Background Paper
Local representation and
decision making
This Paper has been prepared in response to the Independent
Review’s Terms of Reference, based on available research and
government information.
The purpose of this Paper is to present background information for consideration. It should not be interpreted as a statement of the Panel’s views or an indication of likely recommendations December 2012
Table of contents 1. Purpose of this paper ►
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What do we mean by local representation & decision mak‐
ing? Links with other papers 2. The current situation ►
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7 ‐ 9 10 ‐ 14 Governance models Councillor numbers Election of mayors Remuneration 5. Appendices ►
3 ‐ 6 Lack of diversity in representation Skills of elected representatives Unacceptable councillor behaviour Leadership and influence Changes in participation Community identity 4. Local representation options ►
The governance framework Governance in practice Roles & responsibilities in NSW local government 3. Local Representations issues ►
3 Appendix 1. Councillor numbers specified in legislation for Australian states & territories Appendix 2. NSW popularly elected mayors Appendix 3. Determining mayor and councillor remuneration Appendix 4. Councillor expenses: Comparisons with other states & territories Appendix 5. Elected officials: Overseas comparisons Appendix 6. Roles & responsibilities of councillors & general managers Appendix 7. Roles & responsibilities: Comparisons with other states and territories Appendix 8. DLG Promoting Diversity Strategy Appendix 9. DLG Councillor Development Strategy Appendix 10. Examples of tiered local government Appendix 12. Multiple governance arrangements within a single local government system 15 ‐ 48 15 17 18 19 20 22 25 45 46 47 48 2 Background 1. Purpose of this paper 2. The current situation This paper is provided to support the work of the In‐
dependent Local Government Review Panel. The focus of this paper is local representation and decision mak‐
ing in NSW local government. With this in mind, this paper provides summary information about: ►
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The governance framework for NSW councils and how this encourages local representation and decision making Issues currently impacting on the sector Options to enhance local representation and decision making. What do we mean by local representation and decision making? Local representation and decision making is about providing opportunities for people to have a say on issues that may affect them within their local community. Local government is the level of government closest to the community, and local representation is facilitated by the governance framework that currently exists across the NSW local government sector. Under this framework: ►
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The framework governing the way councils across NSW provide services to local communities includes: Legislation ►
The governance framework Members of the community are elected (by the community) to hold office as councillors Councillors are responsible for making decisions that may affect the social, economic or environ‐
mental health of the community It is the role of councillors to consult with, consider the needs of, and represent the views of the com‐
munity when decisions are made Councillors are accountable to their communities for the decisions they make Community satisfaction with the performance of elected officials is often reflected in the results of local government elections The NSW Local Government Act 1993 (the Act) and the Local Government (General) Regulation 2005 (the Regulation) provide the legal framework under which councils operate. The purpose of the Act includes “encouraging and assisting effective participation of local communities in the affairs of local government” and includes the following provisions relating to local representation and decision making: ► Ways that the community can influence decisions made by council, for example through council meetings, polls and constitutional referendums ► Model code of conduct which guides the perform‐
ance of council officials ► Rules relating to local government elections. Model Code of Conduct A key aspect of local representation and decision mak‐
ing is the Model Code of Conduct for NSW Councils (the Model Code) which sets the minimum require‐
ments of conduct for council officials in carrying out their functions. Councils are required to adopt a code of conduct that incorporates the provisions of the Model Code. The Model Code sets minimum stan‐
dards relating to: ►
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Links with other briefing papers This paper links with the following briefing papers ► Supporting local community needs ► Barriers and incentives to boundary change ► Service delivery and infrastructure ►
General conduct Relationship between council officials Reporting breaches of the Code Conduct review and procedural fairness Personal benefit Access to information and council resources Complaint handling and assessment Conflict of interests Note: A comprehensive review of the Model Code was un‐
dertaken in 2011/12 in consultation with the local govern‐
ment sector and other key stakeholders. The review resulted in minor amendments to ethical standards and the separa‐
tion of administrative procedures, as well as proposed amendments to the Act and Regulation which are currently being considered by the State Government. 3 Governance in Practice1 Guidelines The Division issues guidelines to assist councils in im‐
plementing the requirements of the Act and Regula‐
tion. Examples of guidelines relating to governance include: ►
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Meetings Practice Note Guidelines for Appointment and Oversight of General Managers Payment of Expenses and Provision of Facilities for Mayors and Councillors Integrated Planning and Reporting (IPR) IPR is a new planning and reporting framework being implemented across NSW local government. In order to facilitate local representation and decision making, this framework: Opens the way for councils and their communities to discuss funding priorities and service levels ►
Provides ways in which the local community can participate in decisions made by council ►
Requires the establishment of a Community Stra‐
tegic Plan (CSP), in consultation with the commu‐
nity, which identifies the community’s main priori‐
ties and aspirations for the future ►
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Single tier government is the form of local govern‐
ment that operates within Australia. There is one gov‐
erning body in the local area, allowing for decisions to be made at a local level. A survey undertaken following the 2008 NSW local government elections3 found that: Identifies responsibilities that other agencies (state, community) have in relation to meeting the community’s needs. 35% of councillors were elected for the first time 23% of councillors were elected for the second time 15% of councillors had been a councillor for more than three terms 5 councillors had served for more than 19 years Appendix 1 identifies the numbers of councillors specified within relevant local government legislation. Mayors: Election methods across Australia The table on the following page details mayoral elec‐
tion methods across Australia. NSW councils with a popularly elected Mayor are identified at Appendix 2. A survey undertaken following the 2008 NSW local government elections4 identified that: ►
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77% of Mayors were male Sydney had a higher proportion of female Mayors than non‐Sydney councils (27% and 21% respec‐
Elected officials across Australia State Population2 No. of councils No of elected officials Elected officials per council (average) Population per elected official (average) NSW 7,232,589 152 1513 10 4780 NT 229,711 16 152 9.5 1511 SA 1,644,582 68 714 10.5 2303 TAS 507,643 29 283 9.8 1794 VIC 5,545,932 79 698 8.8 7945 WA 2,293,510 140 1249 8.9 1836 QLD 4,513,850 73 561 7.7 8046 1. In the ACT, the responsibilities normally administered by local government . In other states it is managed by a department of the territory government and
therefore has not been included in this analysis
2. Data Source: ABS: National Regional Profiles ‐ 2010 population estimates 3. Candidates and Councillors 2008: Report on the survey of local government elected members and candidates for elections held in September 2008, Division of Local Government 4. Candidates and Councillors, op. cit. 4 Mayors: Election methods across Australia State Election method % elected by voters NSW Elected by councillors unless changed by application to the Minister or by constitutional referendum 25% NT Principal Member in municipalities chosen by voters; Principal Member in shire councils elected by voters or by councillors 44% Principal Representative (Mayor) elected by voters or (Chairperson) elected by councillors
73% TAS Elected by voters
100% VIC Elected by councillors apart from City of Melbourne and Greater Geelong 3% WA Elected by voters or by councillors 18% QLD Elected by voters 100% SA Remuneration In NSW, the Local Government Remuneration Tribunal determines councillor and mayoral fees. The method for determining fees in Australian jurisdictions is out‐
lined in Appendix 3. In NSW, the following additional allowances are deter‐
mined by each council in accordance with Guidelines for the payment of expenses and the provision of facili‐
ties for Mayors and Councillors. ►
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Travel Legal Attendance at functions Accommodation Insurance Incidental expenses Care and other related expenses Provision of facilities, equipment and services Expenses for spouses, partners and accompanying persons Communication and telecommunications Appendix 4 provides information relating to the pay‐
ment of fees and expenses across Australia. Appendix 5 provides overseas comparative informa‐
Councillor and Mayoral fees: Comparison across Australia Councillors Mayor State Min (pa) allowance $ Max (pa) allowance $ Min total (pa) allowance $ Max total (pa) allowance $ NSW ‐ at 27/04/12
7,740 34,100 15,960 221,280
NT ‐ at 1/1/10
10,935 41,949 29,975 137,153 SA ‐ at 26/08/10
5,000 16,800 20,000 67,200 TAS ‐ at 27/04/12
7,836 30,536 27,426 106,877 VIC ‐ at 30/06/12
7,358 26,188 52,375 83,650 WA ‐ at 30/06/11
2,400 7,000 6,000 14,000 QLD ‐ at 30/06/12
17,144 126,863 72,003 212,581 5. Data sources: NSW: http://www.dpc.nsw.gov.au/__data/assets/pdf_file/0009/141399/2012_Report_and_determination_gazette_copy.pdf NT: http://www.localgovernment.nt.gov.au/__data/assets/pdf_file/0018/110754/Guideline_2 SA: http://www.lga.sa.gov.au/site/page.cfm?c=21389 TAS: http://www.dpac.tas.gov.au/__data/assets/pdf_file/0011/151859/2011_Councillor_Allowances_‐_Oct.pdf VIC: http://www.dpcd.vic.gov.au/localgovernment/guide‐to‐local‐government/how‐councils‐work/about‐councillors WA: http://www.waec.wa.gov.au/pp_candidate/documents/Standing%20for%20Council.pdf 6. Adelaide City Council Lord Mayor allowance is $117,600 7. City of Melbourne allowances are fixed by Order of Council ‐ councillors = $36,360, Mayor = $160,050 5 tion relating to elected officials, mayoral election methods and remuneration levels. Appendix 6 provides additional information relating to roles and responsibilities within NSW local govern‐
ment, while Appendix 7 provides comparative infor‐
mation with other Australian states and territories. Roles and responsibilities in NSW local government ►
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Chairs council meetings Deals with urgent policy making functions Exercises particular functions of the council as the council determines Carries out civic and ceremonial functions ►
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Mayor ►
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Set policy and strategic direction of the Council Determine council policies and pro‐
grams Ensure optimum allocation of re‐
sources Monitor compliance and perform‐
ance of council Oversee the GM (through a standard contract and performance assess‐
ment) Cannot direct other staff (other than the GM) in their day‐to‐day activities ►
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Councillors ►
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Leader of the administrative body Provides the link between the Councillors and staff Responsible for implementing decisions of the govern‐
ing body Responsible for appointing and managing staff ►
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Decision making and exercising of functions Councils make decisions at meetings in accordance with the Act and Regulation. In order to facilitate local representation in the conduct of council functions, the Act identifies minimum requirements for: ►
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Notification of meetings – giving sufficient notice to members of the public Attendance at meetings – anyone is entitled to attend Closed meetings – specific criteria around when a meeting can be closed to the public Meeting procedures, motions and amendments Minutes and access to information. The Act determines that a council can exercise its functions in a number of ways: ►
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By councillors and employees, by agents or con‐
tractors, or through financial provision, provision of goods, equipment, services, amenities or facili‐
ties or by any other means By a committee of the council Partly or jointly by the council and another person or persons Jointly by the council and another council or coun‐
cils By a delegate of the council (which may, for exam‐
ple, be a voluntary Regional Organisation of Coun‐
cils of which the council is a member). General Manager How does this structure encourage local representation and decision‐making? Community members can: ► Nominate to become a councillor ► Participate in council engagement / consultations ► Talk to their elected councillors about local area is‐
sues 6 Local representation issues 3. Issues There are a range of issues currently being faced by the NSW local government sector in relation to local representation and decision making. These issues present questions which may be useful for the Panel to consider as part of its review. Diversity in local representation is particularly critical in cluster areas such as: ►
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Lack of diversity in representation ►
“A typical councillor in NSW is male, over 50, speaks English at home, is a professional, self employed or a primary producer and has previously served on council” 8 Communities across NSW are made up of diverse groups including Aboriginal people, people from a culturally and linguistically diverse (CALD) back‐
ground, and people with a disability. Each of these groups has different needs which should be repre‐
sented effectively within the make‐up of a council. Across NSW the demographic make up of elected councils does not generally reflect the make up of the communities they represent. According to 2008 sta‐
tistics9: ►
Just over a quarter (27%) of councillors are women (approximately half of the population is female) ►
The most common age group of councillors is 50‐
59 years, followed by 60‐69 years (the median age of the population is approximately 37) ►
1.6% of all councillors identified as Aboriginal or Torres Strait Islander (2.2% of the NSW population is Aboriginal or Torres Strait Islander) ►
The first language spoken at home by most coun‐
cillors is English (26% of the NSW population speaks a language other than English at home) ►
3% of all councillors identified as having a disabil‐
ity (4% of the NSW population have identified a need for assistance with self‐care, mobility and/or communication). Inner Middle Sydney, where there are higher pro‐
portions of CALD communities Areas within the Greater Sydney Growth cluster with high CALD populations which are expected to increase even further given projected growth rates Ageing populations in Coastal Communities where the diversity of the resource base for potential candidates is skewed towards older people ►
Inland Regional Towns, some Sydney councils, Ru‐
ral Communities and the Remote Communities where the Aboriginal population is relatively high. The Division of Local Government has attempted to address these issues by implementing a Candidate Diversity Strategy, The strategy aimed to attract a more demographically diverse range of candidates to stand at the September 2012 elections. See Appendix 8 for information about the Promoting Diversity Strategy. How can we ensure local representation within local government reflects the diversity of the population? Skills of elected representatives The following skills have been identified as necessary for elected representatives: ►
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Communication skills Teamwork skills Organisational skills Ability to engage with the community Leadership qualities Problem solving and analytical skills Understanding of relevant State legislation Understanding of local government functions Understanding of social justice principles Ethical and accountable behaviour Understanding of strategic planning, financial plan‐
ning and reporting processes 8. Candidates And Councillors, op. cit. 9. ibid 7 Training and support is provided to councillors by way of a formal induction at the commencement of their term and ongoing support and advice. See Appendix 9 for information about the Division of Local Govern‐
