Big changes are recommended for handling misconduct by councillors in NSW and the Byron Shire Council has voted, at least initially, to support them.
The state government commissioned an independent review of how allegations of councillor misconduct are dealt with in 2021. The Minister for Local Government said the people of NSW expected their elected Council representatives to uphold the highest standards of behaviour, and anyone who breached that trust should face the consequences.
Mr Gary Kellar holds an Australian Public Services Award and oversaw the review, with his findings report made available online late last year via the NSW Office of Local Government.
Mr Kellar made 49 recommendations and the Byron Shire Council staff recently highlighted some to councillors in their first ordinary meeting for 2023.
New independent commission to investigate council complaints
The key change Mr Kellar recommended was a new independent Councillor Conduct Commission, taking over the power of council general managers to handle complaints.
Mr Kellar said the new commission would oversee independent Councillor Conduct Review Panels, as well as tougher fines and sanctions for misconduct, including fines for individuals.
Councils who experience misconduct would be jointly required to meet the costs of the independent panels and the commission with the NSW Government.
QLD councillor training course recommended
As well as reviewing and recommending changes to misconduct management, Mr Kellar recommended a focus on training.
His list of recommendations included mandatory free training for local government election candidates before they can nominate, and said Queensland already had an online guide that New South Wales should follow.
He also recommended ongoing mandatory training and professional development for elected councillors, with extra management training for mayors.
A separate code of conduct for councillors was recommended, covering all forms of meetings, briefings and workshops; adding to revised codes of practice for council meetings.
Mr Kellar was very strong on a separate code of conduct for councillors, going further to recommend serious breaches of the code be treated as breaches of a councillor’s oath and affirmation of office.
Mayors to have power to expel councillors from meetings
Mr Kellar also recommended strengthening the mayor or other chair’s powers and obligations at meetings.
Mayors would be legally obligated to expel disruptive councillors from meetings, and could do so without a vote.
The recommendations went even further, calling for other councillors to be legally obliged to support mayors in maintaining conduct.
Where the situation presumably escalated, the review recommended provisions for another stakeholder agency to send in a meeting conduct advisor or moderator.
Greater transparency on complaints against councillors
Some of the changes recommended that staff didn’t highlight are also interesting, especially the recommendation that all council meetings, even confidential ones, or parts thereof, that are closed to the public, should be recorded both in audio and visual and for the recording to be kept on file.
There is also a recommendation for the Councillor Conduct Commissioner to be required to keep a register of complaints and their management, with appropriate details published on the Commissioner’s website.
Mr Kellar has also recommended New South Wales start an annual forum with similar council misconduct review agencies from other states and the Northern Territory.
No time for council debate before Code of Conduct review deadline
In this year’s first ordinary Byron Shire Council meeting, staff said they mostly supported the recommendations, which hadn’t been received until the end of last year.
Staff said they did make one suggestion: for the office of local government to look into financial incentives for compliance with training requirements as opposed to penalties for non-compliance.
They presented the submission sent to the office of local government seeking the council’s endorsement or amendment, saying any changes would be filed as a late submission.
Independent Byron Shire Councillor Cate Coorey spoke in support of the staff submission and went into more detail about Mr Kellar’s report beyond the recommendations.
Councillors found to bring others into disrepute to be in breach
Cr Coorey said the report talked of widespread cynicism in the community when it came to council complaint investigations.
She said it called for the costs of investigating complaints incurred by applicants to be compensated if found to be valid and for associated fees to be reduced, such as state freedom of information requests known as GIPAs.
When introducing her move to support the staff recommendations, Cr Coorey referred to the recommendation of a new Councillor Code of Conduct.
Cr Coorey said it made clear that councillors would have to publicly disclose any submissions made to other bodies dealing with the council.
Any attempt to, or perceived attempt to, cast aspersions on other councillors or council staff, bringing them into disrepute, for example by accusing them of failing to perform their duties would be considered a Code of Conduct breach.
Biggest changes to ‘onerous’ system in 30 years welcomed
Later Cr Coorey told The Echo there was ‘little to encourage a member of the community, or another councillor, to bring a complaint against a council member or council staff’ under the current system.
Cr Coorey said the process was onerous and penalties in most cases weren’t ‘commensurate with the activity’.
‘It is hardly suitable punishment for a Councillor to merely be censured for activities that many in the community would feel deserve something more harsh,’ Cr Coorey said.
‘Also, the problem of confidentiality in the process means that many real breaches never see the light of day unless there is a referral to ICAC or criminal charges laid,’ she said.
‘Activities that are unethical, but not necessarily criminal, for example, should be made known to the public, given that we have an expectation regarding the behaviour of councillors.’
Council staff say costs of councillor conduct commission negligible
Greens Councillor Duncan Dey raised the issue of costs of the new commission and panels to councils, and Mayor Michael Lyon asked why the community should have to help pay for the costs of councillors who received repetitive complaints against them.
However, the review’s recommendations included financial penalties for councillors with complaints upheld against them, and staff said the new costs of the councillor conduct commission would simply replace current costs to the Council of investigating complaints.
Minister of Local Government Wendy Tuckerman said last year the changes were the biggest to local government integrity measures in thirty years.
The minister released a statement when the report was released in December saying the people of NSW expected their elected representatives to uphold the highest standards of behaviour and anyone who breached that trust should face the consequences.
I assume the same conditions will obtain at state government level.