The video below is a recording of the Webinar that ran on Wednesday 26 October 2016. It focused on the following key areas:
- Parliament’s role in creating legislation for Local Government;
- how to read the
Local Government Act 1995 and Regulations;
- who does what at a Local Government;
- a Councillor’s personal responsibilities; and
- consequences of improper conduct.
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Question and Answer Session
The following are a range of questions asked during and after the Local Government Act for Elected Members webinar held by WALGA on 26 October 2016:
The webinar states that when voting at Council and Committee meetings no voter’s vote is secret.
Are there any exceptions to that requirement?
Local Government (Administration) Regulations 1996 Regulation 9, voting at council and committee meetings is conducted so that no voter’s vote is secret. There are two exceptions to this requirement:
- when Council
elects a Mayor
President under Schedule 2.3, Division 1 of the Local Government Act 1995; and
- when Council
elects a Deputy Mayor
Deputy President under Schedule 2.3, Division 2 of the Local Government Act 1995
In all other matters voting must be conducted so that no voter’s vote is secret.
Under the new Gift provisions, are Elected Members obligated to disclose gifts received prior to their election?
A candidate in a Local Government election is required to disclose gift/s received from any one person with an
aggregated valued of $200 or more during the electoral period (this being 6-months prior to the Election Day and concluding 3-days after the Election Day). The Act excludes gifts received by a will, from a relative (as defined in s.5.74(1)), a gift that does not relate to the candidates candidature and the provision of volunteer labour.
Sitting members who are candidates for re-election are required to comply with election gift provisions and the broader gift disclosure requirements of the Local Government Act and Rules of Conduct Regulations.
Is the Code of Conduct of a Shire binding like the Local Government (Rules of Conduct) Regulations 2007 and the Local Government Act 1995?
Does a Code of Conduct come under the scrutiny of the Local Government Standards Panel?
The Local Government Act 1995 states:
5.103. Codes of Conduct
- Every Local Government is to prepare or adopt a Code of Conduct to be observed by Council Members, committee members and employees.
Code of Conduct has the status of a policy and is not enforceable for Elected Members. Attempts by some WA Local Governments to provide a Code of Conduct the status of a local law were unsuccessful, which limited the capacity to enforce their code.
It should also be noted that the review of the Local Government (Rules of Conduct) Regulations 2007 and Minor Breach Disciplinary Framework by the Department of Local Government and Communities made recommendations to amend The Rules of Conduct Regulations to link to a Local Government’s Code of Conduct.
If this recommendation is adopted it will bring the scrutiny of the Code of Conduct in relation to Councillors under the Local Government Standards Panel.
Can you explain the new legislation/rules regarding gifts please?
City of Perth Act 2015
came into effect in March 2016 and only made minor amendments to the way a gift over the value of $200.00 is to be disclosed. Whereas this information used to be disclosed in an Elected Member’s Annual Return, it is now required to be
disclosed to the CEO within 10 days of receiving the gift and the following information placed on the Local Government’s website:
- a description of the gift;
- the name and address of the person who made the gift;
- the date on which the gift was received;
- the estimated value of the gift at the time it was made;
- the nature of the relationship between the relevant person and the person who made the gift.
It is an offence under section 5.89B and 5.89 to not disclose a gift or to make false statements in regard to a gift. The penalty is $10,000 or two years imprisonment.
Please note that these requirements are separate and in addition to the disclosure of gifts under the Local Government (Rules of Conduct) Regulations 2007 related to notifiable and prohibited gifts i.e. gifts between the value of $50 and $300.
Can a Councillor’s spouse or partner be employed by the Local Government that the Councillor represents?
Yes. While a Councillor of a Shire may not be employed by the Shire that they represent, the Act does not prevent a spouse or partner of that Councillor from being employed by the Shire. The Chief Executive Officer is responsible for the appointment of all employees.
What is the procedure for advising the public of the result of a Council decision made "behind closed doors"? Is it the proper procedure to conduct the debate behind closed doors, then take the vote publically?