ment’s Councillor Development Strategy. How can we ensure that local government elected representatives possess the required skills? Unacceptable councillor behaviour Unacceptable councillor behaviour costs both the council and the community. A Model Code of Conduct is in place, yet unacceptable councillor behaviour is still an issue across the sector10. The cost of dealing with complaints under the Code of Conduct is borne solely by each council. There is not just a financial cost associated with com‐
plaints made under a council’s Code of Conduct. Un‐
acceptable councillor behaviour has a negative impact on the way that the community views local govern‐
ment, and can potentially prevent people in the com‐
munity from nominating for civic office or participat‐
ing in council decision making processes. The Division of Local Government uses a range of in‐
formation to monitor the performance of local coun‐
cils, including mandatory reporting and complaints received from the public. The Division categorises complaints according to the subject matter of the allegations. Typical issues include: engineering services, environmental services and community services. Complaints received for 2009‐2012 are summarised below: 2009/10: Total complaints ‐ 1029 Issue Land use planning & development matters ►
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Land use planning – these include complaints from both applicants and objectors, and complaints about rezoning issues Misconduct by councils – including allegations of breaches of the council’s code of conduct Council governance issues – including issues about public land management and the conduct of council meetings Enforcement and regulatory powers – complaints that a council is not enforcing development consent conditions, or not acting on evidence of develop‐
ment carried out without consent Mismanagement and maladministration – including complaints about council’s performance and em‐
ployment practices and calls for dismissal Financial management – including rating, charges, budget issues and decisions on allocation of council funding Complaints about operational services – including 25% Misconduct by council 20% Council governance 10% Enforcement & regulatory powers 11% Financial management 5% 2010/11: Total complaints ‐ 1130 Issue Percentage of total Land use planning & development matters ►
Percentage of total 22% Misconduct by council 12% Council governance 11% Enforcement & regulatory powers 10% Financial management 9% 2011/12: Total complaints ‐ 1175 Issue Land use planning & development matters Percentage of total 19% Misconduct by council 13% Council governance 14% Enforcement & regulatory powers Financial management 8% 11% 10. Appendix 10 provides information about the Division’s Intervention Strategy and identifies the range of intervention options engaged by the Division in dealing with unacceptable councillor behaviour. 11. Are Councils Sustainable? Final Report: Findings and Recommendations, Independent Inquiry into the Financial Sustainability of NSW Local Government, 2006 8 The Division may respond to these complaints in a va‐
riety of ways, with some being assessed internally and others referred to the Pecuniary Interest and Discipli‐
nary Tribunal or the ICAC. Since 2003, the Minister for Local Government has initiated Public Inquiries into nine local councils. Seven were subsequently dismissed, one council being inves‐
tigated for alleged incapacity to function was amalga‐
mated and another was placed under a mentoring/
monitoring arrangement with the Division. See Appendix 10 for information about the Division of Local Government’s Intervention and Improvement Framework. What more can be done to prevent unacceptable coun‐
cillor behaviour and improve the community’s confi‐
dence in local representation? Leadership and influence: Roles and responsibilities The role of councillors is more of a strategic role – e.g. setting directions and targets, determining policy, en‐
suring compliance with regulatory requirements, ap‐
pointing and assessing the performance of the General Manager (GM) and ensuring financial accountability, rather than involvement in the day to day operations of the council. Most councillors accept that it is the role of the GM to act as CEO, and their role is predomi‐
nantly as policy makers. However: “In other cases a strong council faction and/or a domi‐
nant mayor act as de facto executive ….. (and) in such cases good relations depend on the willingness of the general manager to accept a subservient role”11 This creates tensions and can result in GMs being forced to make decisions based on politics. Conversely, the situation can occur where the GM does not re‐
spect the role of council as the governing body. Resources, training, information and support are pro‐
vided by the Division of Local Government to assist councillors and the GM to understand their roles and responsibilities (see Appendix 9). However, relation‐
ship conflicts are still an issue across the sector. How can the governance framework prevent conflicts arising between the role of elected representatives and the role of the General Manager? Changes in participation Social media and evolving technologies have changed the way people communicate with each other. More and more, people are willing to embrace new technol‐
ogy and use it as an opportunity for interactive com‐
munication, as opposed to being just passive recipients of content. This change has provided more opportunities to in‐
crease the way that local government engages with its community through, for example: ► Microblogging: eg Twitter ► Social networking: eg Facebook ► Online forums ► Online surveys ► Email Research suggests that 62% of Australians who access the internet have a social media presence . Increasing expectations of the community to be more engaged in the business of their local council have meant that councils need to look at ways of embracing new technologies to facilitate local representation and decision making. Along with the need to meet these increasing expecta‐
tions, there is a level of anxiety among council staff about how the use of social media sits with council record keeping obligations, the potential for litigation if social media is misused and a lack of understanding about how new technologies work. What opportunities are there to use emerging technol‐
ogy to enhance local representation and decision mak‐
ing within the local governance framework? Community identity For many people, the community they identify with is not necessarily the area they live in as determined by local government boundaries. People may identify with, for example: ► the suburb they live in, rather than the whole local government area ► the area where they go to work or where their chil‐
dren go to school ► a whole region, which can be larger than the local government area ► their cultural community How can people engage in decision making at a local government level when they may identify with a par‐
ticular community but do not necessarily live within the local government boundaries? 9 Local representation options 4. Options Governance Models within Category A and are also known as unicities. Unicities are allowed to choose between two govern‐
ance systems: ►
Tiered local government Examples of single tier local government can be seen in Australia, parts of England, Canada and New Zea‐
land. This model allows for decision making at the local level. Responsibility for representing the community can be assigned to local boards or place based commit‐
tees, with the power to make decisions, employ staff and provide services assigned to the varying levels of government within the structure. Two tier or multi‐tier local government occurs where there is more than one governing body operating in an area. This usually involves an upper tier based on the region or metropolitan area, and lower tier/s which cover a small geographic area or neighbourhood. This type of governance structure is common in the UK. Examples of tiered local government in overseas coun‐
tries are provided in Appendix 11. Multiple governance arrangements Multiple governance models can operate within a sin‐
gle local government system and provide different governance options to meet the needs of different communities. Five such governance models for NSW were explored as part of the Destination 2036 initia‐
tive (summarised at Appendix 12). The models were defined by: ► Size of population ► Focus on delivery of services ► Available resources ► Local presence ► Capacity to provide regional services There are examples of multiple governance arrange‐
ments operating within the one system of local gov‐
ernment in other countries. For example, in South Af‐
rica there are three types of municipalities determined by population density, local development, business and industry, and economic activity. Urban areas sit The mayoral executive system – Mayors are elected by the council and can serve a maximum of two five‐year terms; an appointed speaker chairs the meetings not the Mayor ►
the executive committee system –governance is via a small committee elected by the council Community governance “There is a growing level of both interest and practice in experimenting with new ways of working with com‐
munities ... yet there is a wide diversity of views on when and how to involve the community”13 Community governance at the local government level generally involves engaging the community in the deci‐
sion‐making process while keeping the final decision making responsibilities with council. There is a current shift within NSW local government towards more evolved models of community govern‐
ance, which can be seen in the number of councils that are: ►
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Working more closely with community groups on specific issues or projects Devolving the delivery of services to community based organisations (eg children’s services) Engaging with the community regarding land use planning and development control Increasing the level of community engagement Community Boards, sometimes called local boards, are a form of community governance established to sup‐
port the work of a larger regional council. This model of governance can result in enhanced local representation and decision making, as decisions that affect the local community are made by the Commu‐
nity Board, whereas strategic decisions that affect the region as a whole are made at the Regional Council level. 13. Evolution in Community Governance – Building on What Works, Australian Centre of Excellence for Local Government, 2012, page 34 10 Lord Howe Island Board ►
The structure of the Lord Howe Island Board includes elected community representatives and members ap‐
pointed by the Minister for Environment. This struc‐
ture provides a framework for the integration of local and State Government service delivery, with local rep‐
resentation provided by way of the elected represen‐
tatives. In a small community such as Lord Howe Island this structure enables decisions to be made at the local level. A recent review of governance on Lord Howe Island recommended minor changes to the govern‐
ance structure: That the CEO be directly employed by the Board, and that an Islander representative be ap‐
pointed to fulfill ceremonial roles. Village Committees Village Committees currently operate in Tibooburra and Silverton in NSW, and are comprised of members elected by the local community and members nomi‐
nated by the Minister for Primary Industries and Minis‐
ter for Local Government. Village Committees were established because these communities are located in unincorporated areas of NSW ‐ which are not covered by local government ‐ yet needed some local govern‐
ment‐type services. The Village Committees are incorporated under the Associations Incorporation Act 1984 i.e. constituted as incorporated associations having limited liability. The Committees administer local government funding (grants) and provide some local government type ser‐
vices (for example, tourist facilities and water supply). Remote areas The following structure has been proposed for the de‐
livery of services in some specific remote areas of NSW: ►
Local village committees and the local Aboriginal Land Council would form the ‘community’ layer of governance – members would be elected by the local communities ►
A centralised Coordination and Delivery Board with an appointed Commissioner, representatives from the Village Committees, Aboriginal organisations and appointed State Government representatives would be responsible for oversight and coordina‐
tion of service delivery A centralised Administration Office, managed by a CEO, would be responsible for planning, economic development, community services, finance, infra‐
structure, regulation etc. Outback Communities Authority The Outback Communities Authority (OCA) supports communities in outback South Australia and operates as the equivalent of a local council for around two‐
thirds of the state. The OCA consists of government appointed officials, community representatives and state government employees. The OCA charges rates, similar to a council, which are used for infrastructure, water, sewerage and waste management. The OCA operates under a separate Act to the Local Government Act. Indigenous governance There are examples of indigenous governance models operating across Australia, for example the Northern Territory Shire Councils and the Queensland Indige‐
nous Councils. In 2008, the Northern Territory government amalga‐
mated 51 community councils operating in remote indigenous communities into eight new Shire Councils. Up to 12 local community representatives are elected to each Shire Council and additional local boards are established for particular areas or communities. Al‐
most all revenue for the NT Shire Councils comes from government grants or fees for delivering programs funded by government. Only about 3% of revenue is from rates14. Queensland’s Indigenous Councils have operated as discrete local governments since the 1980s. There are 16 Indigenous Councils – two of which are Regional Councils and the remaining 14 are Shire Councils. Councillors are elected by residents every four years, and the councils have the same status as local govern‐
ment authorities under the Local Government Act 2009 (Qld). The Indigenous Councils are heavily reliant on grant funding, predominantly Financial Assistance Grants, the State Government Financial Aid Program and Environmental Health Worker funding15. 14. Local Government Service Delivery to Remote Indigenous Communities, Australian Centre of Excellence for Local Government, 2012 15. ibid 11 Collaborative governance After reviewing a broad range of research and prac‐
tice, Emerson, Nabatchi and Balogh have developed an integrative framework for collaborative governance. They define collaborative governance as follows : “The processes and structures of public policy decision making and management that engage people con‐
structively across the boundaries of public agencies, levels of government, and/or the public, private and civic spheres in order to carry out a public purpose that could not otherwise be accomplished. 16“ Collaborative governance arrangements are often established in response to issues such as rapid urban growth, declining resources and an interdependency of roles and responsibilities. Collaborative govern‐
ance provides opportunities for: ►
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Whole of government planning and delivery of services Distribution of risk Resource sharing Flexibility and responsive service delivery Collaboration on local area and regional strategic planning. Collaborative Governance in South East Queensland is an example of collaboration between state and local governments which has evolved in response to the metropolitan planning needs of South East Queensland. Corporate Board vs Parliamentary Executive Councils in NSW “neither completely mirror NSW and Australian Government arrangements nor parallel corporate decision making processes … in some ways councils operate like a board of directors ….. but council meeting procedures mimic parliamentary pro‐
cedures”17 To address this issue, Allan, Darlison and Gibbs (2001)
18 proposed two governance structures which councils could choose from. These are illustrated in the dia‐
gram below. Providing councils with a choice of these two struc‐
tures would: ►
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Provide for more flexibility and responsiveness to the local situation Provide for separation of powers Result in clearer lines of authority. Corporate Board vs Parliamentary Executive Corporate Board Parliamentary Executive ►
Up to 7 councillors ►
Up to 15 councillors ►
Mayor elected by councillors or electors ►
Mayor elected by electors ►
Mayor would be a non‐executive chair of a board, without the power to direct the GM ►
Mayor would appoint executive committee of three from within the councillors (with the option to second someone from outside of council ►
Council would act as the governing body chaired by the Mayor ►
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Council would operate as a representative chamber that consists of the Mayor and executive commit‐
tee (or cabinet) GM would operate as CEO Would be an electorate of the whole (no wards – referendum would be required for a division into wards) ►
GM would report to the Mayor ►
