Councils must introduce a code of conduct by 1 March 2006[1], or the Model Code of Conduct (the "Model Code"), recently released by the State for public comment, will be taken to be the applicable code for those councils that have not developed their own code[2].

DRAFT MODEL CODE OF CONDUCT

The Draft Model Code places both statutory obligations[3] as well as behavioural and ethical obligations[4] on councillors.  Councillors must comply with the obligations stated in the code of conduct[5].

Statutory Obligations

These obligations include, for example -

• disclosure of a material personal interest and the exclusion of a councillor with a material personal interest from a meeting of council[6];
• the proper keeping of registers of interests[7]; and
• the requirement for a councillor to represent the overall public interest[8].

Behavioural and Ethical Obligations

These obligations are imposed by the code of conduct and include, for example—

• the taking of steps to avoid conflicts of interest[9]; 
• ensuring the proper use of the local government's resources[10]; and
• ensuring that councillors maintain proper standards of behaviour[11].

Breaches of the Code of Conduct

Four types of breach of a code of conduct are identified in the LGA[12].  The four breaches are—

(i) a meeting breach where a councillor breaches an obligation in relation to behaviour at Council meetings;
(ii) a minor breach where a councillor breaches a specified behavioural or ethical obligation;
(iii) a repeat breach where a councillor commits one of the above two breaches a specified number of times within a specified period; and
(iv) a statutory breach where a councillor breaches a statutory obligation under the LGA.

Repeat breaches or statutory breaches may be referred to a conduct review panel for review[13]. The panel must report to the local government about its review of any complaint[14].

Penalties

Penalties under a code are to be applied only by resolution of council.  With respect to statutory breaches for which penalties apply, action may be taken against the councillor through the court system.  Councils may also apply a penalty for statutory breaches over and above any action taken through the courts[15].

Councils may also apply a penalty for Councils must also report on any breaches of, and performance against, the code in its annual report each year[16].

Conclusion

Councils must adopt a code of conduct by 1 March 2006.  Councils can choose to adopt the Model Code of Conduct for Councillors following its final approval by the Minister.  Alternatively, Councils can develop their own code, based on requirements under the LGA, to suit their particular circumstances.
If a council has not adopted the Model Code or developed their own code by 1 March 2006, the Model Code will be deemed to be the code of conduct for that council.

For further information please contact one of our Local Government team:

• Mal Skipworth - 4030 0620
• Oliver Gilkerson - 3031 9714   
• Picha Djohan - 4030 0573
• Jenny Humphris - 3031 9720   
• Andrew Kerr - 4030 0564                                  
• Tanya Knauer - 4030 0617  
• Stephanie Sanders - 3031 9729        
• Enrique Mendoza - 4030 0500

Government Solutions is a newsletter intended only to provide general information about current legal issues and does not constitute, nor should it be used or treated as, professional or legal advice.  Readers should make their own enquiries or seek legal advice before making any decisions concerning their own interests.

[1]        See Section 250C LGA.

[2]        See Section 250D LGA.

[3]        See Cl. 3.1 and 3.2 of the Draft Model Code available on the Department of Local Government and Planning's Website.

[4]        See Cl. 3.3 of the Draft Model Code.

[5]        See section 243A LGA.

[6]        See Section 244 LGA.

[7]        See Section 247 LGA.

[8]        See Section 229(1)(a) LGA.

[9]        See Cl. 3.3.2.1 of the Draft Model Code.

[10]        See Cl. 3.3.2.2 of the Draft Model Code.

[11]        See Cl. 3.3.2.4 of the Draft Model Code.

[12]        See Section 250M LGA.

[13]        See Section 250V(1) LGA.

[14]        See Section 250V(2) LGA.

[15]        See Section 250X LGA.

[16]        See Cl. 7 of the Draft Model Code.