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Guide to Councils

Councillor conduct

The community expects their elected councillors to maintain high standards of conduct, as well as observe their legal obligations to support the effective decision making processes of the council. This section provides information about:

Code of conduct

All councils must adopt a councillor code of conduct. Each council must review their  code of conduct within 4 months after each general election and each council’s code applies equally to all of its councillors.

All incoming councillors must read their council’s code of conduct and make a written declaration that they will abide by it before taking (and remaining) in office. 

Councillor codes of conduct must include an internal resolution procedure for resolving disputes between councillors. This procedure must provide for the selection of a suitably independent arbiter and councils have the power to impose sanctions for contravention of the code of conduct (see below).

A council must make the code of conduct publicly available on the council’s website.

Principles of councillor conduct

The primary principle of councillor conduct is that in performing their role, a councillor must:

  • act with integrity;
  • impartially exercise responsibilities in the interests of the local community; and
  • not improperly seek to confer an advantage, or disadvantage, on any person.

Specific principles include the obligation to:

  • avoid conflicts of interest;
  • act honestly;
  • treat all persons with respect;
  • exercise reasonable care and diligence;
  • endeavour to ensure that public resources are used prudently and in the public interest
  • act lawfully; and
  • lead by example and act in a way that secures public confidence in the office of Councillor.

Councillor misconduct

Most councillors conduct themselves appropriately and in accordance with these standards. However, where they fail to do so, the Local Government Act provides arrangements for dealing with misconduct, serious misconduct and gross misconduct and provides distinct avenues and processes for dealing with each.

Internal resolution procedure

Councils are required to have in place an internal resolution procedure to address conduct that is in breach of the councillor code of conduct. The internal resolution process must make it clear how allegations of breaches of the code of conduct are to be handled. The internal resolution procedure must provide for an independent arbiter who is able to consider alleged violations of the code of conduct and make final determinations on them fairly and without bias. 

The council may impose sanctions through their internal resolution procedure for breaches of their code. These must be voted on by council as a whole and they may include: requiring an apology, suspension from up to two council meetings, a bar on chairing advisory or special committees for up to two months or, removal from a position where they represent council for up to two months

Misconduct

Misconduct means failing to comply with a council’s internal resolution procedure, including failure to abide by any decision of council in relation to a breach of the code, and repeated breaches of councillor conduct principles. A breach may be referred by a council, councillor or group of councillors to a Councillor Conduct Panel. If a panel finds the councillor did engage in misconduct, it may apply a range of sanctions, including requiring a councillor to take a leave of absence for up to 2 months.

Serious misconduct

Serious misconduct refers to behaviour that is disruptive to good governance. It includes repeated misconduct, bullying of councillor or staff, improperly directing staff, releasing confidential information and conduct that breaches some laws relating to the proper functioning of a council. It also includes failure to comply with a direction of a Panel following a finding of misconduct.

A breach may be referred by a council, councillor or group of councillors to a Councillor Conduct Panel. The Chief Municipal Inspector also has the power to investigate and initiate applications for a panel to be established to investigate allegations of serious misconduct against councillors. If a panel finds the councillor did engage in misconduct, it can apply a range of sanctions, including suspension for up to 6 months The panel may refer the matter to Victorian Civil and Administrative Tribunal (VCAT) on appeal only..

Gross misconduct

Gross misconduct is the most serious misconduct offence, reflecting adversely on the character of a councillor and their suitability to hold the office. It includes breaches of the councillor conduct principles and of certain sections of the Local Government Act which constitute summary offences, or conduct which demonstrates that a councillor is not of good character or is otherwise not a fit and proper person to hold the office of councillor.

These complaints may only be made by the Chief Municipal Inspector (CMI) as head of the Local Government Inspectorate and are heard by VCAT. If VCAT finds the allegation proven, it may order a councillor disqualified from holding office for up to eight years.

 Criminal prosecution

Where a councillor, or any other person, breaches a section of the Local Government Act, or any other Act - and the provision specifies that a breach constitutes a criminal offence - the councillor may be charged and prosecuted. Allegations of breaches of the Local Government Act are investigated by the Local Government Inspectorate. If a person is convicted of a serious criminal offence, they may be prohibited from being a councillor for a period of seven years. 

Principal councillor conduct registrar

The Principal Councillor Conduct Registrar oversees the panel process including the establishment of panels.

The Registrar is responsible for receiving applications for misconduct and serious misconduct and, if satisfied that the application is not frivolous, vexation or without evidentiary basis, responsible for establishing a panel from the list of potential panel members appointed by the Minister.

The Registrar is also responsible for publishing panel decisions and for providing guidance in relation to the operation of panels.