Would be suitable for large councils (say over 50,000 population) 16. http://www.acelg.org.au/upload/program1/1332994183_Abbott_Final_ACELG_Report.pdf see page 4 17. Modernising Local Government: Discussion Paper, Local Government and Shires Association of NSW, 2010 18. Are Councils Sustainable?, op. cit. 12 Councillor Numbers ►
A range of options have been identified as a result of research and analysis of governance models across Australia and overseas: ►
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Allow councils to reduce their numbers without holding a constitutional referendum Reduce the maximum number of councillors for all councils Enable an independent tribunal to set councillor numbers Prescribe a maximum number of councillors based on population (see table below) Population Max councillor nos. The University of Birmingham20 conducted a literature review and analysis on council size, and recommended that the following factors be considered in determin‐
ing councillor numbers: ►
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> 200,000 15 100,000 — 200,000 13 ►
50,000 — 100,000 11 ►
10,000 — 50,000 9 5,000 — 10,000 7 ►
< 5,000 5 ►
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The Framework for the Assessment of Councillor Num‐
bers in Tasmania19 recommends a three stage process for determining councillor numbers involving the con‐
sideration of: ►
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The population of municipal areas, having regard to the broad types of councils that exist Additional factors relating to the performance of the role of councillor The views of the Council itself and any specific local considerations. The framework recommends that the following indica‐
tors should also be taken into consideration: ►
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Population per kilometre of council road Socio‐economic status of the municipal area Number of planning and building approvals granted by the council Total commercial, industrial and primary produc‐
tion assessed annual value of the municipal area Total value of the council’s assets and total expen‐
diture of the council. Population density and distribution and changes in patterns of population dispersal Population socio‐demographic characteristics – affluence and deprivation The rural and urban nature of councils and the is‐
sues they face The geographical size of villages, towns and cities An assessment of community identity, cohesion, homogeneity and diversity Travel patterns, within and outside the council area The strength or weakness of the local economy Social, economic and political relationships with hinterland areas Levels of political engagement amongst local com‐
munities The longevity of political control of councils Political stability, relationships between parties and between councillors and officers. Election of Mayors Constitutional referendum results held in NSW since 1995 show clear community support for adopting a popularly elected Mayor. All of the 21 referenda since 1995 that proposed a change in method of election of the Mayor to a popularly elected Mayor were success‐
ful. Arguments for popular election of mayors ►
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Enhances democracy and local representation – direct elections empower communities Provides better accountability ‐ the mayor is more accountable if popularly elected Provides stability ‐ councillors cannot remove a di‐
rectly elected mayor 19. Review of Councillor Numbers Report, Local Government Board Tasmania, 2012 http://www.dpac.tas.gov.au/__data/assets/pdf_file/0009/168714/
LGB_Final_Report_Review_Councillor_Numbers.pdf 20. Council Size: Literature Review and Analysis: Report to the Electoral Commission, the University of Birmingham School of Public Policy Institute of Local Govern‐
ment Studies, April 2005, page 1 13 Arguments for election of mayor by councillors ►
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A popularly elected mayor without the support of other councillors can lead to decision‐making ‘paralysis’ of council Councillors may be better qualified to choose their leaders, thus enhancing the status of the leader and the cohesiveness of the team Councillors may be best positioned to know when to withdraw support for the mayor Mant21 (2005) argues that larger councils in NSW should be given the option of an Executive Mayor structure which would afford a greater separation of powers. This structure is common in the US, where the Mayor is the CEO of the council and senior council staff are political appointments who report directly to the CEO (Mayor). The Mayor of the Greater London Authority (GLA) is directly elected by voters, as is the separate elected Assembly. The Mayor sets budgets for the GLA, Trans‐
port for London, the London Development Agency, the Metropolitan Police and London’s fire services. The Mayor also prepares transport, infrastructure, eco‐
nomic and environmental development strategies. The Assembly oversees the Mayor’s performance and in‐
vestigates issues of importance to Londoners.22 There are arguments that councillor remuneration should be attached to attendance at Council meetings and tied to agreed performance criteria. Support for increased remuneration needs to be bal‐
anced against the role of councillor as a community service role, which was never intended to be treated as ‘employment’. Remuneration The 2006 Independent Inquiry into the Financial Sus‐
tainability of NSW Local Government recommended: “Under the existing council governance structure … councillors should be treated more like statutory body board members and more adequately remunerated, perhaps in the form of a fixed salary plus expense al‐
lowance rather than a fee and reimbursement of ex‐
penses” 23 Increasing councillor remuneration may encourage more members of the community to take on the role of local representative and therefore offer: ► A more diverse choice of candidates ► A larger number of candidates ► More highly skilled candidates. Another option would be to enable the Local Govern‐
ment Remuneration Tribunal to set an annual fee for the whole of council. Councils would then divide the fee by the number of councillors. 21. Modernising Local Government, op. cit. 22. ibid 23. Are Councils Sustainable?, op. cit. 14 Appendix 1. Councillor numbers specified in legislation for Australian states and territories New South Wales Tasmania Section 224, Local Government Act 1993 ► A council must have at least five and not more than 15 councillors (one of whom is the mayor). ► Not less than 12 months before the next ordinary election, the council must determine the number, in accordance with subsection (1), of its councillors for the following term of office. ► If the council proposes to change the number of councillors, it must, before determining the num‐
ber, obtain approval for the change at a constitu‐
tional referendum. Section 25, Local Government Act 1993 ► A council consists of persons elected in accordance with Part 4. ► A person elected to a city council is a councillor but may be known as an alderman. ► The number of councillors for each council is speci‐
fied in column 3 of Schedule 3 next to the name of that council. (note: the range is between 9 and 12 councillors) ► The Governor, on the recommendation of the Min‐
ister, may amend or substitute column 3 of Sched‐
ule 3 in an order made under section 214E relating to councils to give effect to that order. Northern Territory Local Government Act 2008 ► Part 2.2 ‐ the Administrator may, by Gazette no‐
tice, determine or change the number of members to be elected for a particular area of a ward within a particular area. ► Part 4.2 ‐ a council consists of the members elected or appointed to the council from time to time under this Act. South Australia Section 12, Local Government Act 1999 ► Chapter 3 Part 1 Division 1‐ the Governor may, by proclamation, determine the composition of a council (for example, by making provision about the principal member of a council and about the number of councillors for a council and, if a council has wards, the number of councillors to represent each ward), or alter the composition of a council. ►
Chapter 3 Part 1 Division 2 – a council may, by no‐
tice in the Gazette after complying with the re‐
quirements of this section, alter the composition of the council. Victoria Section 5B, Local Government Act 1989 ► A council must consist of not fewer than five coun‐
cillors and not more than 12 councillors ► A council may be constituted so that it consists of: ‐ only Councillors elected to represent the municipal district as a whole; or ‐ only Councillors elected to represent individual wards into which the municipal district is divided. Queensland Section 32, Local Government Act 1993 ► The number of councillors for a local government is the number prescribed for the local government under a regulation. Note ‐ This is a reviewable local government mat‐
ter and requires a report and recommendation by the commissioner before implementation. ► However, if no number is prescribed under a regu‐
lation, the number is five. 15 Western Australia Section 2.17, Local Government Act 1995 ► If the method of filling the office of mayor or president is election by electors, the council is to consist of — ‐ the mayor or president; and ‐ not less than five nor more than 14 council‐
lors one of whom is to hold the office of dep‐
uty mayor or deputy president in conjunction with his or her office as a councillor. ► If the method of filling the office of mayor or president is election by the council, the council is to consist of not less than six nor more than 15 councillors of whom — ‐ one is to hold the office of mayor or presi‐
dent as well as the office of councillor; and ‐ another is to hold the office of deputy mayor or deputy president as well as the office of councillor. ► If the council has 15 councillors and a decision is made under section 2.11(2) to change the method of filling the office of mayor or president to election by electors, the council may, despite subsection (1)(b), continue to have 15 councillors after the decision has effect. 16 Appendix 2. NSW popularly elected mayors ►
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Ballina Bellingen Botany Bay Broken Hills Burwood Byron Canada Bay Canterbury Cessnock Coffs Harbour Eurobodalla Fairfield Greater Taree Griffith Hornsby Hunters Hill Kempsey Lake Macquarie Lismore Lithgow Liverpool City Maitland Manly Mosman Nambucca Newcastle North Sydney Port Macquarie Port Stephens Queanbeyan Richmond Valley Shoalhaven Singleton Snowy River City of Sydney Warringah Willoughby Wollongong 17 Appendix 3. Determining mayor and councillor remuneration Mayor and councillor remuneration is determined by different means across Australia. State/Territory Means of determination Comments NSW Local Government Remuneration Tribunal 7 categories City of Sydney is in the highest category Northern Territory Minister for Local Government 6 categories Darwin City Council is in the top category South Australia Minister for State/Local Government Relations Same for all councils with the exception of City of Adelaide Tasmania Independent review process agreed between the Local Government Association of Tasmania and the State Government
7 bands of allowances Hobart is in the top band Victoria State Government (City of Melbourne is administered separately under the City of Melbourne Act) 3 categories Western Australia Allowances are in accordance with meeting attendance determined under the Act Payment per meeting attended Mayors/Presidents are paid an additional allowance Queensland Queensland Local Government Remuneration Tribunal 10 categories Gold Coast City Council is in the top category 18 Appendix 4. Councillor expenses: Comparisons with other States and Territories Source: Councillors and General Managers: A Comparison of Jurisdictions, Division of Local Gov‐
ernment June 2011. How councillor expenses are paid Most jurisdictions require councils to have a current, adopted policy on councillor expenses and facilities, or encourage this. This is to ensure that councillors are reimbursed for expenses incurred and are pro‐
vided with adequate facilities to perform their civic duties. Where there is a policy it must be publicly available. Many jurisdictions, except New South Wales and Queensland, additionally prescribe mandatory ex‐
penses and facilities in regulations including most commonly travel/mileage, accommodation, child/
dependant care, telecommunications/ internet and insurance. Prescribed facilities are less common but include vehicle for the mayor (in New Zealand includ‐
ing full private use), telecommunications equipment and computer and administrative support. As with New South Wales, most jurisdictions require annual reporting of councillor expenses and facilities. In contrast, neither New South Wales nor Queensland prescribe specific expenses and facilities in the Act or regulations. In New South Wales, guidelines produced by the Division of Local Government, suggest appro‐
priate expenses (travel, accommodation, conferences, training, care, telecommunications, insurance, legal costs) and facilities (telecommunications equipment, administrative support, stationery, vehicle) but it is up to a council whether to include these in their policies. Queensland simply prescribes a policy in accordance with the principles outlined in its Act. Queensland formerly had mandatory guidelines on councillor ex‐
penses and facilities but they were revoked after the Local Government Act was amended in 2010. New South Wales is the only jurisdiction that pre‐
scribes guidelines and, through regulation or the guidelines, specific principles and processes for inclu‐
sion in policies. These include consideration of access and equity, transparency and accountability, no gen‐
eral allowances, approval, reconciliation and reim‐
bursement process, clear limits, no private use of fa‐
cilities unless approved and reimbursement process (South Australia also does the latter). New South Wales is the only jurisdiction that pre‐
scribes a mandatory annual review process including public exhibition of a draft policy for comment and submission of the policy to the Division. South Austra‐
lia requires a policy review after a general election. New South Wales also prescribes the most detailed reporting of councillor expenses and facilities (although South Australia’s Register of Allowances and Benefits must list all fees, expenses and facilities provided to councillors). It is noted that Victoria prescribes provision of ex‐
penses for website development. No jurisdictions, apart from New South Wales and Western Australia, appear to have guidance for the provision of legal expenses. Western Australia pro‐
vides separate non‐mandatory guidelines on legal representation for council members and employees. In Queensland the Minister can, following the re‐
quired notice period, issue an order to revoke a policy and order the council to redo it. Following a tribunal recommendation, the Minister can order remedial action such as repayment of councillor expenses if appropriate. In Western Australia councils may resolve to pay an annual allowance for a particular expense type to the maximum limit. Other expenses may be approved to a limit set by the council. New Zealand also allows some form of an expense allowance. In conclusion, New South Wales appears to have the most flexible yet accountable process for reimburse‐
ment of expenses and provision of facilities to coun‐
cillors. This is because while mandatory principles and processes are prescribed, specific expenses, facilities, standards and limits are not. The annual policy review process that applies in New South Wales is more fre‐
quent and therefore more resource intensive than that required in other jurisdictions. 19 Appendix 5. Elected officials: Overseas comparisons Elected officials ‐ overseas comparisons Population No of Councils No of elected officials Elected officials per council (average or range) Population per elected official (average) New Zealand24 4,433,928
78 1040 13.3 4,263
Auckland25 1,303,068
1 21 21 62,051
Vancouver26 578,000
1 11 11 52,545
Sheffield27 555,500
1 84 84 6,613
France28 8 to 14 118
Sweden29 8 to 14 256
UK30 49 2,603
Ireland31 8 to 14 2,336
Wales32 30 to 75 1,750
Elected of Mayor ‐ overseas comparisons Location Election method for mayor % elected by voters New Zealand Regional Council Chairs elected by councillors; City and District Mayors (including Auckland) elected by voters 86% Vancouver Mayor elected by voters 100% Sheffield Leader is elected by councillors. In 2012 a Mayoral referendum was put to the vote; 65% voted to retain the system of a councillor elected Leader while 35% voted for a Mayor elected by the voters. 0% 24. http://www.stats.govt.nz/tools_and_services/tools/population_clock.aspx 25. http://www.stats.govt.nz/Census/2006CensusHomePage/QuickStats/AboutAPlace/SnapShot.aspx?id=1000002&type=region&ParentID=1000002 / Auckland has 1 main council and 21 local boards, 1 Mayor, 20 Councillors and 149 local board members 26. http://vancouver.ca/aboutvan.htm 27. https://www.sheffield.gov.uk/your‐city‐council/sheffield‐profile/population‐and‐health.html 28. How many elected representatives does local government need? A review of the evidence from Europe, Cathie Marsh Centre for Census and Survey Research University of Manchester, 2008 (data for France, Sweden, UK, Ireland and Wales) 29. ibid 30. ibid 31. ibid 32. ibid 20 Overseas Comparisons – Remuneration of Councillors and Mayors (in Australian Dollars as at 4/9/12) Councillors Mayor Location Min (pa) allowance $ Max (pa( allowance $ Min (pa) allowance $ Max (pa) allowance $ New Zealand District Councils33 (excludes Auckland) 8,338 50,977 45,577 124,500 New Zealand Regional Councils34 (excludes Auckland) 10,128 55,093 46,980 108,017 Auckland Councillors and Mayor35 63,579 189,803 Auckland Local Board Members and Chairperson36 15,976 29,488 30,918 62,313 Vancouver37 63,803 144,813 Sheffield38 18,231 28,207 33. info@remauthority.govt.nz 34. ibid 35. ibid 36. Ibid 37. http://vancouver.ca/ctyclerk/mayorcouncil/remuneration.htm 38. Sheffield: https://www.sheffield.gov.uk/your‐city‐council/sheffield‐profile/population‐and‐health.html 21 Appendix 6. Roles and responsibilities of Councillors and General Managers (NSW) Source: Councillor Handbook, Division of Local Government. COUNCIL’S GOVERNING BODY Councillors Setting strategy Monitoring performance Providing policy framework Allocating financial resources COUNCIL’S ADMINISTRATIVE BODY General Manager and staff A good working relationship between councillors, the mayor, the general manager and other council staff is fundamental to an effective council. Councillors must also have an understanding of how to manage exter‐