Matters which have been determined as
under Section 5.23(2) of the Act,
will generally be debated and voted on by Council behind closed doors. Then, once Council has voted to reopen the meeting, and the public has returned to the public gallery, the Presiding Member will read aloud the decision made behind closed doors, including if applicable, the manner of each member’s vote, causing both the decision and voting information to be recorded in the publicly available Minutes.
There is no specific requirement for Council’s vote to occur in public. The Act requirements are for the decision to be recorded in the Minutes and for a voter’s vote not to be secret.
Could you please qualify
conflict of interest when Councillors are voting on motions involving Clubs they are members or committees members of? Is a Councillor who is a member of a club that receives money from Council able to vote on a motion concerning the club?
The interest alluded to in the questions refers to an impartiality interest. Under Regulation 11 of the Local Government (Rules of Conduct) Regulations 2007 an interest is defined as “an interest that could, or could reasonably be perceived to, adversely affect the impartiality of the person having the interest and includes an interest arising from
kinship, friendship or membership of an association
A Councillor would be required to
declare an impartiality interest; but unlike declaring a financial, indirect financial or proximity interest would not need to leave the room and can participate in the meeting, including debating and voting.
The situation would be different if a Councillor was remunerated for a role they performed on behalf of a club, as this would create a financial interest under Section 5.60A of the Local Government Act 1995.
What are the separate roles of the Council and the Administration?
The Act specifically describes separate roles for the
Council, and the
CEO as the head of the Administration.
The Council’s role (S2.7) is to govern the Local Government’s affairs, setting the direction for the Local Government and be responsible for the performance of the Local Government’s functions. This includes overseeing the allocation of the Local Government finances and resources and determining the Local Government’s policies.
CEO’s functions are set out in Section 5.41, being to:
- advise council in relation to the functions of a Local Government under this Act and other written laws;
- ensure that advice and information is available to the council so that informed decisions can be made;
- cause council decisions to be implemented;
- manage the day to day operations of the Local Government;
- liaise with the mayor or president on the Local Government’s affairs and the performance of the Local Government’s functions;
- speak on behalf of the Local Government if the mayor or president agrees;
- be responsible for the employment, management supervision, direction and dismissal of other employees (subject to section 5.37(2) in relation to senior employees);
- ensure that records and documents of the Local Government are properly kept for the purposes of this Act and any other written law;
- perform any other function specified or delegated by the Local Government or imposed under this Act or any other written law as a function to be performed by the CEO.
The Rules of Conduct Regulations prohibit Council Members from undertaking a task that contributes to the administration of the Local Government, unless the Council Member is authorised by the Council or by the CEO to undertake that task.
Why is a CEO's remuneration package confidential from ratepayers?
A CEO’s remuneration package is not confidential from the public. Amendments to section 5.39(7) of the Act now provide for a CEO’s remuneration to be determined by the
Salaries and Allowances Tribunal under the Salaries and Allowances Act 1975.
Under s. 5.94 of the Local Government Act 1995, a member of the public has the right to inspect the contract of the CEO. Further, s. 5.95(5) states:
- A person’s right to inspect information referred to in section 5.94 does not extend to the inspection of information referred to in paragraph (t) of that section if -
- the information relates to a matter other than the salary or the remuneration or benefits payable under the contract; and
- the information is prescribed as being of a private nature.
Therefore, a ratepayer may view the contract and be aware of the remuneration under the Salaries and Allowances Act 1975.
Are Regulations mandatory or just guidelines?
Regulations provide more detailed procedures that are to be followed in support of the Act. The Regulations have the full force of the Act and are therefore
mandatory for compliance.
Some Codes of Conduct refer to a requirement that a Councillor be ‘fit’ to be a Councillor. What does that mean?
Under the Local Government (Rules of Conduct) Regulations 2007 Regulation 3 states:
General principles to guide the behaviour of council members
- General principles to guide the behaviour of Council Members include that a person in his or her capacity as a Council Member should
- not be impaired by mind affecting substances.
