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A new Model Code of Conduct for Local Councils

On 7 August 2020, the NSW Government published the Model Code of Conduct for Local Councils in NSW 2020 (Model Code), along with the new Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW 2020 (Model Procedure), which replace the 2018 iterations.

The Model Code and Model Procedure have binding force on local government officials, pursuant to sections 440(5) and 440AA(5) respectively of the Local Government Act 1993 (NSW) (Act).

The Model Code continues to set the minimum conduct standards for council officials, aiming to assist council officials to:

  • understand and comply with the standards of conduct expected of them
  • enable them to fulfil their statutory duty to act honestly and exercise a reasonable degree of care and diligence
  • act in a way that enhances public confidence in local government.

The Model Code and Model Procedure updates come as part of the state government’s commitment to improving the integrity, transparency and accountability of the local government sector. The key changes to the Model Code and Model Procedure are discussed below.

Model Code

Amended definitions

Two amendments have been made to definitions provided in the Model Code (and in the Model Procedure):

  • the definition of ‘council committee’ has been amended to include the council’s audit, risk and improvement committee
  • the definition of ‘council committee member’ has been expanded to include a person other than a councillor who is a member of the council’s audit, risk and improvement committee.

Harassment and discrimination

A number of the grounds on which harassment and discrimination occur have been refined so that the grounds listed under clause 3.6 of the Model Code now include “age, disability, race (including colour, national or ethnic origin or immigrant status), sex, pregnancy, marital or relationship status, family responsibilities or breastfeeding, sexual orientation, gender identity or intersex status or political, religious or other affiliation”. The amending grounds replace the grounds of “domestic status”, “homosexuality”, “disability”, “transgender status”, “infectious disease” and “carer’s responsibilities”, and expand the ground of “race”.

Personal benefit

Two amendments have been made to Part 6 of the Model Code, which covers personal benefit:

  • a reference to a gift or benefit in Part 6 has been amended to specifically not include “items with a value of $10 or less” or “a benefit or facility provided by the council to an employee or councillor” (clause 6.2)
  • clauses 6.8 to 6.11 have been amended to increase the monetary limit for gifts and benefits to be considered of token value from $50 to $100.

Compliance with the requirements under the Code Procedure

The obligation for a councillor or general manager to comply with any council resolution requiring them to take action as a result of a breach of the Model Code has been removed. This obligation was previously found in clause 9.9.

Model Procedure

A number of amendments to the Model Procedure come as a consequence of the decision in Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 (Cornish).

By way of summary, in 2014 a complaint about Mr Cornish (a councillor on Penrith City Council) was referred to the Council’s conduct reviewer, who found that Mr Cornish had breached the Council’s Code of Conduct. The Council resolved that Mr Cornish should publically acknowledge the findings, offer an unqualified apology, undertake not to make negative or derogatory comments and attend training within three months of the report. Mr Cornish failed to comply with the resolution. The matter was referred to the Office of Local Government (OLG), which lodged an application with NCAT. NCAT found that in failing to comply with the resolution, Mr Cornish had breached the Code, and subsequently suspended his pay for three months. Mr Cornish appealed on the basis that the Council did not have the statutory power to impose the disciplinary sanctions. The Court found that there was a delineation between the power to censure given to councils and the more expansive power of the Departmental Chief Executive and NCAT. The Council resolution purporting to exercise more expansive disciplinary powers was found to be beyond power under the legislation and could not be conferred by a code of conduct or procedural code. The Council resolution was therefore invalid and his failure to comply with the resolution could not form the basis of suspension.

The establishment of a panel of conduct reviewers

The requirement for councils to take actions ‘by resolution’ has been removed from clauses 3.1, 3.2 and 3.10. The clauses now read as follows:

  • The council must establish a panel of conduct reviewers (clause 3.1).
  • The council may into an arrangement with one or more other councils to share a panel of conduct reviewers including through a joint organisation or another regional body associated with the councils (clause 3.2).
  • The council may terminate the panel of conduct reviewers at any time (clause 3.10).

