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Byron Shire
June 22, 2021

Byron Council’s code of conduct allows pecuniary interest – OLG replies

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A spokesman for the Office of Local Government (OLG) has explained further the new model Code of Conduct for NSW councils, which aims to consolidate ‘all ethical standards into one statutory instrument for the first time to improve understanding, compliance, and enforcement’.

The model Code of Conduct outlines the ethical and legal requirements of councillors, council staff, committee members, council delegates, and advisers.

Byron Shire Council’s draft document, which is expected to go on public exhibition soon, was labelled ‘despicable’ by former councillor Duncan Dey (Greens).

Clause 5.28 of the Code of Conduct  reads, ‘The minister for Local Government may, conditionally or unconditionally, allow a council committee member who has a pecuniary interest in a matter with which the council is concerned to be present at a meeting of the committee, to take part in the consideration or discussion of the matter and to vote on the matter if the minister is of the opinion that it is in the interests of the electors for the area to do so’.

Statewide template

An OLG spokesman said, ‘Under the Local Government Act 1993, Councils must adopt a code of conduct that incorporates the provisions of the Model Code of Conduct for Local Councils in NSW. Councils may supplement the provisions of the Model Code of Conduct and impose more onerous requirements, but must not dilute the standards.

‘Clause 5.28 of Byron Shire Council’s draft code of conduct for committee members and delegates is based on clause 4.38 of the Model Code of Conduct. Clause 4.38 was previously contained in section 458 of the Local Government Act 1993.

‘It allows the minister for Local Government to exempt a person from the requirement to remove themselves from a meeting where they have a pecuniary interest if the meeting faces a loss of quorum or where it is otherwise in the community’s interest for the person to participate in consideration of the matter.

‘Where exempted, the person is still required to disclose the interest for transparency.

Rigorous process

‘The minister for Local Government’s powers under section 458 of the Local Government Act 1993 are subject to a rigorous application process and are not commonly used.

‘Since 2011, just 11 applications have been approved – ten of which related to a loss of quorum and one was determined to be in the community’s interest’.

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  1. These things here are subject to the law so a lawyer needs to look and judge what has been written.
    But this article is published and on display for the public to comment publicly. I am sure many people would agree with Duncan Dey that some parts are ludicrous.

    In Clause 5.28 it reads “… if the minister is of the opinion that it is in the interests of the electors for the area to do so’.
    That is being subjective in being of an ‘opinion’ as opinions are subject to emotions and can change according to the emotion on that day or at that time.

    Also it allows the minister to exempt a person from removing him or herself according to the numbers for a quorum. So what is important are the numbers for the vote and not about the morality or immorality of what the vote is about.
    So these rules therefore seem to encourage and promote expediency and not to discourage it.

    As I said these changes need to go to a lawyer to decide if there is a change to the standard of ethics?

  2. Isn’t it amazing how governments try to impose laws that are in direct conflict with normal social ethics. If you were lining up for a pay rise would you expect to be on the committee deciding the issue?


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