Councillors accused of significant misconduct will have proceedings commenced against them in the Land and Environment Court under planned changes by the State Government.
Minister for Local Government Ron Hoenig said the current process for holding councillors to account for serious misconduct was too weak and hamstrung by procedural complexity.
“Currently, a councillor can only be suspended after a bureaucrat in the Office of Local Government has written a report,” he said.
“The system is long, slow, and ineffective.”
Councillor misconduct matters are heard by the NSW Civil and Administrative Tribunal (NCAT).
Hoenig said it was a slow process which historically could take years to resolve matters that needed to be dealt with quickly to preserve public trust in local government.
“The proposed move to the Land and Environment Court would provide a more streamlined process to deal with rogue councillors whose behaviour presents a risk to other councillors, council staff and the community,” he said.
“The Land and Environment Court is a Superior Court, has substantial expertise in local government matters and already deals with most of the Local Government Act litigation.”
The government’s proposed changes would allow proceedings alleging misconduct from a minister or a government body, or any other person with leave of the Court.
Should misconduct be established, and it is in the public interest to do so, the Court may disqualify the councillor for a period of up to five years, suspend the councillor, fine the councillor and order restitution.
The Court will have the power to immediately suspend a councillor pending final hearing of the proceedings, if the Court considers it to be in the public interest.
The Court will have the power to order costs including indemnity costs, should proceedings be commenced vexatiously.
The change of jurisdiction complements a suite of changes, including a new Model Code of Meeting Practice that was announced on Friday, August 29.
Other changes to come include an updated Code of Conduct that is designed to be an easier and simpler code, with a separate Code of Conduct for council staff.
Also coming is a new regulation which will be an expansion of the interests that councillors need to declare, similar to the new regulations that will govern NSW Members of Parliament.
Hoenig said guidance on free speech to support fair and open debate and significant ongoing investment in the Office of Local Government to increase its capacity and ability to fulfil its role as a regulator of the sector.
Legislation to enable the change of jurisdiction to the Land and Environment Court will be introduced to Parliament in this parliamentary session.
“I believe that elected councillors who have committed serious misconduct should only be suspended from office by a judge of a superior court who has heard from both sides,” Hoenig said.
“Preventing and delaying action to address misconduct in councils has eroded public trust in local government.
“The Court will deal with serious matters, ending the misuse of the code of conduct framework as a means to settle political squabbles.
“I have consulted with the Attorney General and Chief Judge of the Land and Environment Court, and further consultation will be undertaken with key stakeholders on the legislation to amend the Local Government Act.
“Misbehaviour that threatens the safety of councillors, council staff and the community has no place in local government and will not be tolerated.”
Councillor Jared Wright said he thought it was good that the Minister was looking to expedite reviews for serious misconduct and he agreed that the current process was too slow.
“It is fair to say our community would expect that such matters are dealt with in days and weeks, rather than in some cases, years,” Wright said.
“The Land and Environment Court deals with most litigation at a local government level, so I am interested to see how this process would work in practice over time.”
Councillor Corinne Lamont said anything that made the rules clearer and easier to understand, without ambiguity, had to be a good thing.
“If these changes mean greater trust, transparency and less political game playing, then that can only strengthen local government,” Lamont said.
“I can also see merit in moving serious misconduct matters to the Land and Environment Court, as Minister Hoenig suggests.
“Having decisions made quickly and by a superior court instead of NCAT, could prevent misuse of the Code of Conduct framework for political point scoring, which I believe is a real issue.
“If the system becomes fairer, faster, and more consistent for all, while still protecting the rights of councillors to be heard properly, then I think it’s a step in the right direction, although it may not be perfect straight up.”
Councillor Margot Castles said she thought it was a positive step forward for local government democracy and accountability if it meant that councillors behaving badly and thus creating an unsafe environment for other councillors and council officers by their unacceptable actions were dealt with in a more efficient manner through the Land and Environment Court.
All councillors were asked to comment.
Merilyn Vale
A recent case against the minister in the LEC took 12 months and saw his illegal actions approved by the Court, that didn’t even realise the relevant law only applied to elected officials!