nal relationships, with the community, the media, and other organisations including State Agencies. Role of a councillor The Act divides the role of a councillor into two broad categories: As a member of the governing body to: ►
►
Implementation of strategy and policy Ensuring compliance Role of the elected council The elected council’s role may be compared to that of the board of a public company, in so far as it oversees the activities of the council but is not involved in the day‐to‐day running of the council. A key difference is that the “shareholders” are the local community. They are larger in number and have more diverse needs and expectations than most public companies. Many councils also delegate functions to specialist committees that include councillors, council staff and members of the public. These committees provide councillors with the opportunity to participate in council decision‐making at a more detailed level. Councils employ staff to administer the council. The general manager is the most senior member of staff and is responsible to the council for carrying out council decisions and policy and overseeing the day‐
to‐day operation of the council. The general manager provides the link between the elected council and its employees. While all council staff have a duty to carry out council decisions they are responsible to the general manager, not the coun‐
cillors. Individual councillors cannot direct staff in their day‐to‐day activities. The importance of trust and mutual respect within the council team and between council and senior man‐
agement cannot be underestimated. ►
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Direct and control the affairs of the council in ac‐
cordance with the Act Develop the Community Strategic Plan and other long term planning documents Allocate ratepayers’ money efficiently in the best interest of the community Make sound financial decisions to ensure the long term sustainability of council Develop and review council’s policies and objec‐
tives Review council’s performance and its delivery of services. As an elected person to: ►
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make decisions in the best interest of the whole community and not a particular interest group represent the interests of all residents and rate‐
payers provide leadership and guidance to the commu‐
nity facilitate communication between the community and the council. What does a councillor do as a ‘member of the governing body? One of the most important roles of a councillor is to participate in policy decision‐making on behalf of the community. This involves working as part of a team of councillors to make decisions and policies that guide the activi‐
ties of the council. Policies can be defined as the prin‐
ciples and intent behind the programs that a council implements. 22 This includes setting the broad, strategic direction for the local community. To do this councillors have to understand their community, its characteristics and needs, the types of services required to meet these needs. The key responsibilities of the council’s governing body in working with and through the general man‐
ager are to: ►
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Prepare and adopt the Community Strategic Plan, Delivery Program and Operational Plan Develop the policy framework for their council in relation to the council’s regulatory functions Develop and oversee the delivery of the council’s strategic plans that shape the future direction for the local area Make sure that taxpayers’ money is spent in the best interest of the community Make sure that the council is fulfilling its regula‐
tory functions appropriately by developing policies Make sure that the general manager, through per‐
formance measurement in his or her employment contract, carries out all of council’s policies, plans and strategies appropriately. Provide accountability to the community by re‐
porting on the outcomes of council’s activities Monitor and review the performance of the coun‐
cil. Council will benefit by analysing its activities from time to time, including asking how is it spending its time, where should its priorities be and does it have the balance of its priorities right? What does a councillor do as an elected representative? A councillor’s role as an elected representative is to provide an essential link between the community and council. This involves representing the interests of the com‐
munity, providing leadership, and communicating and promoting the interests of the council to other levels of government and relevant bodies. Councillors have a responsibility to make decisions in the best interest of the whole community while de‐
ciding about the provision of services and the alloca‐
tion of resources. Councillors also need to provide leadership and guid‐
ance to the community. This is especially important when communities face challenges, such as climate change, drought, high unemployment or skill short‐
ages. How do councillors balance their dual roles? Councillors must attempt to find a balance between the obligation to represent the interests of individual constituents and the need to make decisions on be‐
half of the whole community. This dilemma can cause some interesting debates in council. Councillors need to display leadership and integrity to help ensure that the decisions they make as a mem‐
ber of the governing body are in the best interest of all the community. Councillors can best help individual members of the community by satisfying themselves that their coun‐
cil’s policies are being carried out correctly. If a coun‐
cillor thinks that a policy needs changing they need to debate this in a full meeting of council. It is inappro‐
priate for a councillor to informally attempt to ignore or alter a policy in order to satisfy the demands of special groups. The community expects every councillor to provide representation to all council activities and responsi‐
bilities it is important that councillors quickly become familiar with the whole council area and the impor‐
tant issues affecting their community. Appointment and oversight of the General Manager The Local Government Act 1993 requires the govern‐
ing body of council to determine: ►
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An organisation structure The senior staff positions within that structure The resources to be allocated towards the em‐
ployment of staff. The Act also requires all councils’ governing bodies to appoint a person to be general manager. “Guidelines for the Appointment and Oversight of General Managers” have been prepared by the Divi‐
sion of Local Government, the Local Government and Shires Associations of NSW (LGSA) and the Local Government Managers Association (NSW) (LGMA). The Guidelines provide a guide and checklist for councillors to refer to when considering: ►
►
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The recruitment and appointment of general man‐
agers Re‐appointment of general managers or ending contracts Conducting performance reviews of general man‐
agers Engaging in the day to day oversight of general managers. 23 The Guidelines aim to promote a consistent approach across NSW councils to the recruitment, appoint‐
ment, and oversight of general managers. The Guide‐
lines are issued under section 23A of the Local Gov‐
ernment Act 1993 and must be taken into considera‐
tion by councillors when exercising functions related to the recruitment, oversight and performance man‐
agement of general managers. The Guidelines are available on the Division of Local Government’s web‐
site at www.dlg.nsw.gov.au. Role of the mayor The mayor is considered to be the voice of the council and the leader of the community. The mayor has the same role and responsibilities as councillors with a few extra responsibilities. Under the Local Government Act, the role of the mayor is to: ►
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Chair meetings of the council Exercise urgent policy‐making functions, where necessary Exercise such other functions as determined by the council Carry out civic and ceremonial functions of the mayoral office. Role of the general manager The general manager’s role is to implement council decisions without undue delay and carry out functions imposed by legislation ►
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Appointing, directing and dismissing staff in accor‐
dance with an organisational structure and re‐
sources approved by the council Ensuring councillors are provided with information and the advice they need in order to make in‐
formed decisions and to carry out their civic duties Implementing council’s equal employment oppor‐
tunity management plan Exercising other functions as delegated by the council. A governing body of council may, by a resolution, delegate certain functions to the general manager. The general manager may, in turn, delegate functions to other staff with some exceptions. However, the general manager still retains responsibility to ensure that any sub‐delegated function is carried out appro‐
priately. Role of council staff General manager’s employ council staff to carry out the day‐to‐day operations of the council and imple‐
ment council policies and other decisions, as directed by the general manager. A council’s governing body monitors the implementa‐
tion of its decisions via reports by the general man‐
ager to council. The general manager is the most senior employee of a council and is the only member of staff selected and appointed by councillors. The general manager is ap‐
pointed on a renewable, fixed term, performance‐
based contract for a maximum period of five years. Under the Act the general manager’s responsibilities include: ►
►
Assisting the council in connection with the devel‐
opment and implementation of the Community Strategic Plan, council’s Resource Strategy, Deliv‐
ery Program and Operational Plan and the prepa‐
ration of its annual report and state of the environ‐
ment report. Efficient and effective operation of the council or‐
ganisation and day‐to‐day management. This in‐
cludes ensuring council decisions and policies are implemented without undue delay 24 Appendix 7. Roles and responsibilities: Comparisons with other States and Territories Source: Councillors and General Managers: A Com‐
parison of Jurisdictions. Division of Local Government June 2011. In contrast, Victoria and New Zealand do not have any provisions which specifically outline the role of indi‐
vidual councillors. In addition, in New South Wales the role of councillor is tied to the Integrated Planning and Reporting Framework (e.g. civic leadership fea‐
tures in the legislation). This is not a feature of any other state legislation at this point in time. The role of individual councillors on a council The role of individual councillors on a local council is defined in almost all states’ local government legisla‐
tion. However, the degree to which that role is legis‐
lated varies. For those states that have legislated the role of coun‐
cillors, the strongest themes that emerge in the provi‐
sions are those of ‘representation’, ‘leadership’ and ‘communication’. While expressed in slightly different terms, these themes represent similarities across the states. The theme of ‘representation’ features in the legisla‐
tion of New South Wales, Tasmania, South Australia, and Queensland. In New South Wales and Tasmania, councillors are required to represent and promote the interests of the community. In South Australia, councillors are required to represent the interests of their residents and ratepayers. In Queensland, the current and future interests of residents are to be represented by councillors. The theme of ‘leadership’ features in the legislation of New South Wales, Queensland, Western Australia, and South Australia. As an elected person in New South Wales, councillors are to provide leadership and guidance to the community. In Queensland, this role extends to provide leadership to the local gov‐
ernment, and the community. In Western Australia, the role of councillors is expressed as a requirement to provide leadership and guidance to the community in the district. The concept of ‘communication’ features in the legis‐
lation of New South Wales, Tasmania, Western Aus‐
tralia, and South Australia. The wording of the provi‐
sions across jurisdictions are identical, that is, a re‐
quirement to facilitate communication between the community and council. Acting in the best interests, or in the interests of the community, was also a theme that featured in the legislation across the states. States have slight differ‐
ences in the matters included, for instance, South Australia, New South Wales and Tasmania include provisions about resource allocation. Legislative provisions NSW Source: Local Government Act 1993 What is the role of a Councillor? S232 1) The role of a councillor is, as a member of the governing body of the council: ► to provide a civic leadership role in guiding the development of the community strate‐
gic plan for the area and to be responsible for monitoring the implementation of the council’s delivery program ► to direct and control the affairs of the council in accordance with this Act ► to participate in the optimum allocation of the council’s resources for the benefit of the area ► to play a key role in the creation and review of the council’s policies and objectives and criteria relating to the exercise of the coun‐
cil’s regulatory functions ► to review the performance of the council and its delivery of services, and the delivery program and revenue policies of the coun‐
cil. 2) The role of a councillor is, as an elected person: ► to represent the interests of the residents and ratepayers ► to provide leadership and guidance to the community ► to facilitate communication between the community and the council. 25 Legislative provisions QLD Source: Local Government Act 2009 Responsibilities of Councillors S12 1. A councillor must represent the current and future interests of the residents of the local government area. 2. All councillors of a local government have the same responsibilities, but the mayor has some extra responsibilities. 3. All councillors have the following responsi‐
bilities— a. ensuring the local government— i. discharges its responsibilities under this Act; and ii. achieves its corporate and com‐
munity plans; and iii. complies with all laws that apply to local governments; b. providing high quality leadership to the local government and the community; c. participating in council meetings, policy development, and decision making, for the benefit of the local government area; d. being accountable to the community for the local government’s performance VIC SA Source: Local Government Act 1999 Roles of members of council S59 WA Source: Local Government Act 1995 S2.10 Role of Councillors A councillor — a. represents the interests of electors, ratepay‐
ers and residents of the district; b. provides leadership and guidance to the community in the district; c. facilitates communication between the com‐
munity and the council; d. participates in the local government’s deci‐
sion making processes at council and com‐
mittee meetings; and e. performs such other functions as are given to a councillor by this Act or any other writ‐
ten law. No specific provisions outlining the role of individual councillors. TAS Source: Local Government Act 1993 NZ S28 a. as a member of the governing body of the council — i. to participate in the deliberations and civic activities of the council; ii. to keep the council's objectives and policies under review to ensure that they are appropriate and effective; iii. to keep the council's resource alloca‐
tion, expenditure and activities, and the efficiency and effectiveness of its ser‐
vice delivery, under review; b. as a person elected to the council — to represent the interests of residents and ratepayers, to provide community leadership and guidance, and to facilitate communication between the community and the council. Functions of Councillors 2) A councillor, in the capacity of an individual councillor, has the following functions: a. to represent the community; b. to act in the best interests of the com‐
munity; c. to facilitate communication by the council with the community; d. to participate in the activities of the council; e. to undertake duties and responsibilities as authorised by the council. Role of individual councillors not specified in legislation. However stated in individual codes of conduct as being responsible for representing the interests of the residents and ratepayers of the council's district.
