Local Government (General) Amendment (Code of Conduct) Regulations 2006

Local Government (General) Amendment (Code of Conduct) Regulations 2006

I, the Governor in and over the State of Tasmania and its Dependencies in the Commonwealth of Australia, acting with the advice of the Executive Council, make the following regulations under the Local Government Act 1993 .

1 May 2006

W. J. E. COX

Governor

By His Excellency's Command,

P. A. LENNON

Minister for Local Government and Community Development

1.   Short title

These regulations may be cited as the Local Government (General) Amendment (Code of Conduct) Regulations 2006 .

2.   Commencement

These regulations take effect on the day on which their making is notified in the Gazette.

3.   Principal Regulations

In these regulations, the Local Government (General) Regulations 2005 are referred to as the Principal Regulations.

4.    Regulation 3 amended (Interpretation)

Regulation 3 of the Principal Regulations is amended as follows:

(a) by inserting the following definitions after the definition of Act :

appropriate authority means –

(a) the Director; and

(b) the Commissioner of Police;

code of conduct means a code of conduct adopted under section 28E of the Act;

complaint, for the purposes of Part 2A , means a complaint made under section 28F of the Act;

(b) by inserting the following definition after the definition of nominating period :

notify means give notice in writing;

(c) by inserting the following definition after the definition of public tender :

respondent councillor means a councillor who is the subject of a complaint;

5.    Part 2A inserted

After regulation 22 of the Principal Regulations , the following Part is inserted:

PART 2A - Code of Conduct

Division 1 - Code of conduct and complaints

22A.   Matters to be addressed by code of conduct

For section 28E(2)(b) of the Act, the following matters are prescribed:

(a) conflicts of interest;

(b) the use of the office of councillor, mayor or deputy mayor;

(c) the use of council resources;

(d) the use of council information;

(e) the giving and receiving of gifts and benefits;

(f) relationships with the community, other councillors and council employees;

(g) the representation of the council.

22B.   How to make complaints

A complaint is to –

(a) be in writing; and

(b) be lodged with the mayor (or the deputy mayor if the complaint relates to the mayor); and

(c) be lodged within 90 days after the alleged failure to comply with the code of conduct; and

(d) contain particulars of the alleged failure; and

(e) identify the complainant; and

(f) be accompanied by the fee specified in item 4 of Schedule 3 .

22C.   Action to be taken by mayor, &c., on receiving a complaint

(1)  On receiving a complaint, the mayor (or, if appropriate, the deputy mayor) is to notify the respondent councillor –

(a) of the complaint; and

(b) of the respondent councillor's right to elect to have the complaint referred to the Local Government Association of Tasmania to be dealt with by a Standards Panel; and

(c) that, in the absence of such an election, the complaint will be referred to and dealt with by a Code of Conduct Panel.

(2)  On receiving a notification under subregulation (1) , the respondent councillor may elect to have the complaint referred to the Local Government Association of Tasmania to be dealt with by a Standards Panel.

(3)  An election under subregulation (2) is to be –

(a) in writing; and

(b) lodged with the Local Government Association of Tasmania within 7 days after the respondent councillor is notified under subregulation (1) ; and

(c) accompanied by the fee specified in item 5 of Schedule 3 .

(4)  As soon as practicable after making an election under subregulation (2) , a respondent councillor is to notify the mayor (or, if appropriate, the deputy mayor) of the election.

(5)  In the absence of an election under subregulation (2) the mayor (or, if appropriate, the deputy mayor) is to refer the complaint to a Code of Conduct Panel.

Division 2 - Code of Conduct Panel

22D.   Proceedings of Code of Conduct Panel

(1)  A Code of Conduct Panel is to deal with each complaint referred to it unless the Panel reasonably determines that –

(a) the complaint discloses that an offence or a crime may have been committed; or

(b) the Panel does not have the expertise to hear and determine the complaint; or

(c) the complaint –

(i) is frivolous or vexatious; or

(ii) does not relate to a failure to comply with a provision of the Code of Conduct; or

(d) the complaint has been made in contravention of a direction under regulation 22J(5) .

