As the March 2020 local government elections near, the Office of the Independent Assessor (“OIA”) has been publishing resources for councillors on its website, including how to manage conflicts of interest and social media guidelines for councillors.
The Councillor Conduct Tribunal (“CCT”) has also been busy, delivering 6 decisions in August 2019 alone.
The OIA has been publishing summaries of CCT decisions, as well as summaries of specific legal matters that have arisen in those decisions. The purpose of the summaries is to deliver a snapshot to councillors on specific issues that have gone before the CCT.
These decisions have canvassed a range of different types of councillor conduct, but the focus continues to be on how councillors disclose conflicts at meetings.
The recent volume of CCT decisions on how to declare conflicts makes it timely to revisit those sections of the Local Government Act 2009 (“LGA”).
Section 175D of the LGA defines a conflict of interest as a conflict that is between a councillor’s personal interests, and the public interest, and might lead to a decision that is contrary to the public interest.
Section 175D(2) lists the circumstances in which a councillor does not have a conflict of interest.
If a councillor at a meeting identifies that they have a conflict of interest (a real conflict), or could reasonably be taken to have a conflict of interest (a perceived conflict), the councillor must inform the meeting of their personal interests, and:
- the nature of the interests;
- if the councillor’s personal interests arise because of their relationship with, or receipt of a gift from, another person, the name of the other person, the nature of the relationship or value and date of receipt of the gift, and the nature of the other person’s interests in the matter.
A recent CCT decision has also considered the next step in the process, which is the procedure for allowing other councillors to vote whether there is a real or perceived conflict, and, if there is, whether the conflicted councillor must leave the meeting, or may participate. This is outlined in section 175E(4) of the LGA.
The CCT considered a scenario where the councillor summarised their conflict, and then said:
If someone wants to push me on that they’re welcome to. Right, so we’ll move on. Right on this matter, have we got anything to move the motion.
Another councillor then said:
Sorry [Councillor] did you declare an interest there or not?
To which the first councillor replied:
No, I just said that [x] act for me from time to time I don’t feel there’s any conflict not declaring anything.
In that scenario, the CCT found provided the conflict was identified (which in this case, it was), the councillor declaring the conflict did not have the obligation to initiate the vote under section 175E(4) – that obligation was held by the other councillors.
The CCT has also issued a new Practice Direction on 17 September 2019, its second of 2019, setting out the relevant process for witnesses to attend hearings to give evidence or produce documents.
The Practice Direction sets out the process that the CCT will typically follow when exercising rights under section 214 of the LGA for a witness to attend to give evidence or attend to produce specified documents.
Navigating the brave new world
With the OIA and CCT continuing to find its feet, councillors and Council officers can expect more material and more decisions.
If nothing else, the more material that is produced, the more “predictable” OIA and CCT decision-making becomes.
As the body of material produced by these offices increases, councillors and Council officers can equally be more confident on how the new provisions of the LGA will be interpreted, and exactly how to navigate the brave new world of post-Belcarra local government.
If you require advice on any aspect of the OIA or CCT processes, or the LGA generally, please contact Julian Bodenmann from our Local Government team on 4052 0717.