Circulars

What’s new or changing

• Amendments to the Local Government Act 1993 made by the Local Government Amendment (Councillor Misconduct and Poor Performance) Act 2015 commenced on 13 November 2015.

What this will mean for your Council

Councillors and General Managers must note the following:

• As of the commencement date, Councillors who have previously been suspended on two or more occasions will be automatically disqualified from holding office in a Council for 5 years if they are suspended on a further occasion. The Office has written directly to Councillors who have been suspended on two or more occasions to inform them of this change.
• The definition of “misconduct” has been expanded to include acts or omissions by Councillors that are intended to prevent the proper or effective functioning of a council or a committee of a Council (e.g. by disrupting decision making). Penalties for Councillor misconduct include suspension and disqualification from holding office.
• Councillors will no longer be permitted to participate in the consideration of the making, amendment, alteration or repeal of an environmental planning instrument applying to the whole or a significant part of their local government area they have pecuniary interests in unless:
  • the only interests affected by the changes are the interests they or their relatives have in their principal places of residence; and
  • they have made a special disclosure of the affected interests.
• This amendment is complemented by an amendment to clause 4.29 of the Model Code of Conduct for Local Councils in NSW which also commenced on 13 November 2015. The amendment will mean that councillors with significant non-pecuniary conflicts of interests in the making, amendment, alteration or repeal of an environmental planning instrument applying to the whole or a significant part of their local government area will no longer be permitted to participate in consideration of those matters unless:
  • the only interests affected by the changes relate to the interest a person (e.g. a close friend or affiliate of a Councillor) has in their principal place of residence; and
  • the Councillor has disclosed the affected interests.

Complaints coordinators must note the following:

• Councils must amend their adopted codes of conduct as soon as possible to reflect the amendment to clause 4.29 referred to above. The amended Model Code of Conduct is available on the Office of Local Government’s website at www.olg.nsw.gov.au.
• Notice is no longer required of a motion to censure a Councillor for misconduct under section 440G. Under the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW, Councils can only formally censure a Councillor for misconduct where this is recommended in a report by an independent investigator. This will be reported to the Council under cover of a staff report by a Council’s complaints coordinator.

Other key changes

• The amendments are also designed to:
  • ensure a faster but fair investigation process for Councillor misconduct;
  • remove impediments to effective action in response to serious corrupt conduct;
  • maximise the effectiveness of Performance Improvement Orders issued by the Minister for Local Government to a Council; and
  • more effectively address Council maladministration.

Where to go for further information

• For more information on the amendments to the Act, see the attachment to this Circular.
• An updated version of the Model Code of Conduct for Local Councils in NSW has been published on the Office of Local Government’s website at www.olg.nsw.gov.au.
• Contact the Office’s Council Governance Team on 4428 4100.

Tim Hurst
Acting Chief Executive