(2)  If subregulation (1)(a) applies, a Code of Conduct Panel is to notify each appropriate authority of its determination.

(3)  If subregulation (1)(b) applies, a Code of Conduct Panel is to refer the complaint to the Local Government Association of Tasmania to be dealt with by a Standards Panel.

(4)  If subregulation (1)(c) or (d) applies, a Code of Conduct Panel is to reject the complaint.

(5)  A Code of Conduct Panel that deals with a complaint is to –

(a) give the respondent councillor an opportunity to respond to the complaint; and

(b) hear and determine the complaint –

(i) within 90 days after the complaint is referred to it; and

(ii) in a fair and equitable manner.

(6)  A Code of Conduct Panel may –

(a) hear and determine one or more complaints about a respondent councillor in the same proceedings; and

(b) require a complainant or respondent councillor to give it further particulars regarding a complaint; and

(c) subject to the Act and these regulations, regulate its own proceedings.

22E.   Mediation of complaints – Code of Conduct Panel

(1)  A Code of Conduct Panel that is dealing with a complaint is to invite the complainant and respondent councillor to participate in mediation in respect of the complaint.

(2)  If the complainant and respondent councillor accept the invitation, the mediation is to be conducted –

(a) over a period not exceeding 21 days; and

(b) on such conditions as the Code of Conduct Panel determines.

(3)  The mediation is to be conducted by a person nominated by the Panel.

(4)  A Code of Conduct Panel may hear and determine a complaint that is being mediated –

(a) after the conclusion of mediation; or

(b) if mediation is not concluded within 21 days, after the expiration of that period.

22F.   Determination of Code of Conduct Panel

(1)  After hearing a complaint, a Code of Conduct Panel may –

(a) uphold the complaint; or

(b) dismiss the complaint.

(2)  A determination under subregulation (1) is to be agreed on by both members of the Panel, and if they cannot so agree, the complaint is to be dismissed.

(3)  If the Code of Conduct Panel upholds the complaint, it may impose one or more of the following sanctions on the respondent councillor:

(a) a caution;

(b) a reprimand;

(c) a requirement to apologise to a person affected by the failure to comply with the code of conduct;

(d) a requirement to attend counselling or a training course.

(4)  The Code of Conduct Panel is to notify the complainant and the respondent councillor of its determination and the right of appeal under regulation 22L(1) .

22G.   Code of Conduct Panel to report to mayor

(1)  After determining a complaint, a Code of Conduct Panel is to give a report to the mayor (or, if appropriate, the deputy mayor) of the following:

(a) a summary of the complaint;

(b) the name of the respondent councillor;

(c) its determination;

(d) the relevant facts and evidence on which its determination is based;

(e) the reasons for its determination;

(f) any sanction imposed on the respondent councillor.

(2)  However, a report under subregulation (1) is not to be given –

(a) before the time for lodging an appeal under regulation 22L(1) has expired; or

(b) if an appeal has been lodged in accordance with regulation 22L(1) .

(3)  On receiving a report, the mayor (or, if appropriate, the deputy mayor) is to ensure that –

(a) the report is tabled at the next available closed meeting of the council; and

(b) the following information from the report is tabled at the next available open meeting of the council:

(i) a summary of the complaint;

(ii) the determination;

(iii) any sanction imposed on the respondent councillor;

(iv) if a sanction has been imposed, the name of the respondent councillor.

(4)  The Code of Conduct Panel is to ensure that a copy of the report is also given to the complainant and the respondent councillor.

Division 3 - Standards Panel

22H.   Proceedings of Standards Panels

(1)  A Standards Panel is to deal with each complaint referred to it unless the Panel reasonably determines that the complaint discloses that an offence or a crime may have been committed (in which case it is to notify each appropriate authority).

