Special Meeting of Council Council Chambers, Service Centre 275 Upper Heidelberg Road, Ivanhoe 9 May 2016 commencing at 7.00pm
AGENDA
Acknowledgement of the Traditional Owner, the Wurundjeri willam people "Our meeting is being held on the Traditional Land of the Wurundjeri willam people and, on behalf of Banyule City Council, I wish to acknowledge them as the Traditional Owners. I would also like to pay my respects to the Wurundjeri Elders, past and present, and to the Elders of other Aboriginal peoples who may be here today.� Apologies and Leave of Absence
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Closure of Meeting
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COUNCILLOR CODE OF CONDUCT - REVIEW
Author:
Vivien Ferlaino - Governance Co-ordinator, Corporate Services
EXECUTIVE SUMMARY The Local Government Act 1989 Act (The Act) section 76C requires each council to adopt a Councillor Code of Conduct (the Code). The reforms arising from the Local Government Amendment (Improved Governance) Act 2015 require councils to review and comply with new requirements for the Councillor Code of Conduct by 4 July 2016. A special meeting must be called solely for the purpose of reviewing the Councillor Code of Conduct. On 4 April Council set this meeting for the 9 May 2016. The new requirements include: • • • •
The Code must include an internal resolution process for addressing alleged contraventions of the Councillor Code of Conduct. Internal resolution process will provide for the appointment of an independent arbiter. Each Councillor must read and make a declaration stating that they will abide by the revised Councillor Code of Conduct and that the Code be signed by all Councillors and witnessed by the CEO. New Conduct provisions.
Council will also be required to review the Code within 4 months after the General election. RECOMMENDATION That: 1.
Council, adopt the reviewed Banyule Councillor Code of Conduct.
2.
It be noted Councillors (insert names) signed and declared in writing to abide by the Councillor Code of Conduct at all times, and that this declaration was made in front of, and witnessed, by the Chief Executive Officer as required under Section 76C(6B) of the Local Government Act 1989.
OFFICER DECLARATION OF CONFLICT OF INTEREST Section 80C of the Local Government Act 1989 (Act) requires members of Council staff, and persons engaged under contract to provide advice to Council, to disclose any direct or indirect interest in a matter to which the advice relates. Council officers involved in the preparation of this report have no conflict of interest in this matter.
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COUNCILLOR CODE OF CONDUCT - REVIEW cont’d CITY PLAN This report is in line with Council’s City Plan key direction to “enable good governance and accountability with minimal risk”. BACKGROUND The new provisions of the Local Government Amendment (Improved Governance) Act 2015 are now effective. The Amendment Act contained substantial reforms to the Councillor Conduct framework and the governance requirements for Councils The key changes relating to the Conduct framework, include: • • • • •
Requiring newly elected councillors to make a declaration that they will abide by the Council's Councillor Code of Conduct (the Code). Introducing a mandatory internal resolution procedure within Councils. Make improvements to the Councillor Conduct panels including the capacity for panels to hear serious misconduct matters. Strengthening powers of the Chief Municipal Inspector ('CMI'), and allow the Minister to seek an order in Council to stand down problematic Councillors. Two new offences for breach of confidentiality and directing staff. An offence under these provisions will now invoke a penalty of up to 120 penalty units (over $18,000) which is on a par with breach of the conflict of interest provision of the Act.
The Code is designed to assist Councillors in maintaining the highest standards of conduct and behaviour as well as provide a means for dealing with conflicts which may occur. The Code is also intended to assist the Mayor, Deputy Mayor and Councillors to discharge their public office appropriately. On 4 April Council set a Special meeting for the 9 May 2016 for the Councillor Code of Conduct review. Public notices were placed in the Heidelberg and Diamond Valley leader on the 19 and 20 April 2016, the public notice was also displayed at Council’s services centres and on Council’s website. HUMAN RIGHTS CHARTER Victoria's Charter of Human Rights and Responsibilities (the Charter) outlines the basic human rights of all people in Victoria. The Charter requires that governments, local councils and other public authorities comply with Charter and to consider relevant Charter rights when they make decisions. In developing this report to Council, the subject matter has been considered in accordance with the requirements of the Charter of Human Rights and Responsibilities. It is considered that the Councillor Code of Conduct supports human rights issues.