The extension of this principle is that Councillors should not, when acting in their capacity as a Council Member, be impaired by drugs or alcohol. It does not prevent a person from being a Councillor due to physical disability provided that the person has the capacity to undertake the duties of a Councillor and meet the requirements to be elected.
The Regulations are not intended to capture a situation whereby an Elected Member is taking prescribed medication under direction of a medical practitioner. In this case, an Elected Member would have to exercise their own judgement as to whether or not the medication is influencing their ability to effectively represent their community.
Some decisions are made behind closed doors. The Minutes might state “That the Officer’s recommendation be adopted" the public reading the Minutes is no wiser on what the decision was. Is this transparent?
A motion to adopt an officer’s recommendation should be moved as the
full text of the Officer’s recommendation rather than expressed as “That the Officer’s recommendation be adopted”. For example:
Councillor A, Seconded
[full text of the officer recommendation inserted here]
What happens to election votes once an election is over? Are they destroyed? Or kept on file? Is it correct that Councillors cannot request to see election ballot papers?
Electoral Regulation 82 requires the Returning Officer, after the result of the Election has been declared, to collect the election papers and secure them into one or more parcels, signing and dating each parcel. The CEO is then required to
keep the parcels
in safe custody for a period of at least
4 years after the declaration of the Election result.
Once the election papers are sealed in parcels, they may only be opened for inspection:
- by a Court of Disputed Returns,
- by the Department of Local Government CEO;
- by an Inquiry Panel;
- by the Returning Officer for the purposes of preparing the Election Report;
- by the Electoral Commissioner or Returning Officer for the purposes of an investigation; or
- in accordance with a Court order.
If, after 4 years has elapsed, the CEO has not been required to produce the parcels for these purposes, the CEO may destroy the parcels in the presence of at least 2 employees.
If an item is on sale at the local shop and the item is discounted over $100 dollars as a sale item does that need to be declared as a gift?
A discount in the scenario above
would not meet the definition of a gift. A Councillor who purchases goods where the discount is open to all customers is not required to declare the discount as a gift, as they have
not received a personal benefit.
In the Department of Local Government and Communities Special Governance Bulletin March 2016, reference was made to a similar scenario in Case Study 5. However, the difference in that scenario to the one above was that the Councillor who was shopping for a new fridge, was recognised by the salesman and was provided a further discount on the item than that which was available to the general public, due presumably to the Councillor’s status. This triggered the receipt of the personal benefit and the requirement to declare the amount of the additional discount as a gift.
How much of the Act should a CEO be familiar with?
A Local Government CEO should be familiar with the
Local Government Act and Regulations. Recognising however that the Act and Regulations comprise approximately 1200 pages of complex legalisation, a CEO may not always be in a position to immediately recall specific detail or nuances. For this reason, it would be unreasonable to expect the CEO to memorise the content of the Local Government Act and associated Regulations.
When advice is sought, it is beneficial to allow time for the specific issue to be researched and comprehensive advice provided.
How is the vote on a motion in committee (i.e. behind closed doors) to be recorded, and how is it accessed later?
The Act requirements for recording motions and decisions do not differ for matters considered by Council in open session, or behind closed doors. Administration Regulation 11 requires that, in regard to motions and decisions, meeting minute’s record as a minimum:
- details of each motion moved at the meeting, the mover and the outcome of the motion;
- details of each decision made at the meeting; and
- written reasons for each decision made which is significantly different from the recommendation of a committee or employee.
Of course, matters considered behind closed doors under Section 5.23(2) of the Act are confidential therefore it would be inappropriate to disclose confidential information when recording the decision in the Minutes. As the webinar suggests, a decision such as “That Council adopt the recommendation as contained in the confidential schedule” would be suitable for the purpose of the Minutes.
Does asking for a “division” mean that the names of those members voting for and against are recorded in the Minutes?
