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UPDATE: New local government legislation

Tuesday, 22 May 2018

On 17 May 2018, the Queensland Parliament passed two pieces of legislation of great importance to local government: 
  1. Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Bill 2018; and 
  2. Local Government (Councillor Complaints) and Other Legislation Amendment Bill 2018.

Legislation can be found here: https://www.parliament.qld.gov.au/work-of-assembly/whats-new

The LGAQ has issued speaking points to assist mayors and councillors respond to enquiries.
 
This update provides an overview of the provisions contained in the new legislation.
UPDATE
The Belcarra Bill received royal assent on 21 May and has entered into force (except for the property developer donation provisions which will commence by proclamation at a date TBC). The Councillor Complaints Bill will also commence by proclamation in December.
 
The Department of Local Government, Racing and Multicultural Affairs has issued two bulletins with guidelines to assist elected members comply with the new requirements, particularly in relation to management of conflicts of interest.
 
The Department will provide training later in the year for all elected members on the new Councillor Complaints system. More information regarding the timing of that training will be released shortly by the Department. 
 
Local Government Electoral (Implementing Stage 1 of Belcarra) and Other Legislation Amendment Bill 2018
 
This Bill implements 5 out of the 31 recommendations in the Crime and Corruption Commission’s (CCC) Belcarra Report (recommendations 20 and 23-26) and introduces additional dismissal and suspension powers. The LGAQ will continue to prosecute the Beyond Belcarra proposals endorsed by the Policy Executive with the Government following the passage of this legislation.
 
Prohibition on donations from property developers
 
The Bill amends the Electoral Act and the Local Government Electoral Act to prohibit the making of political donations by property developers to candidates in State or local government elections, groups of candidates in local government elections, third parties, political parties, councillors and Members of State Parliament.
 
The Bill:
  • makes unlawful the making and acceptance of political donations made by or on behalf of prohibited donors; 
  • makes it unlawful for prohibited donors (or others on their behalf) to solicit other persons to make political donations; and
  • provides for appropriate transitional arrangements.
The Bill introduces provisions based on the New South Wales legislation in this area.
 
Importantly, the developer donation ban applies retrospectively. Donations made on or after 12 October 2017 (the date of introduction of the 2017 Belcarra Bill) and before commencement of the new Bill, that would have been unlawful for the recipient to accept after commencement, will need to be repaid to the donor within 30 days of the commencement. There is no offence committed in respect of donations made or received between the date of introduction of the 2017 Bill and commencement of the new Bill, with the only offence being the failure to repay.
 
Managing councilor conflicts of interest (COI) and material personal interests (MPI)
 
The Bill amends the Local Government Act (LGA) and the City of Brisbane Act (COBA) to strengthen requirements for how a councillor must deal with a real or perceived conflict of interest or a material personal interest to: 
  • require that after a councillor has informed a meeting of the councillor’s conflict of interest in a matter other than an ordinary business matter, other councillors must vote at the meeting to decide whether the councillor has a real or perceived conflict of interest and whether the councillor must leave the place at which the meeting is being held or may stay and participate in the meeting
  • prescribe additional information to be provided by a councillor when informing a meeting of a real or perceived conflict of interest or a material personal interest in a matter other than an ordinary business matter
  • require any councillor at a meeting who believes or suspects on reasonable grounds that another councillor at the meeting has a real or perceived conflict of interest or a material personal interest in a matter other than an ordinary business matter to inform the person who is presiding at the meeting of the councillor’s belief of suspicion
  • strengthen penalties for councillors who fail to comply with their obligations
  • provide that it is an offence for a councillor who has a material personal interest or a real or perceived conflict of interest in a matter other than an ordinary business matter to influence or attempt to influence any vote by another councillor or any decision by a council employee or contractor in relation to the matter.
Additional dismissal and suspension provisions
 
Also early next week, two new provisions will become law which were introduced as late amendments to the Belcarra Bill:
  • changes to the LGA and COBA to introduce an automatic suspension, with remuneration, for any Mayor or Councillor charged with a “disqualifying offence”; and
  • changes to the LGA to expand the powers of the Local Government Minister to dismiss or suspend a Council, a Councillor or Mayor in the public interest.
The Bill creates, by reference to a new schedule 1, a list of serious integrity offences (part 1) and a list of integrity offences (part 2), both of which fall within the definition of “disqualifying offence”. Elected members are strongly encouraged to familiarise themselves with the list of disqualifying offences in the new schedule in the Bill.
 