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COUNCILLOR CODE OF CONDUCT - REVIEW cont’d Your right to privacy and reputation The additional conduct provisions for Councillors to recognise the requirements of the Privacy & Data Protection Act, Banyule’s Privacy Policy and Records Information Management Policy regarding access, use and release of personal information, which also applies to Councillors, further enhances this right. Your right to freedom of thought, conscience, religion and belief and Your right to freedom of expression The Code includes the conduct provisions of: • •
Treating all people with courtesy and respect, recognising that there are legitimate differences in opinions, race, culture, religion, language, gender and abilities. Not making allegations which are personally offensive, derogatory or defamatory.
LEGAL CONSIDERATION COUNCILLOR CODE OF CONDUCT REQUIREMENTS Under the new requirements introduced by the Amendment Act, Council must review the Councillor Code of Conduct and make any necessary changes at a Special meeting of the Council called solely for that purpose by 4 July 2016. The Code must include an internal resolution process for addressing alleged contraventions of the Councillor Code of Conduct, which amongst other things, provides for the selection of an independent arbiter. The MAV has developed a draft Councillor Code of Conduct designed to meet the requirements of the recent changes to the Act. The draft Code provides a minimalist compliance approach. Officers recently attended a training session undertaken by Macquarie Lawyers to discuss the requirements of the Act and the draft Code includes items discussed at the session along with elements of the MAV draft Model code. DECLARATION Within one month of any amendment being made to the Councillor Code of Conduct, all Councillors must make a declaration stating that they will abide by the revised Councillor Code of Conduct. This declaration must be signed and witnessed by the CEO (section 76C of the Act). A failure to make a declaration to abide by the Councillor Code of Conduct is now a ground for disqualification as a Councillor. PUBLIC ACCESS The Councillor Code of Conduct must be made publically available on Council’s website, this must be done as soon as practicable after it is adopted.
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COUNCILLOR CODE OF CONDUCT - REVIEW cont’d INTERNAL RESOLUTION PROCEDURE Section 81AA of the Act requires Council to develop and maintain an internal resolution procedure for the purposes of addressing an alleged contravention of the Councillor Code of Conduct by a Councillor. The internal resolution procedure of a Council must— (a) (b) (c) (d)
be specified in the Councillor Code of Conduct; and incorporate any prescribed processes including any application process; and provide for the selection of an arbiter who is suitably independent and able to carry out the role of arbiter fairly; and specify the role an arbiter is expected to undertake in the conduct of any internal resolution procedure including that the arbiter must.
POLICY IMPLICATIONS - BANYULE’S DRAFT CODE OF CONDUCT Council’s Code of Conduct has been as revised (attached) to include the new requirements of the Improved Governance Act. It is envisaged that Council will undertake a major review after the general election as it did in 2013 post the 2012 elections. CHANGES • • • • •
Roles of Councillors, Mayor and CEO updated and new definitions incorporated in Code. Internal resolution process updated to ensure compliance with the Act including appointment of an Arbiter. Use of notes to reference legislation. Updated language. Code to also apply to manage complaints against Councillors from the public or staff to avoid the matter escalating directly to the Ombudsman or the Chief Municipal Inspector (CMI).
Independent Arbiter It is critical that when allegations of poor conduct are levelled against a Councillor that these are fairly tested. Accordingly, the internal resolution procedure must include an independent arbiter who is able to consider alleged violations of the Code of Conduct and make final determinations on them fairly and without bias. Persons subject to allegations must be given an opportunity to be heard. Decisions by the arbiter must be supported by written reasons. The MAV has approved an expression of interest process to establish a local government panel of arbiters. The MAV advised that expressions of interest will be invited shortly. It is intended to have the local government arbiter’s panel in place by the end of June 2016. MAV will publish a list of arbiters on its website and Councils will be able to directly engage with an arbiter of their choice.