(2)  A Standards Panel that deals with a complaint is to –

(a) give the respondent councillor an opportunity to respond to the complaint; and

(b) hear and determine the complaint –

(i) within 90 days after the complaint is referred to it; and

(ii) in a fair and equitable manner.

(3)  A Standards Panel may –

(a) hear and determine one or more complaints about a respondent councillor in the same proceedings; and

(b) require a complainant or respondent councillor to give it further particulars regarding the complaint; and

(c) subject to the Act and these regulations, regulate its own proceedings.

22I.   Mediation of complaints – Standards Panel

(1)  A Standards Panel that is dealing with a complaint is to invite the complainant and respondent councillor to participate in mediation in respect of the complaint.

(2)  If the complainant and respondent councillor accept the invitation, the mediation is to be conducted –

(a) over a period not exceeding 21 days; and

(b) on such conditions as the Panel determines.

(3)  The mediation is to be conducted by a person nominated by the Panel.

(4)  A Standards Panel may hear and determine a complaint that is being mediated –

(a) after the conclusion of the mediation; or

(b) if mediation is not concluded within 21 days, after the expiration of that period.

22J.   Determination of Standards Panel

(1)  After hearing a complaint, a Standards Panel may –

(a) uphold the complaint; or

(b) dismiss the complaint.

(2)  If a Standards Panel consists of three members, a determination under subregulation (1) is to be by a majority vote.

(3)  If a Standards Panel consists of two members, a determination under subregulation (1) is to be agreed on by both members of the Panel, and if they cannot so agree, the complaint is to be dismissed.

(4)  If the Standards Panel upholds the complaint, it may impose one or more of the following sanctions on the respondent councillor:

(a) a caution;

(b) a reprimand;

(c) a requirement to apologise to a person affected by the failure to comply with the code of conduct;

(d) a requirement to attend counselling or a training course.

(5)  If the Standards Panel dismisses the complaint, it may direct that the complainant not make a complaint in relation to the same matter for a period of 12 months, unless the complainant provides substantive new information.

(6)  The Standards Panel is to notify the complainant and the respondent councillor of its determination.

22K.   Standards Panel to report to mayor

(1)  After determining a complaint, a Standards Panel is to give a report to the mayor (or, if appropriate, the deputy mayor) of the following:

(a) a summary of the complaint;

(b) the name of the respondent councillor;

(c) its determination;

(d) the relevant facts and evidence on which its determination is based;

(e) the reasons for its determination;

(f) any sanction imposed on the respondent councillor.

(2)  However, a report under subregulation (1) is not to be given –

(a) within 28 days after the giving of notification under regulation 22J(6) ; or

(b) if either party makes an application to a court in relation to the complaint within those 28 days, until after the completion of those court proceedings.

(3)  On receiving a report, the mayor (or, if appropriate, the deputy mayor) is to ensure that –

(a) the report is tabled at the next available closed meeting of the council; and

(b) the following information from the report is tabled at the next available open meeting of the council:

(i) a summary of the complaint;

(ii) the determination;

(iii) any sanction imposed on the respondent councillor;

(iv) if a sanction has been imposed, the name of the respondent councillor.

(4)  The Standards Panel is to ensure that a copy of the report is also given to the complainant and the respondent councillor.

22L.   Appeals to Standards Panel

(1)  A complainant or a respondent councillor who is dissatisfied with the determination of a Code of Conduct Panel may, within 21 days after receipt of a notification under regulation 22F(4) , lodge an appeal with the Local Government Association of Tasmania to be heard and determined by a Standards Panel.

(2)  An appeal under subregulation (1) is to –

(a) be in writing; and

(b) identify the determination to which the appeal relates; and

(c) state the grounds for the appeal; and

(d) be accompanied by the fee specified in item 6 of Schedule 3 .

(3)  If the Standards Panel is of the opinion that an appeal relates to another appeal that it is to hear and determine, it may decide to hear and determine both appeals in the same proceedings, if it is satisfied that this is fair to all parties.

