• Declaring the office of Mayor or Deputy Mayor to be vacant

  The Bill amends s 23 of the Act by:

  • Removing the limitation on ousting a Mayor or Deputy Mayor to one who is elected for a two-year term:
    • Now, any Mayor or Deputy Mayor will be able to be removed by Resolution of the council
       
  • Prescribing a detailed process for ousting a Mayor or Deputy Mayor, including:
    • Requiring the notice of motion to specify the reasons for the proposed ousting
    • Giving the Mayor or Deputy Mayor the opportunity to provide a written response to the notice of motion within 7 days of receiving it
    • The manner in which the meeting will be chaired while the notice of motion is dealt with.

  So, the Bill will allow any Mayor or Deputy Mayor to be ousted by a Resolution of the council – not just those elected for a two-year term.

• Candidacy in State and Federal elections

  Councils sometimes grapple with what arrangements should be put in place for Councillors who have nominated as candidates in State and Federal elections. The most common issue is whether the Councillors must, or should, take a leave of absence for the duration of their candidacy.

  The Bill answers this question by:

  • Introducing a concept of a ‘candidate leave of absence', which begins on the day after a Councillor nominates as a candidate in an election and ends on the day the election result is publicly declared
     
  • Imposing an obligation on a Councillor who nominates as a candidate to notify the CEO as soon as possible after their nomination
     
  • Prohibiting a Councillor from performing the functions and duties of a Councillor during the ‘candidate leave of absence' – including prohibiting them from attending Council and delegated committee meetings and attending Council premises
     
  • Prohibiting a Councillor from receiving their allowance and from being reimbursed for any expenses incurred during the ‘candidate leave of absence'.

  These changes will take the matter of candidacy and leave of absence out of the hands of the nominating Councillor and instead direct their leave of absence for the duration of their candidacy. Of course, the matter of what to do after preselection but before nomination remains a matter for the Councillor’s own judgement. 

  In addition, the issue of what constitutes ‘Council premises’ may become a live one. On its face, ‘Council premises’ would include any Council owned or managed building or facility, going beyond the Council Chamber to include leisure centres, sports facilities and the like. Ideally the scope of the prohibition is clarified before the Bill is passed, perhaps by way of a definition of ‘Council premises’ being inserted. Otherwise it could be left to a Court to ‘read down’ the prohibition on attending ‘Council premises’, so that it only applies if the Councillor is attending Council premises in their capacity as a Councillor.

  Importantly, these provisions will only apply to an election held after 1 January 2027. So, Councillors nominating as candidates in the upcoming State election will again be left to their own devices.

• Standing down a Councillor charged with an offence

  The operation of s 229 of the Act has attracted some attention recently, after a Councillor was stood down as a result of being charged with an indictable offence by a local resident in a private prosecution.

  The Bill seeks to address this by:

  • Amending the definition of ‘law enforcement agency’ to include the Chief Municipal Inspector
     
  • Adding a new s 229(2A) to the Act which provides that a Councillor will only be stood down if:
    • The proceeding for the offence is commenced on behalf of a law enforcement agency; or
    • The complainant is a law enforcement agency.

  This change will prevent Councillors from being stood down when individuals bring private prosecutions against them (whether as retaliation for perceived slights, or as a means of altering a council’s composition in the lead up to important or contentious decisions).

  Currently, Councillors who are stood down are prohibited from attending Council, delegated committee meetings, and ‘Council premises’. The Bill does not seek to alter this. Again, the continued reference to ‘Council premises’ makes for some uncertainty.

  These changes are not retrospective, and so will not apply to any Councillor who is currently stood down as a result of a private prosecution, or who is stood down as a result of a private prosecution commenced before the Bill commences operation.

• Model Governance Rules

  While we all eagerly await the release of the Model Governance Rules, the Bill introduces the enabling provisions required for their implementation. Specifically, councils:

  • Will be required to adopt or incorporate the Model Governance Rules as part of their own Governance Rules in accordance with regulations (which are yet to be circulated)
     
  • May include any other matters in their own Governance Rules that they consider appropriate, as long as those matters are not inconsistent with the Model Governance Rules
     
  • Will not be required to conduct a community engagement process if they are developing, adopting or amending their Governance Rules to incorporate one or more provisions of the Model Governance Rules, or otherwise in a manner permitted by the regulations.

  It appears that the intention is to prescribe the day on which the Model Governance Rules take effect, and the date by which councils must adopt them, by regulation at a later date.

  So, we will continue to ‘watch this space’ for the release of the Model Governance Rules.

• Operation Sandon changes

  The Bill proposes a series of other changes that are clearly intended to address the various governance matters identified by IBAC in its Operation Sandon Report. Among other things, the Bill introduces provisions which:

  • Prohibit a Councillor who has a conflict of interest in a matter from directing, influencing or attempting to influence or discuss the matter with another person who is participating in, or is expected to participate in, the decision making process in relation to the matter
    
    The prohibition may prove problematic if, as a landowner or business operator, the Councillor wishes to use a public platform available to anyone else to express support for or opposition to a matter of private concern. There may even be an issue as to whether the prohibition unduly restricts one or more of the human rights contained in the Charter of Human Rights.
     
  • Impose an obligation on the CEO to report any failure by a Councillor to comply with their conflict of interest obligations to the Local Government Inspectorate – similar to the mandatory notification which currently exists in respect of staff.
     
  • Require councils to adopt any prescribed procedures relating to their dealing with:
    • Alleged breaches of the Model Councillor Code of Conduct
    • Alleged serious misconduct
    • Disputes between two or more Councillors
       
  • Empower the Minister, upon becoming aware of a dispute between two or more Councillors relating to alleged breaches of the Model Councillor Code of Conduct or alleged serious misconduct, to request that the council deal with the dispute in accordance with:
    • Any prescribed procedure adopted under the Act
    • Advice obtained by the council from a suitably qualified external person on sufficient and appropriate steps to resolve the dispute
       
  • Provide for regulations to be made in respect of the processes for mediating disputes between Councillors, including alleged breaches of the Model Councillor Code of Conduct and alleged serious misconduct, and who may act as a mediator.

  If these changes are introduced, councils will need to carefully consider what internal arrangements they will make to assist with compliance. In particular, councils will need to consider having clear processes for:

  • Restricting communications between Councillors with conflicts of interest and others involved in the decision making process
     
  • Identifying and reporting undisclosed conflicts of interest where Councillors are concerned.

Conclusion 

The Bill is not a wholesale rewrite of the Act, but it does propose a number of important changes to the way councils manage governance, integrity and Councillor conduct issues. Some of the changes are directed at known pressure points in the sector, while others are intended to provide more uniform processes across councils. If passed, the Bill will require councils to revisit their governance settings and make sure that Councillors, CEOs and Governance staff understand both the new obligations and the practical steps needed to comply with them.