The obligations of individual councillors on a Council There are a number of similarities across jurisdictions that relate to codes of conduct. New Zealand and all states, with the exception of Queensland, require councils to develop and adopt a code of conduct that outlines the standards of conduct expected of coun‐
cillors. There are some states that prescribe some matters to be included in a code of conduct. A few states, along with New South Wales, also have an 26 obligation in the legislation that councillors must con‐
duct themselves in accordance with the code of con‐
duct. There are a number of differences across jurisdictions that relate to code of conduct. Only NSW has a man‐
datory minimum Model Code of Conduct. Some states have specific standards of conduct outlined in their Acts or in a Regulation. A number of jurisdictions have provided for the inclusion of these standards in coun‐
cil codes of conduct. One state has legislated the re‐
quirement to have a code of conduct that specifically applies to councillors only. There are a number of similarities across jurisdictions that relate to councillor obligations. The following comments relate to obligations that have been ex‐
pressly provided in the relevant Acts, and do not in‐
clude a comparison of obligations in each code of con‐
duct or in the Regulations. All states have provisions requiring councillors to dis‐
close and manage conflict of interests. In some cases these are only pecuniary interests, and in others these are both pecuniary and non‐pecuniary interests. With the exception of Queensland and Tasmania (unless this requirement is included in a Regulation), states require councillors to submit primary and annual re‐
turns of interests. The majority of states have provi‐
sions relating to the use of information and release of confidential information. The majority of states also have provisions relating to the direction and improper influence of staff. Two other states have a require‐
ment for councillors to act with care and diligence, similar to New South Wales s439 of the Local Govern‐
ment Act 1993. There are a number of differences across jurisdictions that relate to obligations. The following comments relate to obligations in each Act. The most striking difference between the New South Wales legislation and other states is that other states have tended to legislate prescribed standards in their Acts, rather than take the New South Wales approach of a mini‐
mum mandatory Model Code of Conduct. However, it is noted that some states have made provision for council codes of conduct to contain certain provisions that may be in the Act or Regulation. All states except New South Wales and Western Aus‐
tralia require councillors to make a formal undertak‐
ing of some sort before they can take up office. In those cases, councillors cannot hold office if they do not make the undertaking. In some states the council‐
lors’ duties or role are written as obligations. New Zealand and most other states, with the excep‐
tion of Western Australia and Tasmania, have provi‐
sions in their legislation for both pecuniary and non‐
pecuniary conflict of interests. In New South Wales non‐pecuniary conflict of interests are regulated by the Model Code of Conduct. Every state uses different terminology to describe types of personal interests. They are described as: direct and indirect interests, conflicting personal interests, material personal inter‐
ests, direct or indirect pecuniary benefit or detriment, or proximity interests. Victoria is the only state that requires written returns of interests more often than annually. In that case, returns of interests are required twice a year. As stated above, Tasmania and Queensland do not ap‐
pear to require the lodgement of returns of interests. Some states have details about what is required in the written returns as part of the Act provisions. In addi‐
tion, there are obligations in relation to the provision and use of information that is contained in the regis‐
ter of returns and the inspection of the register. An odd provision in two states, Tasmania and Western Australia, allows councils to determine whether coun‐
cillors can remain and participate in a matter in which they have disclosed a conflict of interests. In Queen‐
sland, the opposite approach applies with provisions that allow other voting members on committees and councillors to direct a councillor to not participate in a matter because they decide that the councillor has a conflict of interests. There are some other differences that are peculiar to only one state, for example, specific requirements in relation to the use of funds, loan decisions, borrowing decisions and representing the policy decisions of the council. In Queensland, the Act provides a positive obligation of a duty to report councillors’ interests or misconduct. Only Western Australia has not legislated in relation to the misuse of information. Under New Zealand legislation a person cannot serve as a council‐
lor if they are in a contractual relationship with coun‐
cil over a specified value. All other states allow councils to make local laws or by‐laws. In one state the Act states that local laws ap‐
ply to councillors and if breached become a conduct breach. It is unclear about the relationship of local laws/by‐laws to councillor obligations in other states. Some states do not rule out that councils may make local laws relating to councillor conduct. In conclusion, New South Wales is the only state with a mandated Model Code of Conduct. Other states make provision for standards of conduct through their 27 Acts or Regulations, in some cases these are to be incorporated into any code of conduct adopted by a council. Most of the general obligations on councillors are similar to those in New South Wales (either contained in the legislation or in the Model Code). The stand out exception is the requirement for councillors to make some form of undertaking when they are elected to office. Additionally, two states have written their councillor duty or role as obligations that they are required to undertake in their position as councillors. There are ranges of ways of describing private inter‐
ests and there are various degrees of detail provided to regulate how conflict of interests are disclosed and managed. Obligations of councillors Source: Local Government Act 1993 NSW ►
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Ombudsman Act 1974 ICAC Act 1988 s7: councillors to have regard to ecologically sustainable development principles in carrying out responsibilities s352: councillors cannot direct staff as to the content of any advice or recommendation s439: councillors required to act honestly and exercise a reasonable degree of care and diligence s440: councillors required to comply with provisions of code of conduct; councillors must not conduct them‐
selves in a manner that is likely to bring the council or holders of civic office into disrepute; further conduct obligations outlined in Schedule 6A that are to be in‐
cluded in the code of conduct s444: councillors must prepare and submit written re‐
turns of interests and disclose pecuniary interests in ac‐
cordance with relevant provisions of the Act s449: requires the lodgement of primary and annual re‐
turns of interests (30June) s451: requires the disclosure and management of pecu‐
niary interests s652: not to act in civic office while disqualified s660: not obstruct listed persons in the exercise of any function under an Act or Regulation s664: not disclose or misuse information for advantage s666: must not wilfully destroy or alter council records s440 Regulations may prescribe a model code of conduct that councils must adopt and can supplement QLD Source: Local Government Act 2009 Ombudsman Act 2001 Integrity Act 2009 Crime and Misconduct Act 2001 No codes of conduct. The Local Government Act 2009 pre‐
scribes certain principles and responsibilities, the breach of which is a breach of the Act. ►
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S12: Worded as obligations on councillors and does not just describe a councillor’s role. Particularly section 12
(1) which requires that councillors “must” represent etc. S109: Provides for obligations in relation to the use of a councillor’s discretionary funds s111: Provides an obligation on councillors jointly and severally to not make loans to an individual s112: Provides an obligation on councillors jointly and severally to not make improper borrowings Division 5 covers the following obligations: ► Must make a declaration of office ► No direction to local government employees, other than Mayor giving direction to CEO ► Relating to obtaining and using information ► Manage material personal interests in matters before council ► Manage conflict of interests in matters before council ► Duty to report interests or misconduct of others ► [there are local laws and local laws about conduct are not prohibited. There needs to be a register kept of local laws] SA ►
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Local Government Act 1999 Ombudsman Act 1972 S60: Must make an undertaking before attending first meeting S62: Councillors must conduct themselves: ► honestly, with reasonable care and diligence ► use information appropriately ► not use position to gain directly or indirectly or for advantage s65/66: Requirement to lodge returns of interests (primary and ordinary – annually 30 June) s69: To not submit false or misleading returns of inter‐
ests s71: Not publish or comment on information from Register of Returns if unfair or inaccurate s74: Must disclose and manage conflict of interests s63 councils must prepare and adopt a code of con‐
duct – regulations may prescribe mandatory provi‐
sions 28 VIC ►
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TAS s63: Must take an oath of office s66B: Must not perform duties or functions of a council‐
lor while on a leave of absence s76B/s76BA: Primary principles of conduct and general councillor conduct principles: ► In exercising functions; integrity, impartiality ► no improper advantage or disadvantage ► avoid conflicts ► honesty, respect, care and diligence, lawfully ► prudent use of public resources ► support and promote principles s76D/76E/77: councillors must not misuse position for advantage or detriment to others includes: ► misuse of information (including confidential disclo‐
sure) ► directing, improper influence of staff ► acting without authority ► misusing council resources ► failure to disclose interests s77A to 78E/s79/s80A: Requires the management of direct and indirect interests and conflicting personal interests s81: Requirement to lodge return of interests (primary and ordinary returns – required twice a year 30 June and 31 December). s76C – provides that councils must develop a code of conduct There are local laws and it is unclear whether council‐
lors can breach these and if so whether this amounts to misconduct WA ►
Source: Local Government Act 1989, Ombudsman Act 1973 ►
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s28: Individual councillor functions written as obliga‐
tions which include acting in best interests, undertaking duties and responsibilities s28: Must not direct employees s28: Must represent accurately the policies and deci‐
sions of council; must not perform function of Mayor without approval of the Mayor s28E: Councillors must comply with provisions of code of conduct s48: Must disclose and manage pecuniary interests s321: Declaration of office required within 60 days of election s338A: Must not disclose confidential information s339: Must not make improper use of information s339A: Must not misuse office to gain directly, indirectly or for advantage s339C: Suspended councillors or those who have not made prescribed declaration of office may not perform functions of office s28E councils must adopt a code relating to the conduct of councillors (this code of conduct is specific to council‐
lors) Local Government (General) Regulations 2005 clause 22A outlines matters that have to be addressed in codes of conduct – these are topic headings only there are by‐laws that relate to council powers and functions NZ Local Government Act 1995 Corruption and Crime Commission Act 2003 s5.65: Requires councillors to disclose interests at meet‐
ings s5.67: Requires disclosures of interests to be managed s5.68: Allows members present at meetings to allow a councillor to participate in a matter despite disclosing an interest s5.75/5.76: Requires primary and annual (30 June) re‐
turns of interests to be lodged s5.89: Councillors not to submit false or misleading re‐
turns of interests s5.93: Councillors must not make improper use of infor‐
mation in returns of interests s5.104: Required to observe regulated rules of conduct s5.123: Requires persons making complaints during a campaign period not to disclose information about that complaint (commits an offence) s5.124: Requires persons making or involved in com‐
plaints to not give false or misleading information (commits an offence) s8.38: Obligation not to misapply local government funds s5.103 councils must prepare or adopt a code of conduct (regulations may prescribe codes of conduct or manda‐
tory content0 There are local laws that councillors can breach and if so is considered misconduct] 29 Source: Local Government Act 1993 Ombudsman Act 1978 Integrity Commission Act 2009 Source: Local Government Act 2002, Schedule 7 Local Authority (Members Interests) Act 1968. Schedule 7: ► cl1: A person may not act as a councillor while disquali‐
fied under this clause ► cl14: A person may not act as a councillor until the per‐
son has made both an oral and written declaration that they will faithfully and impartially perform the powers and duties conferred on them by the Local Government Act 2002, the Local Authority (Members Interests) Act 1968 or any other Act ► cl 15(1) requires every council to adopt a code of con‐
duct and clause 15(4) requires councillors to comply with that code ► cl 16: Councillors to abide by the council’s standing or‐
ders (which govern the conduct of its meetings and those of its committees) Local Authority (Members Interests) Act 1968 ► s3: Nobody may be elected to a council, or once elected, remain a councillor, if the total of all payments made by the council under any contract made by it in which the councillor is concerned or interested exceeds $25K in any financial year ► s6 prohibits a councillor from participating in the discus‐
sion or voting on a matter in which the councillor has a direct or indirect pecuniary interest, (except an interest in common with the public) The role of the collective group of councillors on a council The collective responsibilities of local councillors are dealt with explicitly in some states’ legislation, and not in others. Tasmania is the only state to have taken the step to legislate the role of a collective group of councillors in addition to the role of an individual councillor. This collective role includes the development and imple‐
mentation of strategic plans and budgets, the deter‐
mination and monitoring of policies, plans and pro‐
grams; encouraging the planning and development of the area; appointing and monitoring the performance of the general manager; and determining and review‐
ing the council's resource allocation and expenditure activities. In New Zealand, legislation provides that as a collec‐
tive group, councillors’ roles include the develop‐
ment and adoption of council policy, monitoring the performance of council, stewardship of council re‐
sources, and the employment of the chief executive. While other states have not explicitly outlined the ‘collective role’ of councillors, this role can be inferred from a number of provisions that deal with elected members of council or the purpose of a council. In this regard, both New South Wales and South Australia have legislative provisions from which a collective role may be inferred. Such provisions are often grouped in a theme which outlines the ‘responsibilities of council‐
lors’ (plural). Victoria has provisions that outline the purpose of council that could reflect the role of coun‐
cillors. Queensland’s legislation is worded in a way that the responsibilities of councillors are both individual and collective VIC Source: Local Government Act 1989 S6 Purpose of Council Source: Local Government Act 1993 S232 What is the role of a Councillor? 1) The role of a councillor is, as a member of the governing body of the council: ► to provide a civic leadership role in guiding the development of the community strate‐
gic plan for the area and to be responsible for monitoring the implementation of the council’s delivery program ► to direct and control the affairs of the council in accordance with this Act ► to participate in the optimum allocation of the council’s resources for the benefit of the area ► to play a key role in the creation and review of the council’s policies and objectives and criteria relating to the exercise of the coun‐
cil’s regulatory functions ► to review the performance of the council and its delivery of services, and the delivery program and revenue policies of the coun‐
cil. 2) The role of a councillor is, as an elected person: ► to represent the interests of the residents and ratepayers ► to provide leadership and guidance to the community ► to facilitate communication between the community and the council. QLD Source: Local Government Act 2009 S12 Responsibilities of Councillors 1. A councillor must represent the current and future interests of the residents of the local government area. 2. All councillors of a local government have the same responsibilities, but the mayor has some extra responsibilities. 3. All councillors have the following responsi‐
bilities— a. ensuring the local government— i. discharges its responsibilities under this Act; and ii. achieves its corporate and com‐
munity plans; and iii. complies with all laws that apply to local governments; b. providing high quality leadership to the local government and the community; c. participating in council meetings, policy development, and decision making, for the benefit of the local government area; d. being accountable to the community for the local government’s performance (1) NSW The purposes of a Council are — (a) to provide for the peace, order and good government of its municipal dis‐
trict; and (b) to facilitate and encourage appropriate development of its municipal district in the best interests of the community; and (c) to provide equitable and appropriate services and facilities for the commu‐
nity and to ensure that those services and facilities are managed efficiently and effectively; and (d) to manage, improve and develop the resources of its district efficiently and effectively. 30 SA Source: Local Government Act 1999 Roles of members of council S59 a. as a member of the governing body of the council — i. to participate in the deliberations and civic activities of the council; ii. to keep the council's objectives and poli‐
cies under review to ensure that they are appropriate and effective; iii. to keep the council's resource allocation, expenditure and activities, and the effi‐
ciency and effectiveness of its service delivery, under review; b. as a person elected to the council — to represent the interests of residents and ratepayers, to provide community leader‐
ship and guidance, and to facilitate com‐
munication between the community and the council. TAS Source: Local Government Act 1993 S28 Functions of Councillors 2) A councillor, in the capacity of an individual councillor, has the following functions: a. to represent the community; b. to act in the best interests of the com‐
munity; c. to facilitate communication by the council with the community; d. to participate in the activities of the council; e. to undertake duties and responsibilities as authorised by the council. Dealing with breaches of councillor obligations WA Source: Local Government Act 1995 S2.10 Role of Councillors A councillor — a. represents the interests of electors, ratepay‐
ers and residents of the district; b. provides leadership and guidance to the com‐
munity in the district; c. facilitates communication between the com‐
munity and the council; d. participates in the local government’s deci‐
sion making processes at council and commit‐
tee meetings; and e. performs such other functions as are given to a councillor by this Act or any other written law. NZ Source: Local Government Act 2002, Schedule 7 Each council’s code of conduct Cl 14 The development and adoption of council policy; monitoring the performance of council against its stated objectives and policies; prudent steward‐
ship of council resources; employment of the Chief Executive. Note: A person may not act as a councillor until they have made an oral and writ‐
ten declaration that they will faithfully and im‐
partially, and according to my best skill and judg‐
