Banyule City Council Special Meeting Agenda 9 May 2016

Special Meeting of Council

Council Chambers, Service Centre

275 Upper Heidelberg Road, Ivanhoe

9 May 2016 commencing at 7.00pm

AGENDA

Acknowledgement of the Traditional Owner, the Wurundjeri willam people

"Our meeting is being held on the Traditional Land of the Wurundjeri willam peopleand, on behalf of Banyule City Council, I wish to acknowledge them as the TraditionalOwners. I would also like to pay my respects to the Wurundjeri Elders, past andpresent, and to the Elders of other Aboriginal peoples who may be here today.”

Apologies and Leave of Absence

6. Performance - Use Our Resources Wisely

6.1 Councillor Code of Conduct - review..............................................................3

Closure of Meeting

Performance - Use Our Resources Wisely

Special Meeting of Council - 9 May 2016 Page 3

6.16.1 COUNCILLOR CODE OF CONDUCT - REVIEW

Author: Vivien Ferlaino - Governance Co-ordinator, Corporate Services

EXECUTIVE SUMMARY

The Local Government Act 1989 Act (The Act) section 76C requires each council toadopt a Councillor Code of Conduct (the Code). The reforms arising from the LocalGovernment Amendment (Improved Governance) Act 2015 require councils toreview and comply with new requirements for the Councillor Code of Conduct by 4July 2016.

A special meeting must be called solely for the purpose of reviewing the CouncillorCode of Conduct. On 4 April Council set this meeting for the 9 May 2016.

The new requirements include:

• The Code must include an internal resolution process for addressing allegedcontraventions of the Councillor Code of Conduct.

• Internal resolution process will provide for the appointment of an independentarbiter.

• Each Councillor must read and make a declaration stating that they will abideby the revised Councillor Code of Conduct and that the Code be signed by allCouncillors and witnessed by the CEO.

• New Conduct provisions.

Council will also be required to review the Code within 4 months after the Generalelection.

RECOMMENDATION

That:

1. Council, adopt the reviewed Banyule Councillor Code of Conduct.

2. It be noted Councillors (insert names) signed and declared in writing to abideby the Councillor Code of Conduct at all times, and that this declaration wasmade in front of, and witnessed, by the Chief Executive Officer as requiredunder Section 76C(6B) of the Local Government Act 1989.

OFFICER DECLARATION OF CONFLICT OF INTEREST

Section 80C of the Local Government Act 1989 (Act) requires members of Councilstaff, and persons engaged under contract to provide advice to Council, to discloseany direct or indirect interest in a matter to which the advice relates.

Council officers involved in the preparation of this report have no conflict of interest inthis matter.


COUNCILLOR CODE OF CONDUCT - REVIEW cont’d


6.1 CITY PLAN

This report is in line with Council’s City Plan key direction to “enable goodgovernance and accountability with minimal risk”.

BACKGROUND

The new provisions of the Local Government Amendment (Improved Governance)Act 2015 are now effective. The Amendment Act contained substantial reforms tothe Councillor Conduct framework and the governance requirements for Councils

The key changes relating to the Conduct framework, include:

• Requiring newly elected councillors to make a declaration that they will abideby the Council's Councillor Code of Conduct (the Code).

• Introducing a mandatory internal resolution procedure within Councils.• Make improvements to the Councillor Conduct panels including the capacity for

panels to hear serious misconduct matters.• Strengthening powers of the Chief Municipal Inspector ('CMI'), and allow the

Minister to seek an order in Council to stand down problematic Councillors.• Two new offences for breach of confidentiality and directing staff. An offence

under these provisions will now invoke a penalty of up to 120 penalty units(over $18,000) which is on a par with breach of the conflict of interest provisionof the Act.

The Code is designed to assist Councillors in maintaining the highest standards ofconduct and behaviour as well as provide a means for dealing with conflicts whichmay occur. The Code is also intended to assist the Mayor, Deputy Mayor andCouncillors to discharge their public office appropriately.

On 4 April Council set a Special meeting for the 9 May 2016 for the Councillor Codeof Conduct review. Public notices were placed in the Heidelberg and Diamond Valleyleader on the 19 and 20 April 2016, the public notice was also displayed at Council’sservices centres and on Council’s website.