Section 5.22(4) of the Act, enables a member to request that a record of their vote, or the vote of all members present on a matter voted at that meeting, be recorded in the Minutes. “Asking for a division” is generally understood to be a request in accordance with Section 5.22(4).
With CEO Performance Review is all feedback always given to CEO? (i.e. transparency of who said what?)
The Local Government (Administration) Regulations 1996 regulation 18D states:
D. Performance review of CEO, Local Government’s duties as to
A Local Government is to consider each review on the performance of the CEO carried out under section 5.38 and is to accept the review, with or without modification, or to reject the review.
There is no requirement to detail individual Councillor responses to matters discussed during the CEO Review process, however a consensus view of the Council’s assessment of performance should be disclosed and discussed with the CEO.
Is the requirement to go behind closed doors legislated by the Standing Orders Local Law or is it in the Local Government Act 1995 and Regulations?
It is only under Section 5.23(2) of the Local Government Act. Unless for a specific purpose as stated below, meetings are to be
open to the public.
- a matter affecting an employee or employees; and
- the personal affairs of any person; and
- a contract entered into, or which may be entered into, by the Local Government and which relates to a matter to be discussed at the meeting; and
- legal advice obtained, or which may be obtained, by the Local Government and which relates to a matter to be discussed at the meeting; and
- a matter that if disclosed, would reveal —
- a trade secret; or
- information that has a commercial value to a person; or
- information about the business, professional, commercial or financial affairs of a person, where the trade secret or information is held by, or is about, a person other than the Local Government; and
- a matter that if disclosed, could be reasonably expected to —
- impair the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law; or
- endanger the security of the Local Government’s property; or
- prejudice the maintenance or enforcement of a lawful measure for protecting public safety; and
- information which is the subject of a direction given under section 23(1a) of the Parliamentary Commissioner Act 1971; and
- such other matters as may be prescribed. The Local Government (Administration) Regulations 1996 regulation 4A includes the determination by the Local Government of a price for the sale or purchase of property by the Local Government, and the discussion of such a matter, are matters prescribed for the purposes of section 5.23(2)(h).
A decision to close a meeting or part of a meeting and the reason for this decision taken from Section 5.23(2) are to be recorded in the Minutes of the meeting.
Referring to the DLGC advice that a Gift declaration is required where a Councillor obtains a discount or benefit based upon their being recognised as a Councillor (i.e. it is not a discount or benefit that is otherwise generally available to the public), do Councillors have a Gift disclosure obligation for the price difference saving when shopping outside their Local Government District?
The same answer applies as stated under Question 15.
Councillors are entitled to shop around and take advantage of discounts and sales that are available to any member of the public for personal expenditure items with no gift disclosure obligations arising. The location of the shop is immaterial.
Can the public ask how particular Councillors voted at a meeting?
Under section 5.25(1)(d) of the Local Government Act 1995 and Local Government (Administration) Regulations 1996 Regulation 9 states that
voting is to be open so that no voter’s vote is secret.
A Councillor may request under s. 5.21 of the Local Government Act 1995 that:
If a member of a council or a committee specifically requests that there be recorded -
on a matter voted on at a meeting of the council or the committee, the person presiding is to cause the vote or votes, as the case may be, to be recorded in the Minutes.
- his or her vote; or
- the vote of all members present,
A member of the public cannot request that the Council record the votes. Only a Councillor may request that. However, after the event a member of the public might ask you personally how you and other Councillors voted. You have the discretion to inform how you voted, but
it would be inappropriate to comment on other Councillors votes if this information was not recorded in the Minutes.
If a complaint is made during an election, is the complainant kept anonymous?
The Department of Local Government and Communities (DLGC) Returning Officer Manual describes the complaints handling protocol for Returning Officers. This protocol requires Returning Officers to retain a written record of all complaints, detailing the name and contact details of the complainant, the date and details of the complaint and the actions taken in response to the complaint.
Whilst there is no requirement to keep a complainant’s identifying information confidential,
a Returning Officer will use their discretion when determining how to handle a complaint.
For more detailed information, the DLGC Returning Officer Manual is