ment, execute and perform, in the best interests of [council's area], the powers, authorities and duties, vested in or imposed on, me as mayor or councillor of the [x Council] by virtue of the Local Government Act 2002, the Local Government Official Information and Meetings Act 1987, or any other Act. Across jurisdictions there are a number of similarities in the mechanisms by which breaches of councillor obligations are dealt with. There are a number of states with tribunals to deal with more serious con‐
duct matters. Tasmania requires councils to establish code of conduct panels to deal with some conduct complaints. A number of states provide a role for their local gov‐
ernment association in the management of conduct complaints. There are large variances in the mecha‐
nisms for dealing with a breach of obligations. This ranges from local council conduct panels, to regional conduct panels, state level standards panels, tribunals and, in South Australia, the District Court. In Queensland, the management of a breach of obli‐
gations can be by the council chief executive officer, the mayor, the Department of Local Government and Planning, a regional conduct review panel or the Local Government Remuneration and Discipline Tribunal. These roles are outlined in the legislation. Addition‐
ally, the mayor can reprimand a councillor for inap‐
propriate conduct and refer repeat conduct to the Department. In New Zealand, the way in which breaches of obliga‐
tions are managed is left for councils themselves to decide. The process for making and managing complaints of a breach of obligations is outlined in most other Acts or Regulations. In New South Wales, that process is out‐
lined in the Model Code of Conduct. However, the process for the Local Government Pecuniary Interest and Disciplinary Tribunal, misbehaviour and pecuniary interest complaints is outlined in the Act. 31 Tasmania is the only state that provides an appeal process. Tasmania is also the only state that requires a fee to be paid for making a complaint, requesting that a complaint is referred to the (state‐wide) stan‐
dards panel or for an appeal. In conclusion, there are a range of differences be‐
tween the states in relation to the mechanisms for managing a breach of obligations. Most states have some form of a disciplinary tribunal to deal with the more serious complaints about misconduct. In any event, any breach of an Act can be remedied in the appropriate Court. Most other Acts appear to con‐
template that matters will be dealt with by a Court, as they apply penalty units and monetary sanctions. NSW Source: Local Government Act 1993 Ombudsman Act 1974 ICAC Act 1988 ►
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VIC S81 A‐S Source: "A guide to the Local Government QLD Act 2009 for mayors and councillors" pub‐
lished by Department of Infrastructure and Planning Local Government Act 2009 Ombudsman Act 2001 Integrity Act 2009 Crime and Misconduct Act 2001 Release of confidential information considered misconduct and dealt with by the Tribunal Division 6 provides: Process for reviewing complaints about mis‐
conduct ► Initially these are made to CEO for assess‐
ment and deals with some matters, other‐
wise ► Referred to Department, dealt with by re‐
gional conduct review panel or Tribunal depending on severity ► Some are dealt with under the Crime and Misconduct Act by CEO s429A: Department deals with complaints about individual councillors relating to serious and substantial waste made in ac‐
cordance with the Public Interests Disclo‐
sures Act s435: Departmental representatives may surcharge a councillor for incurring expen‐
diture in contravention of Act/Regulation s440H: Outlines the process for the sus‐
pension of a councillor for misbehaviour s440N: Outlines process for referring mat‐
ters to the PIDT s460 to 468: Outlines process for dealing with and investigating pecuniary interest complaints s469 to 490B: Provides a role for the PIDT in dealing with misbehaviour and pecuni‐
ary interest complaints s673/674: Proceedings in the Land and Environment Court to remedy or restrain a breach of the Act SA Source: Local Government Act 1999 Ombudsman Act 1972 ►
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WA Source: Local Government Act 1995 Local Government (Rules of Conduct) Regulations 2007 Corruption and Crime Commission Act 2003 ►
Source: Local Government Act 1989 Ombudsman Act 1973 ►
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Councillor conduct panels deal with mis‐
conduct which is a breach of the councillor code of conduct or failure to comply with a panel direction ►
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VCAT (Victorian Civil and Administrative Tribunal) deals with matters referred by councillor conduct panels that amount to serious or gross misconduct. ►
32 s74: Ombudsman can investigate alle‐
gations of breaches of disclosure of interests provisions s264: District Court deals with failure to disclose interest. Other Courts deal with matters relating to breaches of the Act. s5.120: Each council designates a senior employee as complaints officer. Complaints officer receives minor breach complaints and manages the process of referral to the primary standards panel. s5.122: A primary standards panel is estab‐
lished by Minister. Can establish other stan‐
dards panels. s5.111: Department CEO or a standards panel can deal with recurrent breaches s5.112: Recurrent breaches can be referred to the State Administrative Tribunal by the Department CEO s5.114/5.116: Complaints about serious breaches are made to the Department CEO who can refer them to the State Adminis‐
trative Tribunal. Tas Source: Local Government (General) Regulations 2005 Part 2A Local Government Act 1993 Ombudsman Act 1978 Integrity Commission Act 2009 ►
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s28F/G: Complaints are made and referred to a code of conduct panel or a standards panel Decisions of a code of conduct panel are appealable to the standards panel Councils establish the code of conduct panels s28H: Standards panel is convened and managed by Local Government Association Tasmania to determine complaints referred or appeals Local Government (General) Regulations 2005 clause 22B provides how complaints are lodged – these are lodged with the Mayor – there are prescribed fees for mak‐
ing a complaint (20 fee units), requesting a complaint is referred to the standards panel (50 fee units), and appeals (100 fee units). NZ Source: Codes of conduct; Local Authority (Members Interests) Act 1968 Local Government Act 2002 Breach of code of conduct Councils can determine for themselves the pro‐
cedure for dealing with a breach of the code. Breach of Local Authority (Members Interests) Act 1968 Liability for prosecution by Auditor‐General. Procedure and penalties for a breach of code of conduct is a matter for each council to deter‐
mine within its code submitting a false or misleading return of interests. Victoria, South Australia, Queensland and Western Australia have penalties of imprisonment from one to five years for breaches of certain of obligations. The various tribunals in each state have similar penal‐
ties available to them as in New South Wales. These generally relate to counselling, reprimand, suspension for defined periods and disqualification from holding office. Some tribunals have other sanctions that can be applied including directing an apology, ordering training, ordering mediation, monitoring the council‐
lor, forfeit of benefit, reimbursement of the local gov‐
ernment authority, directing that a leave of absence be taken, and ineligibility to chair certain committees or hold Mayoral office. In South Australia, the District Court can annul a resolution where a member or members of council failed to comply with disclosure of interests provisions. In Western Australia, the State Administrative Tribunal can allow a suspension or dis‐
qualification order to be put in abeyance and lapse if a councillor complies with other conditions that may be ordered. Generally, the penalty provisions of other states are higher than in New South Wales. Of course, the higher the penalty, the higher the standard of proof that is required. VIC Source: Local Government Act 1989 ►
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Local Government Act 2002, Schedule 7, clause 16 councillor may be ejected from meeting for breach of standing orders ►
Only the Auditor‐General may prosecute for a breach of the Local Authority (Members Inter‐
ests) Act 1968 ►
Penalties for breaches of councillor obligations As other states provide for conduct obligations in their Acts, the penalties also tend to be provided in the Acts at the relevant sections. For example, in Vic‐
toria if it is proven that a councillor has gained advan‐
tage from their position or caused a detriment to oth‐
ers there is a penalty of 600 penalty units or imprison‐
ment for five years or both. Most other states use penalty units for breaches of obligations, some use dollar amounts; for example, South Australia where there is a $10,000 penalty for ►
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s64: Ceases to be a councillor if oath of office not taken within 3 months s66: Acting as a councillor while incapable (may be ordered to return allowances or entitlements) PENALTY: 1 year imprison‐
ment or 120 penalty units s76D: Gain advantage or detriment to oth‐
ers PENALTY: 600 penalty units or impris‐
onment for 5 years or both s79A: Failure to comply with conflict of interest requirements PENALTY: 120 pen‐
alty units s81: Failure to lodge primary or ordinary returns of interests or provide required information in returns PENALTY: 60 penalty units (for each type of failure) s81J: A councillor conduct panel can repri‐
mand, direct an apology be made, direct a leave of absence be taken not exceeding 2 months, mediation, training, counselling s81K: The VCAT can reprimand, direct apol‐
ogy, direct leave of absence not exceeding 2 months, suspend not exceeding 6 months, ineligible to hold office not ex‐
ceeding 4 years, ineligible to chair special committee not exceeding 4 years, disqual‐
ify not exceeding 4 years, ineligible to hold office of Mayor not exceeding 4 years. 33 NSW Source: Local Government Act 1993 ►
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s435: Councillors can be required to pay back any money where an expenditure was not allowed. Also councillors required to pay any deficiency or loss as a consequence of negligence or misconduct s440B: Dismissal from civic office for seri‐
ous corrupt conduct s440C: Temporary suspension from civic office for serious corrupt conduct s440G: Councillor can be formally censured for misbehaviour s440K: Suspension by Director General for period not exceeding 1 month for misbe‐
haviour s482: LGPIDT (re pecuniary interest com‐
plaints) can counsel, reprimand, suspend not exceeding 6 months, disqualify not ex‐
ceeding 5 years, suspend right to be paid not exceeding 6 months s482A: LGPIDT (re misbehaviour com‐
plaints) can counsel, reprimand, suspend not exceeding 6 months, suspend right to be paid not exceeding 6 months s652: acting in civic office while disqualified PENALTY: 20 penalty units s660: Obstructing persons listed in exercis‐
ing functions PENALTY: 20 penalty units s664: Disclosing or misusing information PENALTY: 50 penalty units s666: Wilful destruction or alteration of council records PENALTY: 20 penalty units (for each type of breach) In addition: Model Code of Conduct pro‐
vides sanctions that can be applied by councils which include: censure, apology, counsel, make public findings, refer to other appropriate body QLD Source: Local Government Act 2009 ►
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34 s111/112: Improper loans and borrowings recovered as a debt payable – includes in‐
terest, fees, charges, penalties or expenses incurred as a result s169: Ceases to be a councillor if declara‐
tion of office not made within a month s171: Misuse of information PENALTY: 100 penalty units or 2 years imprisonment s172: Breach of material personal interest provisions PENALTY: 200 penalty units or 2 years imprisonment. In addition, where votes with intention to gain or lose PEN‐
ALTY 85 penalty units s173: Not notifying of conflict of interests, not leaving a meeting when directed PEN‐
ALTY: 100 penalty units (for each type of breach) s174: Offence if action taken against a councillor who reports interests or miscon‐
duct of other councillors PENALTY: 100 penalty units or 2 years imprisonment s177: For persons making frivolous or vexa‐
tious or substantially similar complaints about misconduct PENALTY: 10 penalty units s180: Misconduct where dealt with by re‐
gional conduct review panel: ► counselled, admission of error or apol‐
ogy, mediation, monitoring Misconduct where dealt with by Tribunal: ► counselled, admission of error or apol‐
ogy, mediation, monitoring, forfeit benefit etc, reimburse local government authority, suspend (wholly or specific functions), dismissed, referred to Crime and Misconduct Commission or Commis‐
sioner of Police s181: Inappropriate conduct – Mayor can reprimand or refer repeat conduct to De‐
partment. SA Source: Local Government Act 1999 ►
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s54: Vacancy occurs in office if councillor fails to submit a return of interests as re‐
quired s62: Improper use of information or use of position for gain or advantage PENALTY: $10,000 or imprisonment for 2 years (for each type of breach). For breach of this section the District Court can order train‐
ing, suspend not exceeding 2 months, dis‐
qualify not exceeding 5 years s69: Submitting false or misleading return of interests PENALTY: $10,000 s71: Publishing or commenting on Register of Returns information incorrectly PEN‐
ALTY: $10,000 s74: District Court can annul a resolution where a member or members of council failed to comply with disclosure of interests provisions s267: Breaches of the disclosure of inter‐
ests provisions District Court can repri‐
mand, order training, fine note exceeding $5,000, suspend not exceeding 2 months, disqualify not exceeding 5 years TAS Source: Local Government Act 1993 ►
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s5.65/5.67/5.75/5.76/5.78/5.89/5.93: Fail‐
ure to disclose interests; failure to manage a disclosure appropriately; failure to lodge primary and annual returns; failure to dis‐
close relevant matters in returns of inter‐
ests; give false or misleading information in returns of interests; making improper use of information in disclosure of interests returns PENALTY: $10,000 or imprisonment for 2 years (for each type of breach) s5.111: For minor breaches the primary standards panel can order public censure, apology, training (or any combination) s5.117: State Administrative Tribunal can order public censure, apology, training, suspension not exceeding 6 months, dis‐
qualification not exceeding 5 years (or a combination of these). Allows suspension or disqualification to be a suspended order and lapses and takes effect if the councillor does not comply with other conditions that may have been ordered s8.38: If funds are misapplied personal li‐
ability to repay (jointly and severally) and may be disqualified for a period not ex‐
ceeding 5 years s48: Not disclosing interests in matters at meetings PENALTY: 50 penalty units s48: Participating where an interest; not leaving the room; not giving written notice of details to general manager after declar‐
ing an interest PENALTY: 20 penalty units (for each type of breach) s338A: Disclosing confidential information PENALTY: 50 penalty units s339/339A: Improper use of information: misuse of office PENALTY: 50 penalty units (for each type of breach) 339C: Performing functions of civic office while suspended or not having made decla‐
ration PENALTY: 50 penalty units Provides in addition to penalties at s48, s338A, s339/339A that a Court may bar a councillor from nominating for office for a period not exceeding 7 years, and dismiss the councillor Clauses 22F and 22J of the Regulations pro‐
vide code of conduct panels and standards panel can apply following sanctions: cau‐
tion, reprimand, apology, counselling, train‐
ing (Note: reports from panels are tabled at closed meetings of councils). 35 NZ Source: Local Government Act 2002 Local Authority (Members Interests) Act 1968 Breach of code of conduct: Censure; seeking an apology; removal of coun‐
cillor from representative type bodies; dis‐
missal from position as chair or deputy chair of a committee. Breach of the Local Authority (Members Interests) Act 1968: Conviction will automatically result in disquali‐
fication from office and a fine of up to $100 in case of PI matter and fine of up to $200 in case of contract matter. Breaches which result in council suffering fi‐
nancial loss or damage: May be reported on by the Auditor‐General under the Local Government Act 2002 which may result in the councillor having to make good the loss or damage. Breach relating to criminal offences: May leave councillor liable for criminal prose‐
cution (eg by Police). Examples of penalties that may be imposed by each council are apology, censure, removal from council committee or outside appoint‐
ment, dismissal from position as chair or dep‐
uty chair of a committee Local Government Act 2002, Schedule 7, clause 14, acting as a councillor before making the required declarations is an offence with a fine of up to $5,000 (sections 235 and 242(2)) Local Government Act 2002, Schedule 7, clause 1, doing an act as a councillor while disquali‐
fied is an offence with a fine of up to $5,000 (sections 235 and 242(2)) Local Authority (Members Interests) Act 1968, breaches of sections 3 and 6 constitute of‐
fences which may only be prosecuted by the Auditor General. A conviction will automati‐
cally result in disqualification from office and a fine of up to $100 in case of PI matter and fine of up to $200 in case of contract matter. Breaches which result in council suffering fi‐
nancial loss or damage: may be reported on by the Auditor‐General under the Local Govern‐
ment Act 2002 which may result in the council‐
lor having to make good the loss or damage Other legislative provisions Every state, except Western Australia, has an Om‐
budsman office. There is a role in relation to council‐
lor misconduct for each Ombudsman, with the excep‐
tion of Victoria. The Ombudsman Act 1973 (Vic) ex‐
pressly excludes investigation of complaints about the misconduct of councillors. Generally, the Ombudsman is to refer misconduct matters to the local authority or another organisation that is legislated to deal with such matters. In New South Wales, the role of the Ombudsman in relation to misbehaviour matters has been provided in the Local Government Act 1993. South Australia’s Local Government Act 1999 also outlines a role for the Om‐
budsman in relation to breaches of disclosure of in‐
terest provisions. Both Queensland and Western Australia have a Crime and Misconduct Commission that has a significant role in relation to councillor misconduct. Queen‐
sland’s Commission can deal with misconduct that occurred before holding public office or misconduct that may have occurred in another state. In New South Wales, the equivalent organisation, the Inde‐
pendent Commission Against Corruption (ICAC), has a role in relation to misbehaviour which is provided for in the Local Government Act. The Queensland Local Government Act 2009 makes reference to matters that are referred from the Crime and Misconduct Commission to the council chief executive officer to manage. Both Tasmania and Queensland have Integrity Com‐
missions. Tasmania’s Commission appears to act in a similar capacity as the Crime and Misconduct/ICAC Commissions. Whereas, the Integrity Commission in Queensland provides written advice on ethics and integrity issues to designated persons, which includes councillors. NSW Source: Ombudsman Act 1974 ICAC Act 1988 Relevance of NSW Ombudsman When undertaking its functions, the Ombuds‐
man can make findings relating to the conduct of individual councillors and can make recom‐
mendations to the Director General in relation to this in accordance with the misbehaviour provisions of the LGA. Relevance of the ICAC A breach of a council’s code of conduct may be considered corrupt conduct for the purposes of the ICAC Act. Section 440 of the LGA pro‐
vides a role for the ICAC in relation to conduct that amounts to serious corrupt conduct. In addition, the misbehaviour provisions of the LGA provide a role in relation to the ICAC mak‐
ing a request to the Director General for the suspension of a councillor under those provi‐
sions. 36 QLD Source: Ombudsman Act 2001 Integrity Act 2009 Crime and Misconduct Act 2001 VIC Source: Ombudsman Act 1973 Relevance of Victorian Ombudsman ► Act includes reference to authority includ‐
ing municipal council and principal officer means CEO of a municipal council ► Principal function of Ombudsman to en‐
quire into or investigate any administrative action taken by any member of staff of a municipal council (limited to staff) (s13(1)) ► Does not authorise Ombudsman to enquire into or investigate any administrative ac‐