HUMAN RIGHTS CHARTER

Victoria's Charter of Human Rights and Responsibilities (the Charter) outlines thebasic human rights of all people in Victoria. The Charter requires that governments,local councils and other public authorities comply with Charter and to considerrelevant Charter rights when they make decisions.

In developing this report to Council, the subject matter has been considered inaccordance with the requirements of the Charter of Human Rights andResponsibilities.

It is considered that the Councillor Code of Conduct supports human rights issues.




6.1Your right to privacy and reputation

The additional conduct provisions for Councillors to recognise the requirements ofthe Privacy & Data Protection Act, Banyule’s Privacy Policy and Records InformationManagement Policy regarding access, use and release of personal information,which also applies to Councillors, further enhances this right.

Your right to freedom of thought, conscience, religion and belief and Your rightto freedom of expression

The Code includes the conduct provisions of:

• Treating all people with courtesy and respect, recognising that there arelegitimate differences in opinions, race, culture, religion, language, gender andabilities.

• Not making allegations which are personally offensive, derogatory ordefamatory.

LEGAL CONSIDERATION

COUNCILLOR CODE OF CONDUCT REQUIREMENTS

Under the new requirements introduced by the Amendment Act, Council must reviewthe Councillor Code of Conduct and make any necessary changes at a Specialmeeting of the Council called solely for that purpose by 4 July 2016. The Code mustinclude an internal resolution process for addressing alleged contraventions of theCouncillor Code of Conduct, which amongst other things, provides for the selection ofan independent arbiter.

The MAV has developed a draft Councillor Code of Conduct designed to meet therequirements of the recent changes to the Act. The draft Code provides a minimalistcompliance approach. Officers recently attended a training session undertaken byMacquarie Lawyers to discuss the requirements of the Act and the draft Codeincludes items discussed at the session along with elements of the MAV draft Modelcode.

DECLARATION

Within one month of any amendment being made to the Councillor Code of Conduct,all Councillors must make a declaration stating that they will abide by the revisedCouncillor Code of Conduct. This declaration must be signed and witnessed by theCEO (section 76C of the Act).

A failure to make a declaration to abide by the Councillor Code of Conduct is now aground for disqualification as a Councillor.

PUBLIC ACCESS

The Councillor Code of Conduct must be made publically available on Council’swebsite, this must be done as soon as practicable after it is adopted.




6.1

INTERNAL RESOLUTION PROCEDURE

Section 81AA of the Act requires Council to develop and maintain an internalresolution procedure for the purposes of addressing an alleged contravention of theCouncillor Code of Conduct by a Councillor.

The internal resolution procedure of a Council must—

(a) be specified in the Councillor Code of Conduct; and(b) incorporate any prescribed processes including any application process; and(c) provide for the selection of an arbiter who is suitably independent and able to

carry out the role of arbiter fairly; and(d) specify the role an arbiter is expected to undertake in the conduct of any

internal resolution procedure including that the arbiter must.

POLICY IMPLICATIONS - BANYULE’S DRAFT CODE OF CONDUCT

Council’s Code of Conduct has been as revised (attached) to include the newrequirements of the Improved Governance Act. It is envisaged that Council willundertake a major review after the general election as it did in 2013 post the 2012elections.

CHANGES

• Roles of Councillors, Mayor and CEO updated and new definitions incorporatedin Code.

• Internal resolution process updated to ensure compliance with the Act includingappointment of an Arbiter.

• Use of notes to reference legislation.• Updated language.• Code to also apply to manage complaints against Councillors from the public or

staff to avoid the matter escalating directly to the Ombudsman or the ChiefMunicipal Inspector (CMI).

Independent Arbiter

It is critical that when allegations of poor conduct are levelled against a Councillorthat these are fairly tested. Accordingly, the internal resolution procedure mustinclude an independent arbiter who is able to consider alleged violations of the Codeof Conduct and make final determinations on them fairly and without bias. Personssubject to allegations must be given an opportunity to be heard. Decisions by thearbiter must be supported by written reasons.

The MAV has approved an expression of interest process to establish a localgovernment panel of arbiters. The MAV advised that expressions of interest will beinvited shortly. It is intended to have the local government arbiter’s panel in place bythe end of June 2016. MAV will publish a list of arbiters on its website and Councilswill be able to directly engage with an arbiter of their choice.




