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Recent changes to legislation – implementation of a simpler, more streamlined system for making, investigating and determining complaints about Councillor conduct in Queensland

Purpose

The purpose of this bulletin is to inform Local Governments of legislative amendments to implement the Government’s response to the Independent Councillor Complaints Review Panel’s Report Councillor Complaints Review: A fair, effective and efficient framework (the Councillor Complaints Report) to provide a simpler, more streamlined system for making, investigating and determining complaints about Councillor conduct in Queensland.

The new Councillor complaints system is anticipated to commence in December 2018.

Background

The Independent Councillor Complaints Review was initiated in response to concerns raised about the effectiveness of the then framework, including the role of Local Government Chief Executive Officers (CEOs) in assessing complaints, the inability to seek a review of decisions and the need to better ensure natural justice for all parties.

The review examined the Councillor complaints provisions under the Local Government Act 2009 (LGA) and the City of Brisbane Act 2010. The Councillor Complaints Report made 60 recommendations for change. On 20 July 2017, the then Minister for Local Government and Minister for Aboriginal and Torres Strait Islander Partnerships tabled the Councillor Complaints Report and the Government’s response in Parliament. The Government’s response supported, partially supported or supported in principle 50 of the recommendations.

Details

The Local Government (Councillor Complaints) and Other Legislation Amendment Act 2018 (the Amendment Act) was Assented to on 21 May 2018 and amends the LGA and the Public Service Act 2008 to deliver a more independent, transparent, streamlined and fairer system for investigating and dealing with Local Government Councillor conduct in Queensland.

The new Councillor Complaints system does not apply to the Brisbane City Council.

Key changes under the Amendment Act are as follows:

Independent Assessor

  • The Independent Assessor and the Office of the Independent Assessor are established and will have responsibility for investigating and dealing with the alleged or suspected inappropriate conduct, misconduct or corrupt conduct (when referred to the Independent Assessor by the Crime and Corruption Commission (CCC)) of Councillors.
  • The Independent Assessor will be a front door for Councillor complaints and Councillor conduct suspected to be inappropriate conduct or misconduct. After investigating the conduct of a Councillor, the Independent Assessor may:
    • dismiss the complaint (new section 150X)
    • refer suspected inappropriate conduct to the Local Government to deal with (new section 150AC)
    • make an application to the Councillor Conduct Tribunal where the conduct may be misconduct (new section 150AJ)
    • take no further action (new section 150Y).
  • The functions of the Independent Assessor also include providing advice, training and information about dealing with alleged or suspected inappropriate conduct, misconduct or corrupt conduct.

Types of conduct

diagram of the types of complaints

Unsuitable meeting conduct

  • New section 150H defines unsuitable meeting conduct as the conduct of a Councillor that happens during a Local Government meeting and contravenes a behavioural standard.
  • A behavioural standard means a standard of behaviour for Councillors set out in the approved Code of Conduct (new section 150C).
  • New section 150I provides that if, at a Local Government meeting, the Chairperson of the meeting reasonably believes a Councillor is engaging in unsuitable meeting conduct, the Chairperson may make 1 or more of the following orders:
    • an order reprimanding the Councillor
    • an order requiring the Councillor to leave the place at which the meeting is being held and stay away from the place for the rest of the meeting
    • if the Councillor fails to comply with an order to leave and stay away from the place—an order that the Councillor be removed from the place.
  • Unsuitable meeting conduct becomes inappropriate conduct if the conduct of a Councillor contravenes an order of the Chairperson of a Local Government meeting for the Councillor to leave and stay away from the place at which the meeting is being held; or it is part of a course of conduct at Local Government meetings that lead to orders for the Councillor’s unsuitable meeting conduct being made on 3 occasions within a period of 1 year. In such instances, the Local Government is not required to notify the Independent Assessor about the conduct and may deal with the conduct under new section 150AG.

Inappropriate conduct

  • New section 150K defines inappropriate conduct which includes conduct that contravenes a behavioural standard or a policy, procedure or resolution of the Local Government.
  • New section 150W provides that if the Independent Assessor reasonably suspects a Councillor’s conduct is inappropriate conduct, the Independent Assessor may decide to refer the suspected inappropriate conduct to the relevant Local Government to deal with.
  • As part of the referral to the Local Government under new section 150AC, the Independent Assessor may give a recommendation to the Local Government about how the Local Government may investigate or deal with the conduct including, for example, whether the Local Government should refer the conduct to another entity for consideration.
  • New section 150AE requires each Local Government to adopt, by resolution, an investigation policy about how to deal with the suspected inappropriate conduct of Councillors referred to the Local Government by the Independent Assessor. The policy must be published on the Local Government’s website.
  • Under new section 150AF a Local Government must investigate the suspected inappropriate conduct of a Councillor in a way that is consistent with any recommendation of the Independent Assessor and its investigation policy. If the Local Government decides to investigate the conduct in a different way the decision must be made by resolution which states the decision and the reasons for the decision.
  • After conducting an investigation, a Local Government must decide whether or not a Councillor has engaged in inappropriate conduct and if the Councillor has engaged in inappropriate conduct—what action the Local Government will take to discipline the Councillor (new section 150AG).
  • A Local Government may delegate the power to make a decision about a Councillor’s conduct under new section 150AG to the mayor or a standing committee of the Local Government (amended section 257).
  • New section 150AH prescribes the penalties a Local Government may impose as a result of a finding of inappropriate conduct.

