An amended version of the Model Code of Conduct and associated Procedures were prescribed by the Office of Local Government (OLG) in August this year. In essence, these changes to the Code reflect the decision made by the Supreme Court in the matter of Cornish v Secretary, Department of Planning, Industry and Environment (2019) NSWCS 1134 which found that there were limited sanctions Council can impose for a breach of the Code.
What does this mean for your council?
The amended Model Code of Conduct and Procedures took effect immediately. This is because the changes largely reflect existing practice and the changes are relatively minor in nature. Council’s should still update their Code of Conduct and Procedures as soon as possible so that these reflect the new Code.
Changes to the Procedures
The key changes to the Procedures relate to the options available to local councils when taking disciplinary action against a councillor for breach of the code of conduct. There are now only two options:
Option 1 – Formally censure a councillor for the breach under section 440G of the Local Government Act 1993 (the Act),
Option 2 – Formally censure a councillor for a breach under section 440G and refer the matter to the OLG for further disciplinary action under the misconduct provisions of the Act.
The process for censuring councillors for a breach has been significantly strengthened so that councillors are made publicly accountable to their electors for their conduct. Councils must now state in the resolution why the councillor is being censured and set out the investigator’s findings and determination.
Councillors may seek to avoid public censure by voluntarily agreeing to:
- undergo training or counselling
- apologise for their conduct or
- give undertakings not to repeat their conduct
This must happen before the investigator finalises their report to council.
Investigators can finalise investigations without a report to the council where they consider these to be an appropriate outcome to the matter they are investigating. However, it will remain open to investigators to finalise their report and to recommend censure where they consider this is appropriate and warranted.
The process for referral by councils of a code of conduct breach to the OLG for further disciplinary action under the misconduct provisions of the Act has also been streamlined. Before recommending referral to the OLG, the investigator must consult with the OLG. This is to check that the conduct in question is sufficiently serious to warrant disciplinary action for misconduct and that there is enough evidence of the breach to allow OLG to take further disciplinary action.
Council can now appoint a panel of conduct reviewers without a resolution of the council, and can refer an investigator’s report to OLG for action where the council will not have a quorum to deal with the matter.
Changes to the Model Code of Conduct
Minor changes have also been made to the Model Code of Conduct. This includes bringing up to date the definition of discrimination (clause 3.6) and removing as a breach, failure to comply with a council resolution requiring action in relation to a code of conduct breach (because it is now redundant).
The gifts and benefits provisions have also been updated in response to feedback from some councils.
- the cap on the value of gifts that may be accepted has been lifted from $50 to $100. Though it remains open to councils to keep the more restricted $50 limit.
- items with a value of $10 or less are not “gifts or benefits” and do not need to be disclosed
- benefits and facilities provided by councils (as opposed to third parties) to staff and councillors are not “gifts or benefits”
- the cap on the value of meals and refreshments that may be accepted by council officials in conjunction with the performance of their official duties has been removed
If you need assistance with reviewing your Code, contact Emma Broomfield who is a nominated Code of Conduct reviewer for numerous councils in northern NSW. Emma also offers bespoke training for councillors and Council staff on the Code.