Preliminary assessment of the code of conduct about councillors or the general manager by a conduct reviewer

In relation to the investigation of alleged breaches of the Model Code by councillors or a general manager, clauses 6.22 and 6.23 of the Model Procedure have been amended to specifically refer to the “formal censure of a councillor under section 440G of the LGA or disciplinary action against the general manager under their contract of employment…” as potential outcomes of an investigation.

Investigation and resolution of code of conduct complaints about councillors or the general manager

Part 7 has been heavily amended following the decision of Cornish referred to above. The most significant amendments are:

  • the recommendations that an investigator may make following a determination that the conduct alleged constitutes a breach of the code of conduct have been significantly limited (clause 7.37, formerly clause 7.36). Seven recommendation options have been removed, leaving just three
  • a new clause 7.39 has been inserted, providing that where the investigator has determined that there has been a breach of the code of conduct, the investigator may, in addition to making a recommendation under clause 7.37, recommend that the council revise any of its policies, practices or procedures
  • a new clause 7.45 has been added, providing that where it is apparent to the complaints coordinator that the council will not be able to form a quorum to consider the investigator’s report, the complaints coordinator must refer the investigator’s report to the Office for its consideration instead of reporting it to the council under clause 7.44
  • a new clause 7.59 has been added, providing that where the council censures a councillor under section 440G of the LGA, the council must specify in the censure resolution the grounds on which it is satisfied that the councillor should be censured by disclosing in the resolution, the investigator’s findings and determination and/or such other grounds that the council considers may be relevant or appropriate.

Oversight and rights of review

Part 8 has also been amended as a result of the decision in Cornish. Of particular note, clause 8.11 has been amended so that a councillor who is the subject of a sanction imposed under clause 7.58(c), being that they be formally censured under section 440G of the LG Act and that the matter be referred to the OLG for further action under the misconduct provisions of the LGA, is prevented from seeking a review of the investigator’s determination and recommendation.

Summary

Section 440 of the Act requires every council and joint organisation to adopt a code of conduct that incorporates the provisions of the Model Code. Failure by a councillor to comply with the standards of conduct prescribed under the Model Code constitutes misconduct for the purposes of the Act.

A number of amendments have been made in the context of the decision in Cornish. However, despite these changes, the Model Code has been criticised by the Local Government NSW (LGNSW) whose president has suggested that the government missed an opportunity to consult with councils when creating the Model Code, which may have aided the achievement of more changes to assist councils and communities.

In the media

Government’s new Council Code of Conduct brings even greater transparency NSW local government’s peak body has welcomed the State Government’s updated Model Code of Conduct for Local Councils, which will bring even higher levels of council transparency and accountability, giving increased power to the Office of Local Government (OLG) to impose penalties (11 August 2020). More…

Coronavirus triggers drop in prisoner numbers and an opportunity to reinvent the criminal justice system, lawyers say A dramatic decline in the number of people behind bars during the coronavirus pandemic presents a significant opportunity for governments to review policies that had been driving up prisoner numbers before the crisis, experts say (09 August 2020). More…

Disability accesses public transport ticket The Australian Human Rights Commission (AHRC) has released new guidelines for public transport operators, setting out standards for ensuring people with disability enjoyed ‘equivalent access’ when using transport services (03 August 2020). More…

Easier hospital access for domestic violence victims Victims of domestic and family violence will now have easier access to NSW public hospitals for the treatment of their injuries, as part of the NSW Government’s COVID-19 response (13 August 2020). More…

A fine time to pay online and other court upgrades NSW courts are introducing new look websites that will make it faster and easier for the community to access important information and pay fines (10 August 2020). More…

NSW first to pass national defamation reforms The NSW Parliament became the first jurisdiction in Australia to legislate far-reaching reforms to defamation laws to unclog courts from trivial claims, to rein in massive payouts for non-economic loss and to support public interest journalism (06 August 2020). More…

New birth certificates to recognise adoption Adopted people in NSW will be able to have both their birth and adopted families included on a birth certificate for the first time in the State’s history following new reforms introduced to Parliament (05 August 2020). More…

In practice and courts

High Court (2021 Sittings) Rules 2020 The High Court of Australia has published the High Court (2021 Sittings) Rules 2020, which set out the Court’s sitting schedule for 2021. More…