Misconduct

  • The definition of misconduct is clarified and consolidated at new section 150L.
  • If the Independent Assessor is reasonably satisfied that a Councillor has engaged in misconduct, the Independent Assessor may apply to the Councillor Conduct Tribunal to hear and determine the application (new sections 150AI and 150AJ).
  • The Independent Assessor is a party to the hearing and bears the onus of proof to prove the Councillor engaged in misconduct (new section 150AN).
  • New section 150AQ provides that after conducting the hearing, the Councillor Conduct Tribunal must decide whether or not the Councillor has engaged in misconduct and if the Councillor has engaged in misconduct—what action the Tribunal will take to discipline the Councillor.
  • New section 150AR prescribes the penalties the Councillor Conduct Tribunal may impose as a result of a finding of misconduct.

Corrupt conduct

  • The new provisions provide that the Independent Assessor is the public official responsible for dealing with a complaint about the corrupt conduct of a Councillor for the purposes of consultation about, or a referral of, the complaint under the Crime and Corruption Act 2001.

Councillor Conduct Tribunal and Local Government Remuneration Commission

  • The new Councillor Conduct Tribunal is established to hear and determine the alleged misconduct of Councillors. The Tribunal will replace the current Local Government Remuneration and Discipline Tribunal and Regional Conduct Review Panels.
  • Another function of the Councillor Conduct Tribunal is to investigate, at the request of a Local Government, the suspected inappropriate conduct of a Councillor and to make recommendations to the Local Government about dealing with the conduct (new section 150DL).
  • Local Governments must pay the costs of the Councillor Conduct Tribunal for conducting hearings about the alleged misconduct of Councillors or investigating suspected inappropriate conduct of a Councillor at the request of a Local Government (new section 150DU).
  • The remuneration functions of the current Local Government Remuneration and Discipline Tribunal will be carried out by the new Local Government Remuneration Commission.

What appeal rights will Councillors have?

  • A Councillor who is unsatisfied with a decision of the Councillor Conduct Tribunal may apply to the Queensland Civil and Administrative Tribunal for a review of the decision.

New Offences

  • Strengthened offences will support the new Councillor complaints system, including providing protection from reprisal for Local Government employees and Councillors who make complaints against Councillors, discouraging frivolous and improper complaints and ensuring confidentiality of investigations.

What new documentation will Council need?

  • All Councillors will be subject to a Code of Conduct to be made by the Minister for Local Government and approved by regulation.
  • Local Governments must adopt formal meeting procedures which state how the Chairperson of a Local Government meeting may deal with a Councillor’s unsuitable meeting conduct; and how suspected inappropriate conduct referred to the Local Government by the Independent Assessor must be dealt with at a meeting (new sections 150F and 150G).
  • Local Governments must adopt an investigation policy about how the Local Government deals with the suspected inappropriate conduct of Councillors referred by the Independent Assessor (new section 150AE).
  • Local Governments must keep an up-to-date Councillor Conduct Register recording particular orders and decisions (new section 150DX).

Implementation Support

The Local Government (Councillor Complaints) and Other Legislation Amendment Act 2018 and Explanatory Notes are available on the Queensland Legislation website:

The new Councillor complaints system is anticipated to commence in December 2018. The Department of Local Government, Racing and Multicultural Affairs will implement an information and training program to ensure that all Councillors and CEOs thoroughly understand the new Councillor complaints processes ahead of its commencement.

The training will take place from July to October 2018 and will take the form of online and face-to-face training.

The Department will also publish model meeting procedures to ensure the standards of behaviour in the Code of Conduct are reflected in the conduct of Local Government meetings, and an example investigation policy for dealing with complaints about the alleged inappropriate conduct of Councillors.

Further Information

Any further enquiries on this matter should be addressed to:

Mr Daniel Westall
Manager Governance
Department of Local Government, Racing and Multicultural Affairs
P: (07) 3452 6713
E: This email address is being protected from spambots. You need JavaScript enabled to view it.