(4)  A Standards Panel is to hear and determine an appeal –

(a) within 90 days after the appeal is lodged; and

(b) in a fair and equitable manner.

(5)  A Standards Panel may –

(a) hear matters afresh; and

(b) take into account new information not considered by the Code of Conduct Panel; and

(c) subject to the Act and these regulations, regulate its own proceedings.

22M.   Determination of Standards Panel regarding appeals

(1)  In determining an appeal, a Standards Panel may –

(a) affirm the determination of a Code of Conduct Panel; or

(b) set aside that determination.

(2)  If a Standards Panel consists of three members, a determination under subregulation (1) is to be by a majority vote.

(3)  If a Standards Panel consists of two members, a determination under subregulation (1) is to be agreed on by both members of the Panel, and if they cannot so agree, the determination of the Code of Conduct Panel is to be affirmed.

(4)  If a Standards Panel sets aside the determination, it is to substitute –

(a) a determination of the kind specified in regulation 22F(1) ; and

(b) if the complaint is upheld, a sanction in accordance with regulation 22F(3) .

(5)  The Standards Panel is to notify the complainant and the respondent councillor of its determination.

22N.   Standards Panel to report to mayor regarding appeals

(1)  After determining an appeal, a Standards Panel is to give a report to the mayor (or, if appropriate, the deputy mayor) of the following:

(a) a summary of the appeal;

(b) the name of the respondent councillor;

(c) its determination;

(d) the relevant facts and evidence on which its determination is based;

(e) the reasons for its determination;

(f) any sanction imposed on the respondent councillor.

(2)  However, a report under subregulation (1) is not to be given –

(a) within 28 days after the giving of notification under regulation 22M(5) ; or

(b) if either party makes an application to a court in relation to the complaint within those 28 days, until after the completion of those court proceedings.

(3)  On receiving a report, the mayor (or, if appropriate, the deputy mayor) is to ensure that –

(a) the report is tabled at the next available closed meeting of the council; and

(b) the following information from the report is tabled at the next available open meeting of the council and recorded in the minutes:

(i) a summary of the complaint;

(ii) the determination;

(iii) any sanction imposed on the respondent councillor;

(iv) if a sanction has been imposed, the name of the respondent councillor.

(4)  The Standards Panel is to ensure that a copy of the report is also given to the complainant and the respondent councillor.

Division 4 - Procedures to be followed by Code of Conduct Panel and Standards Panel

22O.   Interpretation

In this Division –

Panel means –

(a) a Code of Conduct Panel determining complaints; and

(b) a Standards Panel determining complaints; and

(c) a Standards Panel determining appeals.

22P.   Procedure and evidence

(1)  A Panel is not bound by the rules of evidence but may inform itself on any matter in any manner that it considers appropriate.

(2)  A Panel may itself elicit the issues in dispute and the facts of a matter by –

(a) inquiry of the parties and any witnesses; and

(b) examination of evidence, if any, produced to the Panel.

(3)  The proceedings are to take the form of an inquiry by the Panel into the matters in dispute between the parties rather than an adversarial contest between the parties.

(4)  A Panel may itself call and examine witnesses.

(5)  The proceedings are to be conducted with as little formality and as much expedition as possible, having regard to the requirements of these regulations, and a proper consideration of the issues in dispute.

(6)  In proceedings before a Panel, evidence may –

(a) be taken on oath or affirmation; and

(b) be given orally, or in writing.

(7)  Where evidence is given in writing, a Panel may require the person giving that evidence to verify it by statutory declaration.

(8)  A Panel is to give any evidence that it takes or receives such weight as it considers appropriate.

(9)  A contravention of this regulation does not invalidate the hearing or determination of the proceedings in respect of which the contravention occurs.

22Q.   Panel to afford procedural fairness

A Panel must afford procedural fairness to the complainant and to the respondent councillor in all proceedings.

