Introduction
As the newly appointed 2020 Local Government mayors and councillors across Queensland settle into their electorates and new (or for some, renewed) responsibilities, it is timely to highlight their legal obligations under the reformed local government regulatory framework.
The reforms came off the back of 31 recommendations made by the Crime and Corruption Commission in their final report delivered on 4 October 2017 as part of 'Operation Belcarra'. Included in these reforms was the establishment of the Office of the Independent Assessor (OIA) aimed at facilitating the return of good government.
Amnesty period announced
On 5 May 2020, the OIA announced a three-month amnesty would apply to first-time mayors and councillors who become the subject of minor misconduct complaints.
Independent Assessor Kathleen Florian says the OIA's announcement is a short-term measure intended to support new mayors and councillors, those without prior experience in local government, to give them the confidence to understand their new responsibilities and legal obligations whilst they are working to support the community during the COVID-19 pandemic.1 The amnesty is effective until 5 August 2020.
Any misconduct complaints made to the OIA against the conduct of first-time mayors or councillors during the amnesty period will be assessed as part of normal procedure, however those identified as minor complaints will not be formally investigated. Officers the subject of minor misconduct complaints will receive feedback from the OIA about their legal obligations and may receive targeted training where necessary.
Serious misconduct complaints will continue to be investigated by the OIA, such as failure to declare conflicts of interests, taking of reprisal action or where there has been an intentional breach of their legal obligations.
Local Government Minister, Stirling Hinchliffe has expressed support for the amnesty, as has Local Government Association of Queensland Chief Executive, Greg Hallam who see it as a welcomed measure that will allow the first-time elected representatives more time to settle into their positions given the challenging circumstances of the current pandemic.2
Despite the amnesty, it is important that all elected representatives understand their legal obligations and adhere to the principles of good government – equity, transparency, integrity and accountability.
Legal obligations
Local mayors and councillors must comply with their obligations under the Local Government Act 2009 (Qld) (the Act) and the standards of behaviour detailed in the recently amended Code of Conduct for Councillors. The Act is founded on five local government principles with which all mayors and councillors must comply when performing their duties:
- Transparent and effective processes, and decision-making in the public interest.
- Sustainable development and management of assets and infrastructures, and delivery of effective services.
- Democratic representation, social inclusion and meaningful community engagement.
- Good governance of, and by, local government.
- Ethical and legal behaviour of councillors and local government employees.3
Key obligations under the Act include declaring material personal interests, and real or perceived conflicts of interests during council meetings.4 Councillors also have a duty to report other councillor's where they reasonably believe they have a material personal interest or conflict of interest for the matter being discussed during a council meeting.5 It is an offence for any councillor to take reprisal action against another councillor for having reported them in accordance with their duty under the Act.6
Getting your house in order
The Queensland Government is continuing with its rolling reform agenda through the requirements in the updated Code of Conduct for Councillors in Queensland (issued on 7 April 2020), and the proposed 'Trad laws' (being the Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Bill 2019). Even though the Trad laws have not yet passed, and will be the subject of further consideration, it remains important to take the time now to review and update compliance systems with the new declared information from the appointed mayors and councillors. Local governments should ensure all councillor Register of Interests are up to date and any changes to their interests or their related persons' interests have been reported.
It is important to take the time now to review and update compliance systems with the new declared information from the appointed mayors and councillors. Local governments should ensure all councillor Register of Interests are up to date and any changes to their interests or their related persons' interests have been reported.
Ensure all councillors are trained in identifying conflicts of interest and understand the process for reporting. This may identify whether any additional or targeted training is required and you may wish to consider the training programs offered by the OIA which aims to educate councillors on their legal obligations in order to avoid them becoming the subject of complaints.
One of the key issues is to recognise the need for ongoing vigilance in declaring interests, particularly in the context of procurements and projects in which councils are involved. In our experience, there can be a tendency to declare at the beginning of a procurement process and not revisit this at later intervals in the procurement. Internal procurement plans should account for regular notifications to councillors and mayors at relevant milestones to act as a reminder.
Footnotes
1 Office of the Independent Assessor, 'OIA announces amnesty for first-time councillors' (Media Release, 5 May 2020) < https://oia.qld.gov.au/office-of-the-independent-assessor/media-and-publications/media-releases/oia-announces-amnesty-for-first-time-councillors.html>.
2 Rebecca Hyam and Talissa Siganto, 'First –time councillors granted a 'fair go' with three-month amnesty during coronavirus pandemic', ABC News (online), 5 May 2020 < https://www.abc.net.au/news/2020-05-05/queensland-first-time-councillors-3-month-amnesty-poor-behaviour/12213512>.
3 Local Government Act 2009 (Qld) s 4.
4 Local Government Act 2009 (Qld) s 175C and 175E.
5 Local Government Act 2009 (Qld) s 175G.
6 Local Government Act 2009 (Qld) s 175H.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