In this sense, the Registrar’s role is similar to that of other registrars, such as those for tribunals, and will ensure the system is open, transparent and understood by all affected. 

Councillor conduct panels

A Councillor Conduct Panel is comprised of two independent members appointed by the Registrar:

  • a legal practitioner with at least five years legal practice experience, and
  • a person with relevant expertise which is broader than just local government knowledge and may include specialist knowledge in governance, ethics and probity.

The Panel will hear a specific matter allegation of misconduct or serious misconduct. A Panel is bound by the rules of natural justice, but is otherwise able to determine its own manner of proceeding, including what evidence it will hear. Panel hearings are not open to the public.

After completing its hearing and decision, a Panel may:

  • make a finding of misconduct;
  • make a finding of serious misconduct
  • make a finding that remedial action is required
  • direct that the council amend its councillor code of conduct; or
  • dismiss the application

If it makes a finding of misconduct, a Panel may:

  • reprimand the councillor;
  • require an apology to specified persons or bodies;
  • require the councillor to take leave of absence from council for up to 2 months; or
  • direct that the councillor is ineligible to be mayor for up to 4 years

If it makes a finding of serious misconduct, a Panel may (in addition to the sanctions for a finding of misconduct):

  • Suspend the councillor for up to 6 months; or
  • direct that the councillor is ineligible to chair a special committee for up to 4 years
If it finds that remedial action is required, a Panel may direct the councillor to attend mediation, training or counselling.

  

Conflicts of interest

Councillors generally have close connections with their local community and are more likely to have conflicts of interest than other people in public life. Councillors are elected to serve in the best interests of their communities, and this includes being transparent about any private or other interests that may be seen to conflict with their public duty.

A person has a conflict of interest if they have a direct interest in a matter, for example if a person’s benefits, obligations, opportunities or circumstances would be likely to be directly altered if the matter is decided in a particular way.

There is nothing wrong with having a conflict of interest as long as the conflict is declared, and the risks removed in a transparent way by making a disclosure and then not participating in the relevant decision.

The Local Government Act prescribes a penalty for a person who fails to comply with the conflict of interest rules.

Direct interest

A direct interest includes where the person would receive a direct gain or loss that is measurable in money or where they, or they and a member of their family has a controlling interest in a company or other body that has a direct interest in the matter.

Indirect interest

A person also has a conflict of interest if they have one of the following five types of indirect interest:

  1. Interests of someone with whom the person has a close association, such as members of a person’s family, their partner or anyone the person lives with.
  2. Financial interest, where a person is likely to receive a gain or loss that is measurable in money and which arises as a result of the direct or indirect interest of another person, such as shares in a company with a direct interest, subject to an exemption threshold for small holding in large companies.
  3. A conflicting duty to another person or organisation as a director, committee member, manager, partner, consultant, contractor, agent or employee. Some exemptions are provided, including duties to certain organisations connected with local government.
  4. Receipt of a gift or gifts valued at $500 or more in the past five years from someone with a direct interest. This does not include reasonable hospitality received by the person when attending an event or function in an official capacity.
  5. An interest arising from being, or having been, a party to the matter by being a party to civil proceeding in relation to the matter. This includes civil proceedings in VCAT, and where there is reasonable likelihood the residential amenity of the person will be altered.

Exemptions

The Local Government Act includes some general exemptions, such as when the interest is so trivial or remote that no-one would reasonably consider it capable of influencing the person’s decision or when the interest is held in common with other residents, ratepayers or voters.

There are practical exemptions for councillors that are necessary for the functioning of the council, such as an exemption when voting to elect the Mayor.

Register of Interests

All Councillors and senior staff must lodge interest returns in which they disclose specified interests.

These include:

  • a primary return that must be lodged when becoming a Councillor or a senior officer; and
  • ordinary returns that must be lodged every six months while holding office.

Members of special committees are also required to lodge interest returns unless the council specifically exempts them.

All returns are kept in the register of interests and any person may make a written request to inspect the returns of a councillor, officer of committee member. Request forms are available from the Council.

Confidentiality

Councillors have access to council information necessary for them to carry out their roles properly. However a councillor must remain impartial and must not use council information to gain advantage for themselves or any other person.
Information is ‘confidential’ for the purposes of the Act if it is:
  • provided for a closed council or special committee meeting;
  • designated confidential by resolution of a council or special committee; and
  • designated confidential by the CEO

Information discussed at a closed meeting is confidential. Unless the information is already publicly available, councillors must not talk about anything discussed at the meeting with people who were not present.

The Freedom of Information Act and the Privacy and Data Protection Act 2014 also apply to councils. If you are concerned about the privacy of personal information held by the Council, you may wish to discuss this with council’s Privacy Officer, find out how to contact them by finding a council.