As you may be aware, the NSW Government has now introduced some important new amendments to core components of the legislative regime affecting the management of local government within NSW. The amendments have been introduced through the gazettal and proclamation of:
- The Local Government (General) Amendment (Elections) Regulation 2008;
- Local Government (General) Amendment (Code of Conduct) Regulation 2008; and
- Local Government and Planning Legislation Amendment (Political Donations) Bill 2008.
The Model Code of Conduct
The first amendment of significance has been long foreshadowed, and relates to the revised Model Code of Conduct for Local Councils in NSW. As the Department of Local Government's (DLG) Circular (No 08-38) on 20 June 2008 informs, the revised Model Code follows a review by the DLG through the establishment of a reference group, which Maddocks (the only law firm) was a member.
As councils will no doubt be aware, under section 440 Local Government Act 1993, councils are required to adopt the code of conduct that incorporates the provisions of the Model Code, or a code that is consistent with the Model Code. Councils are also required to establish conduct committees to consider relevant complaints about the conduct of councillors and staff.
Rather than restate the changes to the Model Code in summary form, which the DLG has already undertaken in its Circular, we make the following points of emphasis in regards to the changes.
First, anyone can make a complaint alleging a breach of the conduct, not just the delegate of the council or councillors. This may potentially attract a higher number of complaints for councils to deal with. This also implies that council's codes of conduct should be publicly and freely available to all members of the public.
Second, the procedures for complaint handling and assessment have been fundamentally changed, in particular the composition requirements for the newly termed "Conduct Review Committee". While councils need to deal with complaints that are currently on foot in accordance with the procedures established in their current adopted code of conduct, it should be borne in mind that councils must adopt a code of conduct that incorporates the provisions of the Model Code. Council must, within 12 months of the upcoming September election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with the new Model Code. In our experience, slight variations and additions to a Code need to be carefully evaluated to ensure they go no further than "supplement" the Model Code.
The second major amendment involves the Local Government and Planning Legislation Amendment (Political Donations) Bill 2008. The Bill amends the LGA by:
- Requiring the General Manager of a council to record which local councillors voted for, and which local councillors voted against, each planning decision of the council, and requires these records to be publicly available.
- Requiring General Managers to maintain a Register recording the above. Like other registers in local government, the Register is to be made publicly available, and is to be free of charge.
- The reporting of suspected breaches of the code of conduct relating to donations to the Director General by the General Manager. The Director General may directly refer the complaint to the Pecuniary Interest and Disciplinary Tribunal for hearing and any disciplinary action against the council concerned.
The Bill also amends the Environmental Planning and Assessment Act 1979 in the following way:
- Applicants are to disclose "reportable political donations"1 and "gifts" made to a local councillor (or council staff member) within 2 years of the making of the "application" or "submission". Failure to do so constitutes an offence of 100 penalty units, or $11,000.
- The disclosure is to be made in a statement accompanying the application or submission, or if the donation or gift is made following the submission or application, then within 7 days of the donation or gift.
- The details to be included in the disclosure are also prescribed, and include the details of who is to receive the benefit, the details of the donor, as well as the amount being donated. Council's should consider making available a form with these details to applicant's or persons making submissions supporting in relation to planning applications.
In addition to the above amendments, the Local Government (General) Amendment (Elections) Regulation 2008 provide a number of complex provisions regulating the dissemination of information during the "caretaker period" or as the amendments call it, the "regulated period". The "regulated period" is a defined term within the Election Regulation, and refers to the period of time between 4 August 2008 and 6pm on election day, 13 September 2008.
These changes are also subject to a DLG Circular (No 08-39) of 27 June 2008.
Important amendments for local government managers include:
- New offence provisions are applicable during the "regulated period" regarding posters and other "electoral material" which is considered to be "non complying".
- "Electoral material" is required to be registered for distribution or display on election day.
- New offence provisions for the public display of a "poster"2 on premises "occupied or used by, or under the control or management of":
- the Crown or a NSW Government agency; or
- any council or county council.
The above changes to the administration of local government in NSW have caused a number of our local government client's to seek legal advice. We have now provided a range of discreet advices on the above amendments and would be pleased to assist you with any implementation issues you may have.
Further, we have designed the Governance Training Package for NSW Councils that incorporates the amendments of the Acts discussed in this advice, along with other governance issues. The training package has been designed in modules so that each council is able to design the package that best suits their needs.
1. Political donations of $1,000 or more are known as reportable political donations.
2. Poster is defined to mean any electoral matter printed, drawn or depicted on any material whatsoever and where any electoral matter is printed, drawn or depicted in sections, those sections, both severally and collectively are to be treated as a poster.
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.