tion taken by a municipal council or a coun‐
cillor of a municipal council (s13(3)(e)) ► Expressly excludes investigation of com‐
plaints about the misconduct of councillors (s17(b)). SA Source: Ombudsman Act 1972 Relevance of South Australian Ombudsman ► Councils are covered by the Act and princi‐
pal officer is the principal member of the council ► May investigate any administrative act ► Must report evidence of breach of duty or misconduct to the principal officer ► Matters can be referred to the agency for further consideration ► Nothing in the Ombudsman Act that spe‐
cifically relates to the matters of conduct identified in the Local Government Act 1999. WA Source: Corruption and Crime Commission Act 2003 Relevance of Western Australian Crime and Misconduct Commission ► Public authority includes local government ► Misconduct refers to acting corruptly, com‐
mits an offence punishable by 2 or more years imprisonment, engages in conduct that adversely affects honest and impartial performance of functions, breach of trust, misuse of information ► Commission has functions: prevention and education to prevent misconduct; deal with allegations of misconduct ► No obligations on local government to no‐
tify misconduct (local government is not defined as a notifying authority, but is de‐
fined as a public authority. The obligations to notify rest with a notifying authority) ► If matters are referred to local government authority to deal with (by the CMC) then Commission may review how this has been dealt with ► S43(3) expressly provides that the Commis‐
sion can recommend an investigation of a matter by an Inquiry Panel under the Local Government Act 1995. Relevance of Queensland Ombudsman Function limited to administrative actions of agencies (LGA does not give any powers to Ombudsman above this) s50: If Ombudsman finds evidence of a breach of duty or misconduct reports this to agency’s principal officer as well as Mayor (or equiv) if it considers necessary. If this is the case the Om‐
budsman is also required to notify the CMC of official misconduct as required by s38 of that Act. Relevance of Queensland Integrity Commission Integrity Commissioner has function to give designated persons (as defined in that Act and includes councillors and CEOs of local govern‐
ment entities) written advice on ethics or in‐
tegrity issues, including conflict of interests issues. Relevance of Queensland Crime and Miscon‐
duct Commission Conduct refers to conduct or conspiracy that could adversely affect honest and impartial performance of functions or exercise of pow‐
ers, breach of trust, misuse of information Official misconduct where conduct is a criminal offence or a disciplinary breach, may have oc‐
curred before holding public office, may have occurred outside of Queensland Local government included in definition of unit of public administration Commissioner has role in: prevention function; major crime function; misconduct function Number of principles to be applied when deal‐
ing with misconduct: ► Cooperation (working with public admini‐
stration units) ► Capacity building (lead role to build capac‐
ity of units) ► Devolution (action should generally happen within the unit) ► Public interest (promote public confidence, regard to capacity of unit, seriousness) Public officials have duty to notify official mis‐
conduct (CEOs). 37 TAS Source: Ombudsman Act 1978 Integrity Commission Act 2009 Relevance of Tasmanian Ombudsman ► Investigates any administrative action taken by or on behalf of a public authority ► Matters can be referred by the Integrity Commission ► Matters can be resolved informally with the principal officer, can be referred to public authority for further consideration. Relevance of Tasmanian Integrity Commission ► Integrity Commission functions include: education, assisting with dealing with mis‐
conduct, dealing with misconduct and seri‐
ous misconduct by designated public offi‐
cers ► Public authorities include a local authority ► Designated public officers include a mem‐
ber of a council ► Principal officer includes general manager of a council ► Public officer includes councillors and staff ► Obligations on principal officer to ensure public officers are given appropriate educa‐
tion and training relating to ethical conduct (includes code of conduct and other obliga‐
tions) ► Misconduct means breach of code of con‐
duct, dishonest or improper conduct, mis‐
use of information, misuse of public re‐
sources, conduct that adversely affects honest and proper performance of func‐
tions or exercise of powers ► Complaints about alleged misconduct can be made to Commission ► Can refer complaints to local authority and require a report on action, monitor action, audit action taken ► Can recommend to Board that Commission of Inquiry be held ► Can investigate complaints, reports on in‐
vestigations are submitted to Board (can refer back to principal officer for action or other body or recommend commission of inquiry) ► Commission of Inquiry can make finding misconduct or serious misconduct has oc‐
curred. Can refer back to principal officer for action with recommendation of sanc‐
tions The role of the general manager The role of the general manager of a local council is defined in the local government legislation of all the jurisdictions examined. Broadly speaking, the role of the general manager is similar across all jurisdictions. Common to all, the role includes implementing the policies and decisions of the council; the appointment management and termi‐
nation of staff; responsibility for the day to day opera‐
tions and affairs of the council; and the provision of advice and information to the council. There are however, some differences. New South Wales is the only jurisdiction that uses the term “general manager”. All other jurisdictions use the term “chief executive officer”. In South Australia and Victoria a council’s organisa‐
tion structure is determined by the chief executive officer, although in doing so, in Victoria the chief ex‐
ecutive officer is required to consult with council. In New South Wales a council’s organisation structure is determined by the council itself, although the coun‐
cil is not prevented from delegating this task to the general manager should it choose to do so. None of the other jurisdictions specifically confer on the chief executive officer the function of determining the council’s organisation structure. In several jurisdictions the legislation prescribes the general manager’s relationship with the mayor. In Queensland the chief executive officer may only take directions and advice on council matters from the mayor. These directions must be in accordance with the strategic decisions and policies made by the coun‐
cil. The chief executive officer is required to keep a record of all directions given by the mayor. This re‐
cord must be accessible by the council. In turn, the chief executive officer acts as the conduit via the mayor with the executive arm of the council. Western Australia and Tasmania require the chief ex‐
ecutive officer to liaise with the mayor on the affairs of the council and the performance of its functions. The other jurisdictions examined, including New South Wales, are silent in this regard. In specifying the role of the chief executive officer, Queensland’s legislation refers to certain standards expected of the chief executive officer. For example, it refers to “promoting excellence in service delivery and continuous improvement”, “promoting effective efficient and economic management” and providing “sound and impartial” advice. This is likely due to the fact that the Queensland legislation is written as prin‐
ciples‐based legislation. Some other jurisdictions also do this but to a much lesser degree, for example South Australia and New Zealand. 38 In regard to reporting lines, in all jurisdictions other than Queensland, council staff report to the general manager, who in turn, reports directly to the council. In Queensland, while staff report to the chief execu‐
tive officer, the chief executive officer reports to the mayor not the council. All jurisdictions regulate staff and councillor interaction. In New South Wales this interaction is regulated by the prescribed model code of conduct. In South Australia, Tasmania, Western Australia and New Zealand it is a matter that may be regulated by a council through its code of conduct. In Queensland and Victoria this interaction is regulated directly by legislation. NSW Source: Local Government Act 1993 S335 & S440 Role of GM Generally responsible for the efficient and ef‐
fective operation of the council’s organisation and for ensuring the implementation, without undue delay, of decisions of the council. More particularly: (a) to assist the council in connec‐
tion with the development and implementa‐
tion of the community strategic plan and the council’s resourcing strategy, delivery program and operational plan and the preparation of its annual report and state of the environment report; (b) the day‐to‐day management of the council; (c) to exercise such of the functions of the council as are delegated by the council to the GM; (d) to appoint staff in accordance with an organisation structure and resources ap‐
proved by the council; (e) to direct and dismiss staff; (f) to implement the council’s equal em‐
ployment opportunity management plan. Source: Local Government Act 2009
QLD "A guide to the Local Government Act 2009 for mayors and councillors" ‐ published by Department of Infrastructure and Planning
S12, S13 Role of the CEO (a) acting as the conduit via the mayor with S179 the executive arm of council; S196 (b) taking direction and advice on council mat‐
S197 Reporting line Staff report to GM who in turn reports to coun‐
cil. Councillor and staff interaction regulated by model code of conduct which must be adopted by all councils. Model code provides that coun‐
cillors may not direct staff. ters from the mayor only, and keeping a record, accessible by council, of all direc‐
tions given by the mayor; (c) managing the administrative arm in a way that promotes excellence in service deliv‐
ery and continuous improvement; (d) using management practices that promote equal employment and are responsive to council’s policies and priorities; (e) establishing and implementing goals and practices in accordance with the policies and priorities of the local government; (f) appointing all council employees, in line with the relevant policies, the organisa‐
tional structure, the strategic direction and budget set by council; (g) consulting with councillors on the appoint‐
ment of senior contract employees; (h) taking disciplinary action against a council employee; (i) implementing the policies and priorities of the council in a way that promotes the effective, efficient and economical man‐
agement of public resources, excellence in service delivery and continuous improve‐
ment; (j) providing sound and impartial advice to the council. Reporting line CEO implements the decisions of the executive arm of council. Only the mayor may give direc‐
tions to the CEO in accordance with the strate‐
gic decisions and policies made by council. The CEO has line management authority and over‐
sees the work of council employees at an op‐
erational level. VIC Source: Local Government Act 1989 S94A S76E Role of the CEO (a) establishing and maintaining an appropri‐
ate organisational structure for the Coun‐
cil; (b) ensuring that the decisions of the Council are implemented without undue delay; (c) the day to day management of the Coun‐
cil's operations in accordance with the Council Plan; (d) developing, adopting and disseminating a code of conduct for Council staff; (e) providing timely advice to the Council; (f) carrying out the Council's responsibilities as a deemed employer with respect to Councillors, as deemed workers, which arise under or with respect to the Accident Compensation Act 1985 or the Accident Compensation (WorkCover Insurance) Act 1993; (g) appointing, directing, managing and dis‐
missing Council staff and for all other is‐
sues that relate to Council staff. Reporting Line: Staff report to CEO, CEO reports to council; legislation regulates ability of councillors to influence or direct staff. 39 SA Source: Local Government Act 1999 S62 S99 S103 Role of the CEO (a) to ensure that the policies and lawful deci‐
sions of the council are implemented in a timely and efficient manner; (b) to undertake responsibility for the day‐to‐
day operations and affairs of the council; (c) to provide advice and reports to the coun‐
cil on the exercise and performance of its powers and functions under the Local gov‐
ernment Act 1999 or any other Act; (d) to co‐ordinate proposals for consideration by the council for developing objectives, policies and programs for the area; (e) to provide information to the council to assist the council to assess performance against its strategic management plans; (f) to ensure that timely and accurate infor‐
mation about council policies and pro‐
grams is regularly provided to the council's community, and to ensure that appropriate and prompt responses are given to specific requests for information made to the council; (g) to ensure that the assets and resources of the council are properly managed and maintained; (h) to ensure that records required under the Local Government Act 1999 or another Act are properly kept and maintained; (i) to give effect to the principles of human resource management prescribed by the Local Government Act 1999 and to apply proper management practices; (j) to exercise, perform or discharge other powers, functions or duties conferred on the CEO by the Local Government Act 1999 or other Acts, and to perform other func‐
tions lawfully directed by the council; (k) to appoint, manage, suspend and dismiss the other employees of the council (on behalf of the council). Also to determine the organisational structure of the staff of the council (in consultation with the coun‐
cil). WA S5.41 S5.103 Source: Local Government Act 1995 Local Government (Rules of Conduct) Regulations 2007, regulation 10. Role of the CEO (a) advise the council in relation to the func‐
tions of a local government under this Act and other written laws; (b) ensure that advice and information is avail‐
able to the council so that informed deci‐
sions can be made; (c) cause council decisions to be imple‐
mented; (d) manage the day to day operations of the local government; (e) liaise with the mayor or president on the local government’s affairs and the per‐
formance of the local government’s func‐
tions; (f) speak on behalf of the local government if the mayor or president agrees; (g) be responsible for the employment, man‐
agement supervision, direction and dis‐
missal of other employees (subject to cer‐
tain restrictions in relation to senior em‐
ployees); (h) ensure that records and documents of the local government are properly kept for the purposes of the Local Government Act 1995 and any other written law; and (i) perform any other function specified or delegated by the local government or im‐
posed under the Local Government Act 1995 or any other written law as a function to be performed by the CEO. Reporting line Staff report to CEO, CEO reports to council; code of conduct may regulate councillor and staff interaction Reporting line Staff report to CEO, CEO reports to council; code of conduct may regulate councillor and staff interaction 40 TAS S28E S62 S63 Source: Local Government Act 1993 Local Government (General) Regulations 2005, regulation 22A(f) NZ S42 Role of GM (a) to implement the policies, plans and pro‐
grams of the council; (b) to implement the decisions of the council; (c) to be responsible for the day‐to‐day opera‐
tions and affairs of the council; (d) to provide advice and reports to the council on the exercise and performance of its powers and functions and any other matter requested by the council; (e) to assist the council in the preparation of the strategic plan, annual plan, annual re‐
port and assessment of the council's per‐
formance against the plans; (f) to coordinate proposals for the develop‐
ment of objectives, policies and programs for the consideration of the council; (g) to liaise with the mayor on the affairs of the council and the performance of its func‐
tions; (h) to manage the resources and assets of the council; (i) to perform any other function the council decides; (j) to employ, control, direct, suspend and dismiss staff. Source: Local Government Act 2002 Role of CEO (a) implementing the decisions of the local authority; (b) providing advice to members of the local authority and to its community boards, if any; (c) ensuring that all responsibilities, duties, and powers delegated to him or her or to any person employed by the local author‐
ity, or imposed or conferred by an Act, regulation, or bylaw, are properly per‐
formed or exercised; (d) ensuring the effective and efficient man‐
agement of the activities of the local au‐
thority; (e) maintaining systems to enable effective planning and accurate reporting of the financial and service performance of the local authority; (f) providing leadership for the staff of the local authority; (g) employing, on behalf of the local authority, the staff of the local authority; (h) negotiating the terms of employment of the staff of the local authority. Reporting line Staff report to CEO, CEO reports to council; code of conduct may regulate councillor and staff interaction Reporting line Staff report to GM, GM reports to council; code of conduct may regulate councillor and staff interaction Performance management of the General Manager The mechanisms available to manage the perform‐
ance of general managers vary across jurisdictions. Not all of the jurisdictions examined specifically re‐
quire councils to engage their general managers on a performance based contract. Those that do are New South Wales, Queensland, Victoria, Western Australia and New Zealand. New South Wales is the only jurisdiction which re‐
quires general managers to be employed on a stan‐
dard performance based contract. This contract speci‐
fies that a general manager’s employment may be terminated by the council if, after conducting a per‐
formance review, the council finds that the general manager has not substantially met the performance criteria or the terms of the performance agreement. In this case, the council must give either 13 weeks notice or a termination payment equivalent to 13 weeks pay. While Queensland, Victoria, Western Australia and New Zealand require performance based contracts, it is a matter for each council and the prospective chief executive officer to determine the terms of those contracts, including termination provisions. There are however some exceptions. In the main these relate to the maximum term of such contracts. In Queensland the mayor is responsible for conduct‐
ing the performance review of the chief executive officer, at least annually, in the manner that is deter‐
mined by the council. This is, no doubt, because of the different reporting line in Queensland, as dis‐
cussed in section g. Victoria requires the performance review to be con‐
ducted annually. The two jurisdictions that do not require the chief executive officer to be engaged on performance based contracts are South Australia and Tasmania. The terms of the contract are a matter for the council 41 and the prospective chief executive officer to deter‐
mine. South Australian legislation does, however, provide that a council may terminate its chief executive offi‐
cer’s appointment. This may be on the grounds that the chief executive officer has failed to carry out the duties of the office satisfactorily or to any perform‐
ance standards specified by the council or in any con‐
tract relating to the chief executive officer’s appoint‐
ment. NSW S336 S338 VIC S95A S97A Source: Local Government Act 1993 The GM must be employed on a standard form performance based contract. The contract re‐
quires: (a) the parties to sign a performance agree‐
ment setting out agreed performance criteria; (b) performance to be reviewed at least annually. The contract specifies the circumstances in which it may be terminated by either party. Legislation specifies that the GM's office be‐
comes vacant if the GM: (a) dies; (b) completes the term of his or her con‐
tract and is not re‐appointed; (c) resigns from the position; (d) becomes a mentally incapacitated per‐
son and is removed from the position by the council because of that mental incapacity; (e) is sentenced to imprisonment; (f) is removed from the position for breach of or under the terms of the GM’s con‐
tract with the council. QLD Source: Local Government Act 2009 S12(4) S194 The Mayor is responsible for conducting a performance appraisal of the CEO, at least annually, in the way that is decided by the council. The CEO's contract of employment must provide for the CEO to meet perform‐
ance standards set by the council. No legis‐
lated termination provisions. That is a mat‐
ter for the contract of employment.
