Proposed reforms to stamp out bad councillor behaviour - increase transparency in local government: have your say until november 15
The NSW Government is proposing reforms to overhaul the broken Code of Conduct system for elected councillors, which is generating thousands of trivial complaints making it almost impossible to act swiftly and fairly on matters of genuine concern.
A discussion paper, released September 5 2024, proposes a complete rewrite and simplification of the Model Code of Conduct as well as a number of new pathways for addressing poor councillor behaviour.
At over 100 pages long the current code of conduct framework is overly complex, distracts from robust democratic debate and is being increasingly weaponised for political reasons.
There were 4,289 code of conduct complaints lodged over the last three years alone, forcing councils to divert significant time and money from providing local services to resolve these complaints.
Proposed reforms would streamline the code of conduct down to 2-3 pages similar to the State Parliamentary code, and outline clear expectations of behaviour for 1,300 elected councillors.
The new code of conduct system would see minor complaints about councillor misbehaviour dealt with by a councillor’s peers and leave serious matters relating to conflicts of interest to be examined by the Office of Local Government.
The government is also putting forward reforms to improve transparency of council meetings to ensure decisions are being made openly and in the best interests of the community as a whole.
Key reforms outlined in the discussion paper, some of which would require changes to the Local Government Act 1993, include:
- Establishing a local government privileges committee of experienced councillors with mayoral experience to assess complaints made against councillors for misbehaviour, consistent with practices in other tiers of government (where the conduct does not meet the threshold for police or referral to another investigative body or tribunal)
- Removing private investigators from the councillor conduct process, while strengthening the investigative capability of the Office of Local Government to investigate and prosecute legitimate complaints (such as issuing penalty infringement notices where conflict of interest declarations have not been made)
- Banning private councillor briefing sessions, except in very limited circumstances
- Strengthening lobbying guidelines for local government
- Giving mayors more power to expel councillors from meetings for acts of disorder and remove their entitlement to receive a fee in the month of their indiscretion
The discussion paper is now open for community and sector feedback, at: www.olg.nsw.gov.au/councils/misconduct-and-intervention/councillor-conduct-framework
Submissions close Friday, 15 November 2024.
Minister for Local Government Ron Hoenig said:
“The current councillor code of conduct system is fundamentally broken.
“It is too open to weaponisation, with tit-for-tat complaints diverting critical council resources and ratepayer money from the things that matter most to communities.
“The sheer volume of vexatious complaints being made is preventing the Office of Local Government from focussing its attention on getting crooks out of the local government sector.
“The options presented in this discussion paper put the onus back on addressing and resolving issues of councillor misbehaviour at a local level, rather than escalating complaints for the state government or private investigators to fix.
“It also puts forward options to strengthen the role of the Office of Local Government as the sector regulator, including expanded investigation powers for serious conflict of interest breaches and the ability to issue penalty infringement notices.
"For far too long the system has been abused. It’s time to restore public confidence in councils and ensure the dignity of this vital third tier of government is upheld.”
An example from the Discussion Paper:
Question: Is the proposed pecuniary interest framework appropriate? Is anything missing?
Non-pecuniary interests
A conflict of interest does not necessarily have to be financial in nature. It could also arise from familial or personal relationships, affiliations or memberships. It is equally important that such conflicts are managed appropriately to ensure that decision making is seen to be transparent and remains in the public interest.
An interested and informed observer should be confident a decision made by a councillor is free from bias or a reasonable apprehension of bias. This means that any concerns about a potentially significant conflict of interest should be declared and appropriately managed.
The nature and breadth of non-pecuniary interests naturally means that the framework for management of such interests is more nuanced, with the management approach often dependent upon the individual circumstances of the case.
It is also important to recognise that councillors, as representatives of their community, reside within their community, so memberships of clubs, congregational memberships etc should not automatically be seen as conflicts of interest.
If a decision of a councillor directly advantages (or disadvantages) a particular individual or organisation the councillor is friendly with or associates with, then that can be a conflict that should be publicly declared, if the councillor considered it of minor consequence, it wasn’t controversial, or the councillor did not hold the casting vote.
Alternatively, if a decision of a councillor directly advantages (or disadvantages) a particular individual or organisation the councillor is friendly with or associates with, then that can be a conflict requiring the councillor to recuse themselves from being involved in the decision-making process if there was a major advantage or disadvantage (or potential for), if it was controversial or the vote of the councillor was critical.
The appropriate test for whether a non-pecuniary interest should be declared is based on an objective test, not in the mind of the individual who is subject to the conflict of interest. The test is whether a reasonable and informed person would perceive that the councillor could be influenced by a private interest when carrying out their official functions in relation to a matter.
Whether the councillor abstains themselves from a decision, or decides to participate, the continued and timely disclosure of interests is critical. Disclosure ensures the community is aware of any potential conflicts and how the councillor is managing and responding to the issue.
Councillors should remain as vigilant about disclosure of non-pecuniary interests as they are about pecuniary interests.