Behavioural Standards and Integrity Provisions – in the nick of time!

Behavioural Standards and Integrity Provisions - in the nick of time!

23 November 2022

As readers would be aware from our prior Alerts, reforms to the Local Government Act 1999 (the Act), as specified under the Statutes Amendment (Local Government Review) Act 2021, have commenced in a staged manner throughout 2022 and 2023.

A tranche of reforms not previously notified to be commenced on a specific date were proclaimed on 17 November 2022, with immediate effect, and just in time following conclusion of the local government periodic elections.

Below we summarise the key amendments made to the Act.

1.        Integrity Provisions

Certain obligations for Members, some of which were formerly contained in Part 3 of the Code of Conduct for Council Members (now repealed) are now incorporated under the Act and comprise the ‘integrity provisions’ for Council Members. These include:

  • section 62(4a) of the Act addresses the confidentiality obligations for a Member (as well as former Member) to not disclose information or a document which is subject to a confidentiality order under the Act, or is information the Member (or former Member) knows, or ought reasonably to know, is information or a document that it otherwise required to be treated on a confidential basis;
  • section 62(4c) of the Act provides that Member must not direct or seek to influence an employee of the council in the exercise or performance of a power or function delegated to, or performed by, the employee;
  • section 62(4d) of the Act provides that Members must ensure requests for information or documents from Administration, requests for the performance of work, or the taking of action by an employee of the council, are made in accordance with the requirements of the Chief Executive Officer;
  • obligations with respect to Gifts and Benefits set out in section 72A of the Act:
    • prohibit Members from seeking out or receiving a gift or benefit that is (or could reasonably be taken to be), intended or likely to create a sense of obligation to a person on the part of the Member, or influence the Member in the performance or discharge of functions or duties;
    • requires Gifts and Benefits above a prescribed amount (determined by the Minister to be $50) to be disclosed and set out in a Register maintained by the Chief Executive Officer;
    • Gifts and Benefits received by designated persons or entities, (defined to include a family member, a family company or a trustee of a family trust) must be disclosed on the Gifts and Benefits Register;
  • the format of Ordinary and Primary Returns has been amended, and are much more ‘user friendly’ in this respect. New Members must submit a Primary Return on this amended form within six (6) weeks of the conclusion of the elections, and all Members will be required to submit their Ordinary Returns from June 2023 on the new form;
  • the conflict of interest provisions have been amended, such that there are now only two (2) categories of interest, being a material conflict of interest and a general conflict of interest. A Members obligation in dealing with these interests largely mirrors the former provisions, in that a Member;
    • must disclose a material conflict of interest and leave the meeting and not participate in the discussion, debate and determination of the matter; and
    • must disclose a general conflict of interest and otherwise deal with it in a transparent and accountable way, noting that leaving the meeting is not the only manner in which to deal with such an interest;
  • the exemptions under the conflict of interest provisions have also largely been retained, however the former category of ordinary business under the Local Government (General) Regulations 2013 (the Regulations) are now termed prescribed matters;
  • in addition to the abovementioned integrity provisions, section 62(4e) of the Act provides for regulations to be made to include further matters, and regulation 7 of the Regulations currently provides for the following additional integrity provisions:
    • Members must not exercise, perform or discharge (or purport to do so), a power, duty or function relating to the office of the Member they are not authorised to exercise, perform or discharge;
    • Members must not use council resources, including the services of an employee of a council, for private purposes, unless –
      • legally or appropriately authorised to do so; and
      • where appropriate, payment for the use of the resources is made;
    • Members must, in the performance and discharge of official functions and duties where the Member considers that written communication is appropriate, use a written communication facility or service provided by the Council (i.e. it is now an integrity provision for a Member to fail to use a Council provided email address in the performance of their role).

Complaints alleging that a Member has failed to comply with an integrity provision are to be made to the Ombudsman, who may investigate the complaint and make recommendations to the Council.

2.        Behavioural Standards
  • The Code of Conduct for Council Members has been replaced with the Behavioural Standards for Council Members (the Behavioural Standards).
  • Councils may adopt a Behavioural Support Policy to supplement the Behavioural Standards and must consider whether or not to do so within six (6) months from the conclusion of the elections.
  • Councils must adopt a Behavioural Management Policy which sets out processes and procedures for the making of, assessment and determination of complaints concerning the behaviour of Council Members.  A Policy must be adopted on or before 10 November 2023 and, thereafter, reviewed within 12 months after the conclusion of each periodic election. In the interim, until a council adopts its Behavioural Management Policy, the ‘model’ Behavioural Management Policy prepared by the LGA is taken (by virtue of regulation 16 of the Local Government (Transitional Provisions) Regulations 2021) to be the council’s Behavioural Management Policy.
  • Section 75G introduces new health and safety obligations for Members, including the requirement that Members must take reasonable care that their conduct does not adversely affect the health and safety of other Members or employees of the council.

If the person whose health and safety is adversely affected by a Member’s conduct is an employee of the council, the CEO may give the Member a reasonable direction that must be complied with, which may include a direction that a Member not attend a meeting of a council committee or (as a last resort) the council. Where the person whose health and safety has been adversely affected is a Member of the council, the Principal Member may provide such reasonable direction (and the Deputy or another Member chosen by the council where the health and safety of the Principal Member is adversely affected).

A complaint that a Member has contravened the Behavioural Standards is to be made and dealt with in accordance with the council’s Behavioural Management Policy. Complaints relating to misbehaviour, repeated misbehaviour and serious misbehaviour (as defined) may be referred by certain persons to the Behavioural Standards Panel.

3.        Primary and Ordinary Returns
  • The consequences for failing to submit an Ordinary or Primary Return have been amended, such that failure to submit within one (1) month of the applicable due date for the relevant return will result in the Member being suspended from office.  During the term of suspension, the Member is not entitled to be paid their allowance.
  • The suspension will come to an end when Member submits the return and the CEO publishes a notice on the council’s website specifying the date upon which the return was submitted. However, if the Member is suspended for a continuous period of more than 12 months, the council must apply to SACAT for an order disqualifying the Member from office.
4.        Training and development

Section 80A of the Act concerns training and development policies for Members and the mandatory training requirement for Members have been significantly amened.

Where a Member fails to comply with a mandatory requirement, including their mandatory training requirements over the next 12 months, the council must suspend the Member from office until they comply with the same, unless ‘good reason’ exists for the failure to comply.

Again, if the Member is suspended for a continuous period of more than 12 months, the council must apply to SACAT for an order disqualifying the Member from office.

All of the above amendments, plus more, are addressed and explained in a clear and concise manner in our Raising the Bar post-election training program, which program delivers upon the prescribed content and learning outcomes attaching to the mandatory training requirements (as set out in the LGA Training Standards for Council Members).

Any questions or for further information, please contact:

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