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COUNCILLOR CODE OF CONDUCT - REVIEW cont’d Sanctions for breaches of the Code Section 81AB specifies that councils may impose sanctions through their internal resolution procedure for breaches of their Code. These must be voted on by council as a whole and they may include: • • • •
Requiring an apology. Suspension from up to two Council meetings. Direction that they not attend or chair an advisory or special committee for up to two months. Direction that they be removed from a position where they represent Council for up to two months.
These sanctions are aimed at ensuring Councillors know the consequences of their actions in breaching the standards of behaviour that they, as Councillors, have adopted. The sanction framework is designed to assist councils assume responsibility for resolving behavioural and conduct issues occurring within the council. The primacy given to councils addressing councillor conduct internally is reinforced by the way applications to establish panels are dealt with. The Principal Councillor Conduct Registrar is required to refer matters back to a Council to resolve if the internal Council Code process has not been exhausted prior to an application for a panel. Principal Councillor Conduct Registrar The Principal Councillor Conduct Registrar (PCCR) is a new appointment that sits within Local Government Victoria and is responsible for receiving applications for Councillor Conduct Panels and determining whether panels should be formed. In determining whether to form a panel, the PCCR must be satisfied that: • • •
An application is not frivolous, vexatious, misconceived or lacking in substance; and There is sufficient evidence to support an allegation of misconduct or serious misconduct; and The Council has taken sufficient or appropriate steps to resolve the matter or has provided satisfactory reasons for not taking the steps
A new Council role of Principal Conduct Officer (PCO) has also been created within the Act to assist the PCCR in their role. The PCO must be a Council Officer and is similar to the previous role of the Councillor Conduct Panel (CCP) Registrar. The PCO must be a Senior staff member (other than the CEO). The CEO appointed the Manager of Governance & Communication on 7 March 2016. This position previously held the CCP Registrar role for Banyule.
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COUNCILLOR CODE OF CONDUCT - REVIEW cont’d Conduct Management The Councillor Conduct Framework is aimed at ensuring Councillors conduct themselves in accordance with standards expected. This includes the standards Councillors collectively set themselves in their Councillor Codes of Conduct. These reforms create a hierarchy for management of councillor conduct issues, with: • • •
councils dealing with breaches of Councillor Conduct Codes; Panels dealing with the majority of cases; VCAT dealing with exceptional cases.
Section 3(1) provides new definitions. These new definitions for misconduct, serious misconduct and gross misconduct are summarised in the table below, along with the authority responsible for addressing the matter. Degree of Seriousness Conduct inconsistent with standards Council has set itself Misconduct
Serious misconduct
Gross misconduct
Definition Breaches of Councillor Codes of Conduct
Responsible Authority Council
Failing to comply with a Council’s internal resolution procedure, including failure to abide by any decision of Council in relation to a breach of the Code and repeated breaches of Councillor Conduct Principles Failing to comply with panel processes, bullying, improperly directing staff, releasing confidential information and repeated misconduct Behaviour that demonstrates lack of character to be a Councillor
Panel
Panel
VCAT
Bullying which is a form of serious misconduct is defined as repeated unreasonable behaviour that creates a risk to the health and safety of another councillor or a member of council staff. This is consistent with the definition of bullying used in the Fair Work Act 2009 and by WorkSafe. The new hierarchy for management of councillor conduct issues is designed to: • • • •
Reinforce the responsibility and authority of councils to manage breaches of agreed conduct through a mandatory internal resolution procedure Only escalate management of misconduct and serious misconduct to panels when councils cannot resolve the matter internally Give panels greater powers to manage and resolve misconduct and serious misconduct Retain the capacity to manage gross misconduct through VCAT
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COUNCILLOR CODE OF CONDUCT - REVIEW cont’d TIMELINES Council is required to review and adopt its Code of Conduct by 4 July 2016. Council will also be required to review and adopt a Councillor Code of Conduct within 4 months after a general election. CONCLUSION The Councillor Code of Conduct has been developed in accordance with Council’s obligations under the Act. The Councillor Code of Conduct is an important document for Councillors as it sets out the expected and legislated behaviours and conduct of Councillors to ensure they serve the Banyule community with a high degree of integrity and honesty.
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