Local Government Reform — additional statutory responsibilities for elected members

19 October 2021

Real change?

This next instalment in our Local Government Reform series addresses the additional statutory responsibilities for principal members and council members that are included at sections 58 and 59 of the Local Government Act 1999 (the Act).

We do not simply ‘re-state’ the provisions of the Act. Rather, consistent with our promise to deliver practical and useful information, we set out below what the changes might mean for you and your council.

These amendments arise, largely, from what was originally proposed as Reform Area 1. Click here to access our original article relevant to Reform Area 1 published in August 2019.

Reform Area 1 dealt with elected member capacity and improved conduct provisions, with a stated objective of:

• improving the legislative framework to support and promote better conduct and to strengthen council member capacity; and
• recognising the status of council members as democratically elected representatives, accountable to their communities and who, ultimately, are to be judged at local government elections.

Whilst the amendments broaden the statutory scope of responsibilities for all council members and we do not yet have any detail on what is or might be contained in the Minister’s Behavioural Standards, (or, otherwise, ‘linked’ by a council’s Behavioural Management Policy), it is difficult to see how these newly created responsibilities and obligations may be enforced. For now, they can only be considered as ‘aspirational’ in nature.

Below is a commentary on the amendments, noting that the formerly expressed roles for the principal member and council members continue.

Section 58 – specific roles of principal member

The community often see the principal member as the ‘steward’ of the council and the lynchpin of the leadership team. The amendments recognise and ‘codify’ this leadership role within the elected member body. The first role for the principal member under the Act is now described as one to:

                       provide leadership and guidance to the council.

The principal member now has a positive obligation to lead and promote positive and constructive working relationships amongst all members of the council and to provide guidance in the performance of roles as members of the council.

The policy intent evidences an expectation that the principal member will ‘model’ the values of integrity, accountability and transparency, working constructively being a ‘top down’ approach.

The amendments bestow on the principal member a ‘mentor’ function, with an obligation to ‘lead by example’, all of which is to be carefully considered by not only existing principal members but also by those persons who may wish to nominate for a Mayoral position in the 2022 local government general elections.

Whilst the additional inclusions at section 58 of the Act recognise that the role of the principal member extends beyond presiding at council meetings, liaising with the CEO, acting as principal spokesperson and overseeing civic/ceremonial duties (which responsibilities remain), they do not to create new obligations, they do not create new powers.

Section 59 – roles of council members  

In many respects the amendments to the role of members (with the previous roles still remaining) ‘mirror’ those made to that of the principal member. That is, council members, have an equally positive obligation, under the Act, to act with integrity, ensure positive and constructive relationships within the council and to recognise and support the principal member.

Whilst these are each a matter which is within the Code of Conduct for Council Members (the Code), the Code is to be repealed and replaced with the Minister’s Behavioural Standards.

There is also a ‘catch all’ inclusion, being the obligation for council members to ‘serve the overall public interest’. This is to be considered in the context of sections 6, 7 and 8 of the Act and the obligation for members to identify and deal with a conflict of interest in council decision-making. At the very least, this operates as a ‘reminder’ to council members that their primary role is to serve the overall public interest, not their own, personal, interests, in giving effect to their roles and responsibilities under the Act.

There is also the additional, prescribed, role to participate in the oversight of CEO performance under the CEO’s employment contract. This is an ‘adjunct’ to the section 102A amendment (due to commence November 2021) which sets out the legal requirement for the CEO performance review process to occur once a year and to be undertaken in conjunction with the advice and assistance of a qualified independent person.

Whilst there were a range of views expressed as part of the reform process as to whether council members should be required to have a particular qualification, or undergo training relevant to being a member, in the end, this objective has been addressed by the inclusion of an obligation for members to:

                     develop skills relevant to the role of a member of the council and the function of the council as a body.

This addition to the Act does not appear to add anything further than what is already contained at section 80A of the Act, concerning training and development.

Summary

The policy intent of many of these amendments appears to be the addressing of public concerns raised by both the (former) ICAC and the Ombudsman about the number of complaints received from members against another member. Many of these have stemmed from disagreements or personality clashes, as well as matters that might be considered to be trivial or petty, but which are extremely detrimental to the effective functioning of the governing body. The experiences have shown that it becomes difficult, if not impossible, for a council to operate effectively if its members are unable to overcome personal differences.

The amendments, by way of inclusions, to the roles of the principal member and council members, largely, codify ‘higher-level principles’ of behaviour that members are expected to demonstrate under the Code. They represent a clear message from the Minister that there is an expectation that members will consider their own behaviours when dealing with other members. However, only time and experience will tell if the amendments will result in any ‘real’ change in this respect, or if they will, again, remain only aspirational.

For further information contact:

Michael Kelledy on 08 8113 7103 or mkelledy@kelledyjones.com.au;

Natasha Jones on 08 8113 7102 or njones@kelledyjones.com.au;

Tracy Riddle on 08 8113 7106 or triddle@kelledyjones.com.au; or

Cimon Burke on 08 8113 7105 or cburke@kelledyjones.com.au