42 Source: Local Government Act 1989 The CEO's employment contract must spec‐
ify performance criteria for the purpose of reviews of the CEO's performance. Per‐
formance must be reviewed at least once per year. No legislated termination provi‐
sions. SA Source: Local Government Act 1999 S97 No specific statutory requirement for perform‐
ance based contract or reviews. However the CEO's appointment may be terminated by the council on the ground that the CEO has: (a) failed to carry out the duties of the of‐
fice satisfactorily or to any perform‐
ance standards specified by the council or in any contract relating to the CEO's appointment; (b) breached in any other manner any con‐
tract relating to the CEO's appointment.
WA Source: Local Government Act 1995 Local Government (Administration) Regu‐
lations 1996, regulation 18D
S5.38 S5.39 CEO's performance is required to be reviewed at least once annually. The employment con‐
tract must specify performance criteria for the purpose of reviewing the CEO’s performance. All other provisions of the contract, except as noted below, are a matter for council and the CEO.
TAS Source: Local Government Act 1993
S61 No statutory requirement in this regard. A council is required to appoint a general manager for a term not exceeding 5 years on terms and condi‐
tions that it considers appropriate. An appoint‐
ment is not to be extended or renewed so as to exceed 5 years in total unless the council has re‐
viewed its terms and conditions. NZ Source: Local Government Act 2002, Schedule 7
Cl34(2) Cl35 Council and CEO must enter into a perform‐
ance agreement. Maximum term of employ‐
ment is 5 years and may be renewed for fur‐
ther 2 years provided performance review con‐
ducted 6 months before end of first term. Af‐
ter 7 years position must be re‐advertised. Incumbent may reapply.
Other industrial provisions relating to the General Manager The local government legislation of all the jurisdic‐
tions examined prescribes very little in the way of industrial provisions concerning the employment of the general manager. In essence the provisions identified concern the length of the term of the appointment, performance management (identified and discussed in (h) above) and long service leave. As noted in (h) above, New South Wales is the only jurisdiction in which the general manager’s employ‐
ment may be (and is) governed by a standard con‐
tract of employment. All other jurisdictions allow councils and chief executive officers to determine for themselves the terms of their contracts, subject to very limited exceptions. In regard to the term of the appointment, New South Wales, Tasmania and Western Australia limit the term to a maximum of five years. However, each of these jurisdictions permit the council to reappoint the in‐
cumbent for successive terms of up to five years with‐
out the need to readvertise the position. New Zealand limits the term of appointment to a maximum of five years and permits one renewal of up to two years without readvertising. After that, the position must be readvertised but the incumbent is entitled to reapply. If this happens, the council is re‐
quired to consider the incumbent’s application. In Queensland, Victoria and South Australia there is no limit on the term for which a chief executive offi‐
cer may be appointed. Long service leave entitlements are legislated in all jurisdictions (although not necessarily in local govern‐
ment legislation) except New Zealand. In essence, the legislation standardises long service leave entitle‐
ments for all council employees including the general manager. In New Zealand there is no statutory entitlement to long service leave. Consequently it is not available unless the contract of employment provides for that. NSW Source: Local Government Act 1993 S338 Term of appointment must not be less than 12 months nor more than 5 years. Appointment may be renewed without advertising. QLD Source: Local Government (Operations) Regulations 2010 S99 —
S102 Councils must implement long service leave arrangements for CEO in accordance with regulations. No restriction on the length of the term of employment.
VIC Source: Local Government Act 1989, Local Government (Long Service Leave) Regulations 2002
S101 No restriction on length of term of employ‐
ment. Councils must implement long service leave arrangements in accordance with regula‐
tions.
SA 43 No restriction on length of term of employ‐
ment.
WA Source: Local Government Act 1995. Local Government (Long Service Leave) Local Government (Administration) Regulations 1966, regulation 18B.
S5.39 S5.40 There are certain legislative provisions con‐
cerning long service leave which apply to all persons employed by councils. Maximum term of the contract is 5 years but may be renewed without advertising. The Local Government Act 1995 provides that the written contract of em‐
ployment must contain any other matter that has been prescribed as matter that must be included in the contract. The only matter that has been prescribed is that the employment contract must provide for a maximum amount of money (or a method of calculating such an amount) to which the CEO is to be entitled if the contract is terminated before the expiry date, which amount is not to exceed which‐
ever is the lesser of — (a) the value of one year’s remuneration under the contract; or (b)
the value of the remuneration that the CEO would have been entitled to had the contract not been termi‐
nated.
TAS Source: Local Government Act 1993, Local Government (Building and Miscella‐
neous Provisions) Act 1993
S61 The term of employment may not exceed 5 years but may be renewed for consecutive 5 years terms without readvertising. There are certain legislative provisions concerning long service leave which apply to all persons em‐
ployed in any capacity by a council.
NZ Source:Local Government Act 2002, Schedule 7 Cl 34 Cl 36 Term of appointment must not exceed 5 years and may be renewed on one occasion for a further period of 2 years without readvertising. After that the position must be readvertised however the incumbent CEO is entitled to re‐
apply. Employment contract is a matter be‐
tween council and CEO. No standard contract of employment but councils required to be a good employer (having personnel policies gen‐
erally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment).
44 Appendix 8. Division of Local Government Promoting Diversity Strategy Communities in NSW are made up of diverse groups including Aboriginal people, people from a culturally and linguistically diverse (CALD) background and peo‐
ple with a disability. Promoting diversity in local government is about rec‐
ognising the needs, values and contribution that these diverse groups can make to local government and encouraging their participation at all levels. A term‐by‐term survey of candidates and councillors for local government elections since 1987, reveals that across NSW there continues to be an under‐
representation on councils of women, Aboriginal or Torres Strait Islanders and others from diverse groups. The demographic make up of elected councils does not generally reflect that of the communities they represent. Survey data collected by the Division of Local Govern‐
ment (DLG) for the 2008 local government term indi‐
cated: ► Just over a quarter (27%) of councillors were women (approximately half of the population is women) ► The most common age group of councillors was 50‐59 years, followed by 60‐69 years (the median age of the population is approximately 37) ► 1.6% of all councillors identified as Aboriginal or Torres Strait Islander (2.2% of the NSW population is Aboriginal or Torres Strait Islander) ► The first language spoken at home by most coun‐
cillors was English (26% of the NSW population speaks a language other than English at home) ► 3% of all councillors identified as having a disabil‐
ity (4% of the NSW population have identified a need for assistance with self‐care, mobility and/or communication) ► A typical councillor was male, over 50, spoke Eng‐
lish at home, was a professional, self employed or a primary producer and had previously served on council. In the lead up to local government election in Sep‐
tember 2012, the DLG worked actively to encourage diverse groups, including women, Aboriginal and Tor‐
res Strait Islanders, people from culturally and linguis‐
tically diverse backgrounds, people with a disability and young people to stand for election. This work in‐
cluded: ► 71 candidate information seminars held across NSW between May and July 2012 ► Publications to encourage diverse candidates to stand for election including a candidate guide and brochures for women, Aboriginal and Torres Strait Islanders and culturally and linguistically diverse communities, translated into 15 community lan‐
guages ► Media releases urging people across NSW to con‐
sider running for council. Notes: The DLG has just issued a survey for the 2012 local government elections. Results will not be available for some months. The Division is currently evaluating its Candidate Diversity Strategy. 45 Appendix 9. Division of Local Government Councillor Development Strategy The Division of Local Government’s Councillor Devel‐
opment Strategy aims to support the professional development of councillors. Key components of the Strategy are: ►
►
►
►
Councillor Workshops Councillor Handbook Directory of Information for Councillors Councillor Induction and Professional Develop‐
ment ‐ A Guide for Councils The content of the Councillor Workshops component was developed by the Division of Local Government (DLG) along with the Local Government and Shires Associations of NSW and other key stakeholders. It takes into account feedback from, and builds on the content of, Councillor Workshops delivered across NSW following the local government elections in 2008 and in Shellharbour and Wollongong following the fresh elections in 2011, as well as Candidate Informa‐
tion Seminars delivered across NSW prior to the local government elections in 2012. The workshops aim to support newly‐elected and ex‐
isting Councillors in serving their community and ful‐
filling their responsibilities. They allow Councillors to develop and update their skills and knowledge, as well as sharing experiences of how to be an effective Councillor. The workshops called ‘Hit the ground running’ cover roles and responsibilities, meeting practice, the re‐
vised Code of Conduct and the Integrated Planning and Reporting framework. They also present an ideal opportunity for councillors to network with their peers from other local government areas and experi‐
enced staff of the Division of Local Government and share their experiences. Note: In October and November 2012 the DLG ran 30 Councillor Workshops across the state in partnership with the Local Government and Shires Associations. All Councillors were recommended to attend the workshops. 46 Appendix 10. Examples of tiered local government Single Tier Government: Auckland Council Two‐tier local government: England In 2010, eight councils in and around New Zealand were amalgamated to create Auckland City Council. The Council has two complementary and non‐
hierarchical decision‐making parts: Outside of the major towns and cities, England pri‐
marily operates a system of two‐tier local govern‐
ment. The upper‐tier county council covers a large area and provides most public services, including schools, so‐
cial services, and public transportation. Each county is divided into several districts that pro‐
vide more local services, including council housing, leisure, local planning, and recycling and waste collec‐
tion. County councils typically have 40‐80 councillors each representing 8‐12,000 voters. District councillors have smaller constituencies of 1500‐2000, with dis‐
trict council populations ranging from 50‐100,000. Despite wide use of the term two‐tier local govern‐
ment in England, there is in fact a third tier. There are around 9,000 parish and town councils in England covering areas smaller than districts (from a few hun‐
dred people to tens of thousands) and representing about a third of the population. They are responsible for services like allotments, public toilets, parks and ponds, war memorials, local halls and community centres. They are funded by levying a precept on the council tax. Parish councils comprise a minimum of five councillors that are elected for four years, with no poll if they are unopposed. Councils have the power to create, alter and abolish parishes. ►
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The governing body, consisting of a mayor elected by all Aucklanders and 20 Councillors elected on a ward basis 21 local boards, with members elected by local board area The governing body and the local boards share the decision‐making responsibilities of Auckland Council: ►
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The governing body focuses on the big picture and on region‐wide strategic decisions Local boards represent their local communities and make decisions on local issues, activities and facilities 47 Appendix 11. Multiple governance arrangements within a single local government system Summary of approaches (categories) identified in Our Communities, Our Councils, Our Future – Destination 2036 Discussion Paper. (Elton Consulting 2011) Approach Proposed structure Big councils with broad focus – suits areas with large populations ►
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Small to medium councils with tight focus – suits areas with small to medium populations with a council focus on delivery of core services ►
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Small and nimble councils – suits councils with smaller populations and budgets ►
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Small to medium councils with shared administrations – suits councils wanting to retain local presence ►
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Small to medium councils with broad service reach – suits councils willing to take on regional service provision and located in a larger geographic area ►
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Larger number of councillors Provide a core set of services Respond flexibly and creatively to the needs of the community Full‐time Executive Mayor Increased flexibility in setting rates Mayors directly elected for four year term or elected by councillors for shorter period Greater flexibility from rate pegging Lifting of some compliance requirements Increased resource based through resource sharing with neighbouring councils Mayors directly elected for four year term or elected by councillors for shorter period Rely on financial grants Lifting of some compliance requirements Deliver core set of services through joint administra‐
tion Targeted solutions to local challenges Collective strategic planning Deliver a core set of services Take on new services, including some currently pro‐
vided by State or Federal government Use innovative technology to provide regional ser‐
vices Lifting of some compliance requirements 48