6.1Sanctions for breaches of the Code

Section 81AB specifies that councils may impose sanctions through their internalresolution procedure for breaches of their Code. These must be voted on by councilas a whole and they may include:

• Requiring an apology.• Suspension from up to two Council meetings.• Direction that they not attend or chair an advisory or special committee for up to

two months.• Direction that they be removed from a position where they represent Council for

up to two months.

These sanctions are aimed at ensuring Councillors know the consequences of theiractions in breaching the standards of behaviour that they, as Councillors, haveadopted. The sanction framework is designed to assist councils assumeresponsibility for resolving behavioural and conduct issues occurring within thecouncil.

The primacy given to councils addressing councillor conduct internally is reinforcedby the way applications to establish panels are dealt with. The Principal CouncillorConduct Registrar is required to refer matters back to a Council to resolve if theinternal Council Code process has not been exhausted prior to an application for apanel.

Principal Councillor Conduct Registrar

The Principal Councillor Conduct Registrar (PCCR) is a new appointment that sitswithin Local Government Victoria and is responsible for receiving applications forCouncillor Conduct Panels and determining whether panels should be formed. Indetermining whether to form a panel, the PCCR must be satisfied that:

• An application is not frivolous, vexatious, misconceived or lacking in substance;and

• There is sufficient evidence to support an allegation of misconduct or seriousmisconduct; and

• The Council has taken sufficient or appropriate steps to resolve the matter orhas provided satisfactory reasons for not taking the steps

A new Council role of Principal Conduct Officer (PCO) has also been created withinthe Act to assist the PCCR in their role. The PCO must be a Council Officer and issimilar to the previous role of the Councillor Conduct Panel (CCP) Registrar. ThePCO must be a Senior staff member (other than the CEO). The CEO appointed theManager of Governance & Communication on 7 March 2016. This positionpreviously held the CCP Registrar role for Banyule.




6.1

Conduct Management

The Councillor Conduct Framework is aimed at ensuring Councillors conductthemselves in accordance with standards expected. This includes the standardsCouncillors collectively set themselves in their Councillor Codes of Conduct.

These reforms create a hierarchy for management of councillor conduct issues, with:

• councils dealing with breaches of Councillor Conduct Codes;• Panels dealing with the majority of cases;• VCAT dealing with exceptional cases.

Section 3(1) provides new definitions. These new definitions for misconduct, seriousmisconduct and gross misconduct are summarised in the table below, along with theauthority responsible for addressing the matter.

Degree of Seriousness Definition Responsible Authority

Conduct inconsistent withstandards Council has setitself

Breaches of Councillor Codes ofConduct

Council

Misconduct Failing to comply with aCouncil’s internal resolutionprocedure, including failure toabide by any decision of Councilin relation to a breach of theCode and repeated breaches ofCouncillor Conduct Principles

Panel

Serious misconduct Failing to comply with panelprocesses, bullying, improperlydirecting staff, releasingconfidential information andrepeated misconduct

Panel

Gross misconduct Behaviour that demonstrateslack of character to be aCouncillor

VCAT

Bullying which is a form of serious misconduct is defined as repeated unreasonablebehaviour that creates a risk to the health and safety of another councillor or amember of council staff. This is consistent with the definition of bullying used in theFair Work Act 2009 and by WorkSafe.

The new hierarchy for management of councillor conduct issues is designed to:

• Reinforce the responsibility and authority of councils to manage breaches ofagreed conduct through a mandatory internal resolution procedure

• Only escalate management of misconduct and serious misconduct to panelswhen councils cannot resolve the matter internally

• Give panels greater powers to manage and resolve misconduct and seriousmisconduct

• Retain the capacity to manage gross misconduct through VCAT




6.1TIMELINES

Council is required to review and adopt its Code of Conduct by 4 July 2016. Councilwill also be required to review and adopt a Councillor Code of Conduct within 4months after a general election.

CONCLUSION

The Councillor Code of Conduct has been developed in accordance with Council’sobligations under the Act.

The Councillor Code of Conduct is an important document for Councillors as it setsout the expected and legislated behaviours and conduct of Councillors to ensure theyserve the Banyule community with a high degree of integrity and honesty.

ATTACHMENTS

No. Title Page

1 Draft Councillor Code of Conduct

Item: 6.1 Attachment 1: Draft Councillor Code of Conduct


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Documents

Banyule City Council Special Meeting Agenda 9 May 2016