Parliament aspirations? But will ‘absence make the heart grow fonder’?

8  October 2021

As per our commitment to keep you updated in concise and simple terms, we deliver the next instalment in our Local Government Reform Alerts. This alert addresses the new leave of absence provision recently inserted as section 55A of the Local Government Act 1999 (the Act), which mandates a leave of absence for a council member who stands as a candidate for election as a member of State Parliament.

It is timely to address this legislative amendment given the flurry of media publications announcing candidates (and otherwise speculating about potential candidates) who will be contesting these elections, some of whom currently hold office as a council member under the Act.

The commencement of section 55A has been deliberately timed ahead of the next State Election that will take place in March 2022. The provision comes as holding office as a council member is being more commonly pursued as a precursor to a career in State politics (indeed we understand that such experience is a favourable pre-selection criteria). However, there are a number of legal conflict considerations that arise where this occurs.

The clear policy intent behind this provision is to eliminate any conflict between the duties of public office that attach to a council member and the member’s political campaign where that member is a candidate contesting the State Election.

This is how the leave of absence provision operates and what you should know:

• a leave of absence under section 55A (LoA) is distinct from a leave of absence arising from a decision of council (‘Permitted Leave’) that may be granted to avoid a causal vacancy arising under section 54(1)(d) of the Act.

• unlike Permitted Leave, the LoA is mandated leave that is deemed to be granted for the period commencing from the close of nominations in the State elections until public declaration of the election results;
• during the LoA, the member still holds office as a council member but is restricted from:

• • receiving the member’s allowance or reimbursement of expenses;
  • using any facility, service or other support provided by the council to assist the member in performing or discharging official functions and duties as a council member; and
  • carrying out any function or duty of their office as a member of the council.

A member who breaches the latter two restrictions is guilty of an offence that attracts a maximum penalty of $15,000.

• the LoA applies to all other offices that the member holds by virtue of being a member of the council. By way of example, this includes offices arising from the member being appointed by the Council as a member of:
  • a statutory board (for example, the Dog and Cat Management Board);
  • an incorporated association; or
  • a regional subsidiary or council committee;
• a council member who is subject to a LoA is:
  • not required to submit an ordinary return or notify of any changes to a register of interest, however, any required returns or updates must be submitted at the completion of the LoA where the member continues to hold office; and
  • not counted for the purposes of determining quorum of a council meeting. The effect of this is that the number of council members that constitute quorum under section 85 of the Act is reduced by the number of members who have been granted a LoA;
• if a member who is subject to a LoA is successfully elected to State Parliament the member automatically loses office as a member of the council pursuant to section 54(1)(e) of the Act. Otherwise, the member may resume duties as a council member when the LoA concludes upon the public declaration of the election results;
• if a member is successfully elected to State Parliament a casual vacancy arises in the office of that council member in accordance with section 54(1)(e) of the Act;
• the LoA does not apply where a member is a candidate contesting a Federal election, however, in this scenario it would be open to the member to seek Permitted Leave and for the council to grant the same, and for the member to voluntarily refuse their allowance during the Permitted Leave;
• as practical consideration for governance offices, the above means that:
  • the Council’s register of allowances and benefits will need to reflect the reduction in a member’s allowance as a consequence of the application of a LoA;
  • given section 55A does not address how agendas and minutes of meetings should be managed, consideration will need to be given to the distribution of such information. It is entirely appropriate that confidential information not be received during the LoA and if any other information is received, the relevant council member should be mindful that it cannot be used in relation to the performance of any functions or duties as a member; and
  • relevant policies should be reviewed taking into account the above. For example, the Council’s Allowances and Benefits policy may be updated to require certain forms of support (for example a tablet or iPad) be returned by a council member during a LoA.

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;

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

Victoria Shute on 08 8113 7104 or vshute@kelledyjones.com.au.