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:
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):
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:
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:
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:
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.
Authors: Christine Jones & Rebecca Weakley
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...
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New birth certificates to recognise adoption
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High Court (2021 Sittings) Rules 2020
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AAT Bulletin
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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
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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
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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
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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
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Internet of Things in media and communications: Occasional paper
ACMA: 03 August 2020
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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...
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
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.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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