There are eight LGA offences listed as “integrity offences”, including breach of the material personal interest and conflict of interest provisions (as already intended to be amended by this Bill). In relation to failing to keep a Councillor’s register of interests up to date, that will only be a disqualifying offence if the charge is that the failure was intentional (see section 171B(2)(a) of the Act).
 
All of the above amendments are to apply to councillors presently charged with disqualifying offences and will commence immediately upon assent of the Bill. According to the answer given by Local Government Minister Stirling Hinchliffe to a question during the debate in parliament, there are currently five councillors charged with disqualifying offences.
The Government will review the operation of these new powers within two years, in consultation with the LGAQ.
 
Local Government (Councillor Complaints) and Other Legislation Amendment Bill 2018
 
The Bill amends the LGA and the Public Service Act to provide a simpler, more streamlined system for making, investigating and determining complaints about councillor conduct in Queensland. The Bill applies to all councils except Brisbane City Council.
The Bill: 
  • establishes the Independent Assessor and the Office of the Independent Assessor to investigate and deal with the conduct of councillors where it is alleged or suspected to be inappropriate conduct, misconduct or, when referred to the Independent Assessor by the CCC, corrupt conduct
  • provides for local governments to investigate and deal with suspected inappropriate conduct when referred to a local government by the Independent Assessor and to take disciplinary action against councillors for inappropriate conduct
  • reallocates the functions of the current Local Government Remuneration and Discipline Tribunal (LGRDT) and the Regional Conduct Review Panels (RCRPs) by:
    • establishing the Councillor Conduct Tribunal to conduct hearings about a councillor’s alleged misconduct, decide whether the councillor has engaged in misconduct and what, if any, disciplinary action to take, and at the request of a local government investigate the suspected inappropriate conduct of a councillor
    • establishing the Local Government Remuneration Commission to establish the categories of local governments, decide the category to which each local government belongs and decide the maximum remuneration payable to councillors
  • deals with the conduct of councillors at local government meetings that contravene the behavioural standards (a ‘local government meeting’ is defined to mean a meeting of a local government or a committee of a local government) 
  • repeals chapter 6, part 2, division 6 of the LGA thereby repealing the declaration that a decision is not subject to appeal, allowing certain review rights for decisions about councillor conduct and judicial review of an administrative decision of a local government
  • provides for administration and governance matters including requiring:
    • a code of conduct (made by the Minister) to set appropriate standards of behaviour for councillors in performing their functions
    • the department’s chief executive to make model procedures for the conduct of meetings of a local government and its committees
    • local governments to maintain a councillor conduct register recording particular orders and decisions
    • the Independent Assessor to give the Minister an annual written report about the operation of the Office of the Independent Assessor and for the Minister to table a copy of the report in the Legislative Assembly
  • strengthens offences to support the new system, including providing protection from reprisal for local government employees and councillors who make complaints against councillors, discouraging frivolous and improper complaints and ensuring confidentiality of investigations
  • provides for appropriate arrangements necessary for the transition to the new councillor complaints system.
A key component of these reforms includes removing a council’s Chief Executive Officer (CEO) and the Department from the process of making preliminary assessments of complaints. A draft code of conduct, draft model meeting procedures and draft example investigations policy are currently being developed by the Local Government Liaison Group, which advises the Minister on the implementation of the new Councillor Complaints system and includes the LGAQ as a member. Copies will be made available to councils for consultation shortly.
 
Any questions about the content of this update should be directed to either Josh O’Keefe or Stephan Bohnen, Intergovernmental Relations Team on PH: 1300 542 700 or ask@lgaq.asn.au.
 
 
 

Local Government Association of Queensland
LG House, 25 Evelyn Street, Newstead Qld 4006


 

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