord Mayoral allowances under
20 subsection (1).
(3) If a review conducted by the Minister under
this section results in a finding that
Councillor, Lord Mayoral and Deputy Lord
Mayoral allowances require alteration, the
25 Minister must specify by notice in the
Government Gazette the new allowance
amounts.".
91 General provisions concerning allowances
(1) Before section 27(1) of the City of Melbourne
30 Act 2001 insert--
"(1A) Subject to subsection (1), the Council must
pay a Councillor, the Lord Mayoral and
Deputy Lord Mayoral allowances as
specified in the most recent of--
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2008
Part 6--Amendments to the City of Melbourne Act 2001
s. 91
(a) an Order in Council made under
section 26; or
(b) a Minister's notice made under
section 26A.".
5 (2) After section 27(2) of the City of Melbourne Act
2001 insert--
"(3) A person elected to be Lord Mayor, Deputy
Lord Mayor or a Councillor is entitled to
receive the appropriate allowance for that
10 office from the date the person takes the oath
of office under section 63 of the Local
Government Act 1989.
(4) A person who becomes Lord Mayor, acting
Lord Mayor or Deputy Lord Mayor as a
15 result of--
(a) a resolution by the Council under
section 24(3)(a) that an election not be
held to fill the vacancy of Lord Mayor;
or
20 (b) an appointment by the Council under
section 24(3)(b) to fill the vacancy of
Deputy Lord Mayor; or
(c) a circumstance specified by
section 22(1)--
25 the Lord Mayor, acting Lord Mayor or
Deputy Lord Mayor is entitled to receive the
appropriate allowance for that office from
the date of the resolution, appointment or
commencement of the circumstance.".
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2008
Part 6--Amendments to the City of Melbourne Act 2001
s. 92
92 New section 27AA inserted
After section 27 of the City of Melbourne Act
2001 insert--
"27AA Councillor taken to not have conflict of
5 interest for purposes Division 1A of Part 4
of the Local Government Act 1989
For the purposes of Division 1A of Part 4 of
the Local Government Act 1989, a
Councillor is taken to not have a conflict of
10 interest if the matter relates to--
(a) making an appointment; or
(b) passing a resolution; or
(c) delegating by instrument a power, duty
or function--
15 under this Part.".
__________________
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2008
Part 7--Amendments to the Victorian Civil and Administrative Tribunal Act
s. 93
1998
PART 7--AMENDMENTS TO THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998
93 Amendments to the Victorian Civil and See:
Act No.
Administrative Tribunal Act 1998 53/1998.
Reprint No. 5
5 After Part 13A of Schedule 1 to the Victorian as at
1 April 2007
Civil and Administrative Tribunal Act 1998 and
insert-- amending
Act Nos
18/2003,
"PART 13B--LOCAL GOVERNMENT ACT 1989 97/2005,
16/2006,
23/2006,
46E Constitution of Tribunal 24/2006,
48/2006,
10 (1) The Tribunal is to be constituted for the 69/2006,
purposes of proceedings under sections 30, 24/2007,
26/2007 and
81D, 81E and 81J(1)(b) of the Local 2/2008.
Government Act 1989 by at least LawToday:
www.
2 members-- legislation.
vic.gov.au
15 (a) one of whom is a senior member and
has been admitted to legal practice;
(b) one of whom is a person who has at
least 5 years experience in local
government governance matters.
20 (2) The Tribunal is to be constituted for the
purposes of proceedings for review of a
decision made by a Councillor Conduct
Panel under section 81P of the Local
Government Act 1989 by a senior member
25 who has been admitted to legal practice
sitting alone.
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Part 7--Amendments to the Victorian Civil and Administrative Tribunal Act
s. 93
1998
46F Costs
Despite section 109, the Council is to bear
the costs of the proceedings unless--
(a) the Secretary is the applicant; or
5 (b) VCAT otherwise orders.".
__________________
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Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Part 8--Repeal of Amending Act
s. 94
PART 8--REPEAL OF AMENDING ACT
94 Repeal of amending Act
This Act is repealed on 1 January 2010.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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Local Government Amendment (Councillor Conduct and Other Matters) Bill
2008
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561191B.I-9/9/2008 100 BILL LA INTRODUCTION 9/9/2008
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