ABA protocols – conduct of judges in Commonwealth courts and AAT Protocols directed to judicial conduct entered into by the Australian Bar Association with the Federal Court of Australia, the Family Court of Australia, the Federal Circuit Court of Australia and the Administrative Appeals Tribunal have been recently updated. The protocols are no longer restricted to conduct in court. More…

AAT Bulletin The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions Issue No. 21/2020, 10 August 2020. More…

Inquiries and consultations as of 12 August 2020 Insurance Inquiry, Australia Small Business and Family Enterprise Ombudsman Inquiry into the human rights of women and girls in the Pacific, Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade Litigation funding and the regulation of the class action industry, Parliamentary Joint Committee on Corporations and Financial Services (supplementary submission) News media bargaining code, Australian Competition & Consumer Commission Review of AFP Powers, Parliamentary Joint Committee on Intelligence and Security Review of ‘Declared Areas’ Provisions, Parliamentary Joint Committee on Intelligence and Security Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Royal Commission An Investigation into the effectiveness of ATO communications of taxpayers’ rights to complain, review and appeal, Inspector-General of Taxation Review into the Framework of Religious Exemptions in Anti-discrimination Legislation, Australian Law Reform Commission

NSW Law Society: 2019/2020 Workplace Gender Equality Agency (WGEA) Report has been lodged The Law Society has lodged the 2019/20 Workplace Gender Equality Agency (WGEA) Report. WGEA is an Australian Government statutory agency created by the Workplace Gender Equality Act 2012 and aims to promote and improve gender equality in Australian workplaces (10 August 2020). More…

JUDCOM Criminal Trial Courts Bench Book 3 August 2020 – The suggested directions and accompanying text of the Criminal Trial Courts Bench Book are produced as guidelines only Criminal Trial Courts Bench Book – Update 63 published 3 August 2020 – The following changes have been incorporated into this update: sexual assault communications privilege This chapter has been revised at Introduction and Applications for leave

COVID-19: Information for attending court The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has again been updated in terms of recent developments.(14 August 2020).

Coronavirus (COVID-19): Current hearing arrangements to continue at NCAT NCAT has been conducting all stages of its hearings by phone, audio visual link or on the papers since 30 March 2020. These current arrangements will continue until at least the end of August 2020. More…

NCAT 12 August 2020 Current hearing arrangements to continue at NCAT until December 2020 06 August 2020 NCAT has a new website coming soon

Reminder: 2020 professional standards scheme commences The fourth New South Wales Bar Association Professional Standards Scheme commenced, 1 July 2020 and will remain in effect until 30 June 2025. More…

ICAC Prosecution briefs with the DPP and outcomes Prosecution briefs that are currently with the Director of Public Prosecutions (DPP), and the outcomes of DPP advice and prosecutions in relation to ICAC investigations over the past five years. More…

JUDCOM: Decisions reserved The Court of Appeal maintains a list of matters before the Court for which judgment is reserved. The list is updated weekly. More…

Administrative review of the Bail Act 2013 The NSW Department of Communities and Justice is reviewing the Bail Act 2013 to determine whether the policy objectives remain valid and if the terms remain appropriate for securing those objectives. Submissions close on 6 August 2020. More…

Resumption of defended hearings in the Local Court of NSW – information for solicitors There are two cohorts of those matters: matters that were listed for hearing from 23 March 2020 to 4 May 2020 and those listed for 4 May – 31 July 2020 (as per paragraph 12 of Memorandum 10). The Court is endeavouring to ensure that as far as possible these defended hearings proceed as defended hearings and are not the subject of pleas of guilty on the day of the hearing or of adjournments or delay. More…

Published – articles, papers, reports

NSW school education: PISA 2018, socioeconomic background and proposals for reform Issues Backgrounder 02/2020 by Tom Gotsis Reflecting national outcomes, NSW students from the lowest socioeconomic quartile performed approximately three years behind students from the highest socioeconomic quartile. PISA 2018 data further suggests that socioeconomically disadvantaged students may have been particularly disadvantaged by the need for remote learning due to COVID-19 social distancing requirements. More…

Artificial intelligence in communications and media: Occasional paper ACMA: 03 August 2020 This report explores artificial intelligence (AI) technologies within the communications and media markets, and the challenges and opportunities they bring. More…

