A new Local Government sheriff in town

Amendments to the Local Government Act 2009 (LGA), which came into force 3 December 2018, have caused an adjustment to the way in which the conduct of local government councillors are assessed in Queensland. The amendments have been responsible for the creation of the Office of the Independent Assessor (OIA) and the appointment of Kathleen Florian (formerly an executive director at the Crime and Corruption Commission (CCC)) it’s Independent Assessor.

The OIA represents the Queensland Government’s response to a litany of complaints that have been made about misconduct and corruption in Queensland local councils. The new body is a stand alone investigative authority. Although it is created through the Department of Local Government and the Independent Assessor ultimately reports to the Minister, the legislation which governs the OIA and the Independent Assessor notes that they are not subject to the direction of anyone in their investigations.

In terms of its jurisdiction, the OIA is responsible for investigating the conduct of councillors which is alleged or suspected to be:

• Inappropriate Conduct – which is essentially, a breach of a behavioural standard or local government policy, procedure or resolution; and
• Misconduct – which includes conduct impacting the honest and impartial performance of a councillors functions, the misuse of power, the misuse of information or which involves the misuse of funds. Conduct which happens outside of Queensland may still be misconduct.

Should the OIA reasonably suspect that there has been inappropriate conduct on the part of a councillor, it may refer the matter to the local government in question for it to investigate and act upon. When that happens, the local government must follow its own investigation policy – a policy it must have adopted by resolution under the amendments. The amendments also set out the disciplinary action available to a local government, if it finds there has been inappropriate conduct. The range of penalties includes reprimands and orders requiring admissions. It may also act to remove the councillor from any local government position – except that of councillor.

Where the OIA reasonably suspects misconduct, the complaint is treated differently and will be referred to a newly created body, the Councillor Conduct Tribunal (CCT)¹. Many of the former disciplinary powers of the Conduct Review Tribunal and the Local Government Remuneration and Discipline Tribunal have been folded in the CCT. This new tribunal is charged with determining if there has in fact been misconduct and if so, what penalty must be imposed on the offending councillor.

The powers conferred on the CCT are similar to those held by a local government when determining inappropriate conduct. However, the CCT may also make recommendations to the Local Government Minister for the offending councillor to be suspended or dismissed.

Separately, the OIA may also investigate alleged corrupt conduct, when the CCC refers matters to it.

The amendments to the LGA impose new obligations on local government officials, who will be required to notify the OIA about particular conduct, if they become aware of it. This extends to any instances where a local government official becomes aware that a councillor may have engaged in inappropriate conduct or misconduct. The obligation to notify sits along side the duty of a public official under the Crime and Corruption Act 2001 to notify the CCC of suspected corrupt conduct.

On a helpful note to local governments and councillors, the amendments do also include the creation of offences for making frivolous or vexatious complaints – or otherwise acting not in good faith by making a complaint. These offences can attract fines of more than $11,000.

The changes to complaints handling and the new Councillors’ Code of Conduct apply to all local governments, except for the Brisbane City Council, which is governed by the City of Brisbane Act 2010.

By its first media release, the OIA noted that almost 60 current complaints have already been referred to it by the CCC and the Department of Local Government. With the power to quickly dispose of inappropriate complaints, it has vowed to focus on complaints of a more serious nature.

The new changes represent a significant change for local governments, councillors and executives and the investigation and handling of complaints. With the Minister certain to ensure the OIA is properly resourced to allow it to remedy public perception about the manner in which their locally elected officials operate, it will become increasingly important for local governments, their executives and councillors to remain close to their legal advisors.

This article was written by Andrew Cheetham, Partner, Craig McIver, Special Counsel.

 ^1. The remuneration function previously held by the Local Government Remuneration and Discipline Tribunal is now handled by the Local Government Remuneration Committee.