22R.   Representation at hearings

A complainant or respondent councillor may be represented at proceedings by –

(a) with the consent of the relevant Panel and the other party, a legal practitioner; or

(b) with the consent of the relevant Panel, any other person.

22S.   Proceedings closed to the public

The proceedings of a Panel are closed to the public.

Division 5 - Miscellaneous matters

22T.   Disclosure

(1)  Except in carrying out an obligation under this Part or as required in any proceedings, a mayor, deputy mayor or member of a Code of Conduct Panel or Standards Panel must not disclose –

(a) the fact that a complaint has been made; or

(b) the identity of a complainant or respondent councillor; or

(c) any other information relating to a complaint.

Penalty:  Fine not exceeding 10 penalty units.

(2)  However, subregulation (1) does not apply –

(a) if a determination has been made under regulation 22F and –

(i) no appeal has been lodged under regulation 22L(1) ; and

(ii) the time allowed for lodging such an appeal has expired; or

(b) if a determination has been made under regulation 22J or 22M and –

(i) a period of 28 days has expired since the giving of notification of that determination; and

(ii) neither party to the complaint makes an application relating to the complaint to a court within that period; or

(c) if either party to the complaint makes an application to a court in relation to the complaint within 28 days after the giving of notification under regulation 22J or 22M , after those court proceedings are completed.

22U.   Refund of fees

(1)  A Code of Conduct Panel is to refund the fee paid by a complainant on lodging a complaint if –

(a) the complaint is upheld; or

(b) the complainant withdraws the complaint, with the agreement of the Panel, before it is dealt with by the Panel; or

(c) the Panel notifies each appropriate authority under regulation 22D(2) ; or

(d) a party to the complaint dies before the Panel determines the complaint; or

(e) the respondent councillor resigns or loses office before the Panel determines the complaint.

(2)  A Standards Panel is to refund the fee paid by a respondent councillor who refers a complaint to it if –

(a) the complaint is not upheld; or

(b) the complainant withdraws the complaint, with the agreement of the Panel, before it is dealt with by the Standards Panel; or

(c) the Panel notifies each appropriate authority under regulation 22H(1) ; or

(d) a party to the complaint dies before the Panel determines the complaint; or

(e) the respondent councillor resigns or loses office before the Panel determines the complaint.

(3)  A Standards Panel is to refund the fee paid by a person lodging an appeal if –

(a) it sets aside or substitutes the determination of the Code of Conduct Panel; or

(b) the person lodging the appeal is not entitled to lodge an appeal; or

(c) the person lodging the appeal withdraws the appeal, with the agreement of the Standards Panel, before it is dealt with by the Standards Panel; or

(d) a party to the appeal dies before the Standards Panel determines the appeal; or

(e) the respondent councillor resigns or loses office before the Standards Panel determines the appeal.

(4)  A council, on request by a Standards Panel, is to refund the fee paid to the council by the complainant if –

(a) the complaint has been referred to the Standards Panel under regulation 22C(2) ;or

(b) the Standards Panel has made a determination under regulation 22M(4) .

6.    Schedule 3 amended (Fees)

Schedule 3 to the Principal Regulations is amended by inserting after item 3 the following items:

4.

Making a complaint under section 28F of the Act

20 fee units

5.

Referral of a complaint under section 28F of the Act

50 fee units

6.

Lodging an appeal under section 28F of the Act

100 fee units

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 10 May 2006

These regulations are administered in the Department of Premier and Cabinet.

EXPLANATORY NOTE

(This note is not part of the regulation)

These regulations amend the Local Government (General) Regulations 2005 by providing for – 

(a) the matters to be addressed in a code relating to the conduct of councillors; and

(b) the procedure for making and hearing complaints relating to alleged failures to comply with such codes; and

(c) incidental and ancillary matters relating to complaints, including appeals, fees, and procedures of Code of Conduct Panels and Standards Panels.