Internet of Things in media and communications: Occasional paper ACMA: 03 August 2020 This paper explores the impacts of the Internet of Things (IoT) across the media and communications environment. It examines the key components of IoT, consumer and industry applications, market and usage trends, key challenges, and the implications for our regulatory environment. More…

Australia’s cyber security strategy 2020 Department of Home Affairs (Australia); Government of Australia: 06 August 2020 Through this strategy, the Australian government will attempt to build trust in the online world by supporting businesses’ cyber resilience, including by sharing threat information, setting clear expectations of roles and strengthening partnerships. More…

Online fraud victimisation in Australia: Risks and protective factors Emami, Catherine, Smith, Russell, Jorna, Penny: Australian Institute of Criminology: 31 July 2020 [Latest Update: 10-08-2020] Online fraud includes dating or romance scams, deceptive sales of products and services, dishonest investment schemes, lottery or inheritance scams, working from home scams or lottery fraud involving false prize draws or sweepstakes. These findings support the development of targeted awareness-raising campaigns focusing on the online behaviour most likely to lead to fraud victimisation. More…

Murray–Darling Basin water markets inquiry Interim report Australian Competition and Consumer Commission (ACCC): August 2020 The report found that the $1.5 billion-a-year basin water markets had outgrown the frameworks that governed them, with change needed for the market to operate efficiently and for the benefit of industries that depended on it. More…

NSW Custody Statistics: Quarterly update June 2020 NSW Bureau of Crime Statistics and Research: 04 August 2020 Aboriginal people; prison; prison population; remand; sentenced custody; social distancing; Women; Young people. More…

The impact of COVID-19 measures on the NSW adult prison population Nicholas Chan; BOSCAR Bureau Brief No. 149: 04 August 2020 Aboriginal people; Coronavirus; COVID-19; prison; prison population; remand; sentenced custody; Women. More…

Cases

Barrett v Department of Planning, Industry and Environment [2020] NSWCATAD 196 ADMINISTRATIVE LAW – Public access to government information – Legal professional privilege – waiver

Andrew Kennedy Funeral Directors Pty Ltd v Commissioner of Fair Trading [2020] NSWCATAD 195 ADMINISTRATIVE LAW – costs – whether there are special circumstances warranting an award of costs Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997; Government Information (Public Access) Act 2009

Commissioner of Police v DTN [2020] NSWCATAP 165 ADMINISTRATIVE LAW – Privacy – appeal from an interlocutory decision of the Tribunal – leave to appeal – application for internal review of conduct – meaning of ‘the time the applicant first became aware of the conduct the subject of the application’ – principal and agent – imputed knowledge

Rae v Commissioner of Police [2020] NSWCATAD 189 ADMINISTRATIVE REVIEW – government information – reviewable decision – conclusive presumption against disclosure – public interest considerations against disclosure – private rights and public interest considerations in favour of disclosure – balancing of public interests Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Civil Liability Act 2002; Government Information (Public Access) Act 2009; Police Act 1990; Privacy and Personal Information Protection Act 1998

Legislation

NSW

Regulations and other miscellaneous instruments Local Government (General) Amendment (Conduct) Regulation 2020 (2020-472) — published LW 14 August 2020 Crimes (Administration of Sentences) Amendment (X-ray Scanning) Regulation 2020 (2020-449) — published LW 7 August 2020 Crimes Regulation 2020 (2020-450) — published LW 7 August 2020 Director of Public Prosecutions Regulation 2020 (2020-451) — published LW 7 August 2020 Evidence Regulation 2020 (2020-452) — published LW 7 August 2020 Fines Regulation 2020 (2020-453) — published LW 7 August 2020 Subordinate Legislation (Postponement of Repeal) Order 2020 (2020-455) — published LW 7 August 2020 Summary Offences Regulation 2020 (2020-456) — published LW 7 August 2020

Bills introduced Government Adoption Legislation Amendment (Integrated Birth Certificates) Bill 2020 Police Amendment (Promotions) Bill 2020

Non-Government Anti-Discrimination Amendment (Sex Workers) Bill 2020

Bills assented to Digital Restart Fund Act 2020 No 15 — Assented to 03 August 2020

For the full text of Bills, and details on the passage of Bills, see Bills.



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