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LOCAL GOVERNMENT AMENDMENT (COUNCILLOR CONDUCT AND OTHER MATTERS) BILL 2008

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

 

 

Clause Page 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

 

 

Clause Page 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

 

 

Clause Page 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

 

 

Clause Page 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. 561191B.I-9/9/2008 16 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 17 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 17 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. 561191B.I-9/9/2008 18 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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; 561191B.I-9/9/2008 19 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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 561191B.I-9/9/2008 20 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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; 561191B.I-9/9/2008 21 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 (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. 561191B.I-9/9/2008 22 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 (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. 561191B.I-9/9/2008 23 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 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; 561191B.I-9/9/2008 24 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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; 561191B.I-9/9/2008 25 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 (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 561191B.I-9/9/2008 26 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 27 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 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; 561191B.I-9/9/2008 28 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 (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 561191B.I-9/9/2008 29 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 (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 561191B.I-9/9/2008 30 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 31 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 (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. 561191B.I-9/9/2008 32 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 18 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 561191B.I-9/9/2008 33 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 19 (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); 561191B.I-9/9/2008 34 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 19 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. 561191B.I-9/9/2008 35 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 3--Councillor Conduct Amendments s. 19 (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 561191B.I-9/9/2008 36 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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. 561191B.I-9/9/2008 37 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 38 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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 561191B.I-9/9/2008 39 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 40 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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 561191B.I-9/9/2008 41 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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. 561191B.I-9/9/2008 42 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 43 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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.". __________________". __________________ 561191B.I-9/9/2008 44 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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; 561191B.I-9/9/2008 45 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 46 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 47 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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); 561191B.I-9/9/2008 48 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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 561191B.I-9/9/2008 49 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 50 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 51 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 21 (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. 561191B.I-9/9/2008 52 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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.". 561191B.I-9/9/2008 53 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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 561191B.I-9/9/2008 54 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 55 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 56 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 22 (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. 561191B.I-9/9/2008 57 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 22 (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); 561191B.I-9/9/2008 58 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 22 (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. 561191B.I-9/9/2008 59 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 23 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. 561191B.I-9/9/2008 60 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 24 (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; 561191B.I-9/9/2008 61 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 24 (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. 561191B.I-9/9/2008 62 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 24 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. 561191B.I-9/9/2008 63 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 25 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"; 561191B.I-9/9/2008 64 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 25 (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 561191B.I-9/9/2008 65 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 25 (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). 561191B.I-9/9/2008 66 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 4--Conflict of Interest s. 25 (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.". __________________ 561191B.I-9/9/2008 67 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 26 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).". 561191B.I-9/9/2008 68 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 27 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". 561191B.I-9/9/2008 69 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 30 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. 561191B.I-9/9/2008 70 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 31 (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 561191B.I-9/9/2008 71 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 34 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 561191B.I-9/9/2008 72 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 35 (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.". 561191B.I-9/9/2008 73 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 38 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.". 561191B.I-9/9/2008 74 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 39 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;". 561191B.I-9/9/2008 75 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 41 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.". 561191B.I-9/9/2008 76 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 44 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". 561191B.I-9/9/2008 77 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 49 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. 561191B.I-9/9/2008 78 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 53 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 561191B.I-9/9/2008 79 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 57 (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 561191B.I-9/9/2008 80 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 60 (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". 561191B.I-9/9/2008 81 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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". 561191B.I-9/9/2008 82 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 64 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. 561191B.I-9/9/2008 83 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 Part 5--Miscellaneous Amendments s. 67 (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.". 561191B.I-9/9/2008 84 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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". 561191B.I-9/9/2008 85 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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. 561191B.I-9/9/2008 86 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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 561191B.I-9/9/2008 87 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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 561191B.I-9/9/2008 88 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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). 561191B.I-9/9/2008 89 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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". 561191B.I-9/9/2008 90 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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--". __________________ 561191B.I-9/9/2008 91 BILL LA INTRODUCTION 9/9/2008

 

 

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"; 561191B.I-9/9/2008 92 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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". 561191B.I-9/9/2008 93 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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-- 561191B.I-9/9/2008 94 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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.". 561191B.I-9/9/2008 95 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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.". __________________ 561191B.I-9/9/2008 96 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 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. 561191B.I-9/9/2008 97 BILL LA INTRODUCTION 9/9/2008

 

 

Local Government Amendment (Councillor Conduct and Other Matters) Bill 2008 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.". __________________ 561191B.I-9/9/2008 98 BILL LA INTRODUCTION 9/9/2008

 

 

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). 561191B.I-9/9/2008 99 BILL LA INTRODUCTION 9/9/2008

 

 

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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